R. v. Heintzelman, 2018 BCPC 354

Citation: R. v. Heintzelman 2018 BCPC 354 Date: 20181220 File No: 171785-C-4 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION pursuant to s. 486.4 and s. 486 of the Criminal Code REGINA v. JOHN THOMAS HEINTZELMAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: P. Donnachie Counsel for the Defendant: J.M. Firestone Place of Hearing: Victoria , B.C. Dates of Hearing: November 19 - 22, December 18, 2018 Date of Judgment: December 20, 2018

The Issue [ 1 ] Mr. Heintzelman is charged with two counts of sexual assault. He denies that he touched anyone inappropriately. The Evidence [ 2 ] Mr. Heintzelman is a massage therapist, who carries on his practice from a studio in the basement of his home in Victoria. One enters the studio by walking along a concrete path from the sidewalk to the side of the house and down a short flight of stairs to the studio door. Mr. Heintzelman provides three kinds of therapy: Swedish massage, hot stone massage and “Bowen Therapy”. The first two are massage treatments.

Bowen Therapy consists of directed movements of the limbs. [ 3 ] The first count arises from events which occurred between July and December, 2013. The complainant, T.T. was referred to Mr. Heintzelman by a women’s centre for treatment of migraines. The following is a

summary of her evidence. Her first few visits were uneventful. On her last visit, Mr. Heintzelman instructed her to go into the bathroom adjoining the studio and remove all of her clothes. When she returned, naked, to the studio, Mr. Heintzelman instructed her to lie on her back on the massage table. There was a fitted sheet on the table, but no other sheet and nothing to cover herself with. Mr. Heintzelman put warm stones under her back and took other warm stones in his hands. He rubbed the stones up and down her body, including her breasts, labia and clitoris.

He then removed his pants and shirt and continued the massage wearing only a pair of shorts. He pinched her nipples very hard. Then he placed her hand on his shorts. She could feel that his penis was erect and that there was moisture on his shorts at the tip of his penis. He cupped her hand around his penis and rocked his hips in such a way as to cause her hand to massage his penis. At one point, he started to climb up on the massage table.

Following that, she said “… the next thing I remember, I’m in the bathroom getting dressed.” She said that, throughout these events, she felt paralyzed and confused, and unable to speak or think. [ 4 ] T.T. suffers from a mental illness. At earlier times in her life, she suffered from visual and auditory hallucinations. Her present diagnosis is schizophrenia, but she disputes that diagnosis. She was prescribed, and was taking, anti-psychotic medication at the time of her encounters with Mr. Heintzelman, at the time of her police interview in November, 2017, and also when she gave evidence at trial.

There is no evidence from her treating physician and no other evidentiary basis on which I could assess the impact, if any, of her psychiatric condition or medication on the reliability of her evidence. [ 5 ] The second count arises from events which occurred in May – July, 2017. [ 6 ] In May, 2017, the complainant, E.M. purchased a gift certificate for Mr. Heintzelman’s services at a silent auction in support of a local cultural society. She arranged an appointment with Mr. Heintzelman for 1:00 p.m. on July 2, 2017. The following is a

summary of her evidence of her encounter with Mr. Heintzelman on that day. She attended at his studio at the appointed time. After some preliminary conversation, Mr. Heintzelman told her to remove all of her clothes and lie on her back on the massage table. He left the room while she disrobed. When he returned, he placed hot stones under her back and began to massage her legs. He spread her legs with his hands. When she resisted, he bent her knees to spread her legs wider apart, leaving her in a “frog position”. He massaged her labia and stroked her pubic hair and pubic mound. Then he massaged her breasts.

He pinched her nipples very hard. She sought to protest by making sounds of someone in pain, but he ignored her. He then turned his attention to her left arm, which he stroked downward from the shoulder to her left hand. He placed her cupped hand under his semi-erect penis with her fingertips on the tip. Then he moved her hand up and down so that it stroked his penis. It felt to her as if his penis were covered by a piece of loose cotton clothing. Then he repeated those actions with her right arm and hand. He instructed her to turn over and lie face down. The following exchange ensued E.M.

I hope that you are not going to massage my inner thighs again. Mr. Heintzelman: Yes. I was going to. E.M. Don’t. I don’t like that Mr. Heintzelman Why? Are you sensitive there? E.M. Yes. I am. Mr. Heintzelman: I can be very gentle. E.M. No. E.M. then rolled over to lie face down. Mr. Heintzelman immediately began to massage her inner thighs, followed by her buttocks. He slid his hand between her buttocks down to her labia and pubic mound. Then he told her to get dressed and left the room. She dressed and went out to the reception area, where Mr. Heintzelman was waiting for her, standing between her and the door.

He congratulated her extravagantly on her beauty and youthful appearance and offered her a free massage on her birthday. She gave him a brief hug, which she described as “my way to get to the other side of him”, so as to “get out of there safely”. E.M. said that, throughout these events, she felt vulnerable and powerless. [ 7 ] E.M. returned to her home and told her husband what happened. She reported the incident to the police on July 6, 2017 and a police investigation ensued. The police arrested and interviewed Mr. Heintzelman on July 9, 2017.

After the interview, he was released on bail, including a condition that he refrain from offering massage services while on bail. [ 8 ] Mr. Heintzelman said that he looked at E.M.’s Facebook page a day or two after July 2, 2017 and found a post describing his massage in glowing terms and recommending him to others. E.M. denies that she wrote any such post or made any comment about Mr.

Heintzelman on social media. Mr. Heintzelman said that, after his arrest, he looked for the post again, but it had been deleted. [ 9 ] On October 20, 2017, the Victoria Police Department published the following notice on Facebook: Investigators Seek Additional Victims After July Sexual Assault Victoria, BC – VicPD investigators are seeking additional victims after arresting a 65 year-old Victoria man for a sexual assault that took place in July of 2017. The sexual assault allegedly occurred in a business by the name of “James Bay Massage” or, prior to this, the business was called “Ancient Medicine”.

The victim attended the business, which is located in the 300 block of Kingston Street and was allegedly assaulted in the course of their treatment. Investigators believe that the practitioner, John Heintzelman, might have other victims as he has been working alone in his practice for several years. If you have been victimized, or have any information on his practice, please call our non-emergency line at (250) 995- 7654. To report what you know anonymously, please call Greater Victoria Crime Stoppers at 1-800-222-8477.

If you have been a victim, there are resources available to you including the Victoria Sexual Assault Centre …. T.T. saw the police notice on Facebook on the day that it was posted, and contacted the police with her complaint on the same day. She attended to provide a statement to the police on November 2, 2017. When asked why she did not complain to the police in 2013, she said: I suppressed it right away. I don’t know if that was the result of my medication or I just buried it. I was worried that I would not be believed because of my mental health issues. [ 10 ] Mr. Heintzelman gave evidence.

He denied that he touched either complainant in a sexual fashion. He said that he did not touch the genitals of either complainant, did not massage the breasts or pinch the nipples of either complainant, and did not bring the complainants’ hands into contact with his genitals. He says that he remained fully and properly dressed throughout each encounter. He acknowledged that he touched the side of E.M.’s breast when he was working on the muscles in her armpit, but described that as incidental and unintentional contact, not of a sexual nature. [ 11 ] Ms. W is Mr. Heintzelman’s wife.

From May, 2015 to November, 2017, she was the president of the cultural society which conducted the silent auction fundraiser at which E.M. purchased the gift certificate for Mr. Heintzelman’s services. E.M. and her husband were also active in the affairs of that society, and Ms. W had met both of them in that context before July, 2017. Ms. W said that she was at home on July 2, 2017. She was sitting in the living room, immediately above the massage studio, when E.M. arrived for her appointment and saw E.M. walk to the studio door on the lower level. She heard nothing unusual while the massage was administered.

She believes that she was also at home at the time of T.T.’s appointments, but cannot be sure of that because of the passage of time. Assessment of the Evidence [ 12 ] While demeanour is a notoriously unreliable guide to the assessment of credibility, it is worthy of some comment. Each of the witnesses in this case presented as eminently credible. There was nothing in their demeanour or in the presentation of their evidence which caused me to doubt their veracity or the accuracy of their recollection. [ 13 ] There was nothing inherently implausible about the evidence of any of the witnesses.

In particular, it is not surprising that a woman in the position described by the complainants would be too traumatized and frightened to cry out or to resist. I respectfully adopt the following remarks of Justice Milman in R. v. FJC 2018 BCSC 1443 ; [2018] BCJ No. 3053 at paragraph 44 : The law now recognises that victims of sexual assault will react in a myriad of ways to the trauma of having been assaulted.

Therefore, in assessing the credibility of a complainant …, the mere fact that she did not try to avoid the accused or report the alleged assault to others within a particular time, is not a proper basis upon which to discount her credibility and thereby harbour a reasonable doubt about the guilt of the accused, insofar as it would be based on discredited and stereotypical thinking about how people in general are supposed to behave in such circumstances …. [ 14 ] With one exception, there is no objective circumstance which renders one account of the events more or less plausible than another.

That exception is the presence of Ms. W in the house during E.M.’s massage appointment. Mr. Firestone, on behalf of Mr. Heintzelman, urges me to conclude that no rational man in Mr. Heintzelman’s position would take the risk of perpetrating a sexual assault when his wife was only a few feet away, particularly when the wife was an acquaintance of the victim. The point is not devoid of merit, but I place little weight upon it. Men who conduct sexual assaults of the kind described by the complainants are not rational actors. Their conduct is, by its nature, inexplicable to most people.

It would not be surprising to hear that a sexual assailant of this kind did something extraordinarily imprudent. [ 15 ] Ms. Donnachie, for the Crown, submits that, by reason of the similarity of their accounts, the evidence of each complainant is corroborative of the other. Each counsel provided me with a thorough submission as to the principles governing the admissibility of “similar fact evidence”. For the purposes of this decision, I am prepared to assume, without deciding, that Ms.

Donnachie is correct, and that those principles support the admissibility of each complainant’s evidence as “similar fact evidence” capable of supporting the credibility of the other complainant’s evidence. In addition to the obvious similarities in the circumstances and nature of the assault alleged by each complainant, it should be noted that each complainant is of a similar age, size and body type, which may be significant when sexual assault is alleged. [ 16 ] There are two factors which tend to reduce the corroborative weight to be given to the “similar fact evidence” in this case:

a. I have very little information to assist me in assessing the impact, if any, of T.T’s mental illness or her medication on thereliability of her evidence. b. I am concerned by the notice published by the Victoria Police Department, asking other victims to come forward. It wouldhave been better if the notice had said something like this: The Victoria Police Department has received a complaint from a woman who alleges that she was sexually assaulted by a male massagetherapist during a hot stone massage at his home studio in Victoria.

The police are concerned that there may have been other victims ofthe same individual who have not come forward. If anyone has suffered a similar assault, they are asked to contact Constable Blogginsat 250-111-1111. If the police had published such a notice, and received one or more complaints in response, it would have been possible for them to testthe veracity of those complaints by asking the complainants for the name of the assailant and the address where the assault took place.

Because those details were included in the notice published in this case, it was not possible for the police to test the veracity of T.T. byasking her those questions. The notice in this case offends the principle articulated by Justice Rowles in R. v. Reitsma (BC CA), [1997] BCJ No. 2314 at paragraph 59. The identification of an accused person for the first time "in the dock" is generally regarded as having little weight.

In a dockidentification the witness is obviously not required to pick out the person whom he claims to have seen from among a number of otherpersons of similar age and size and general physical appearance. In a courtroom identification there is also the danger of the witnessanticipating that the offender will be present. That danger is accentuated when an accused is readily identifiable in the courtroom as theperson accused of the crime.

Identification of an accused for the first time in the dock is analogous to a police "show up" in which theonly person shown to the identifying witness is the suspect, and for that reason it is open to the same criticism. Generally, anythingwhich tends to convey to a witness that a person is suspected by the police or is charged with the offence has the effect of reducing ordestroying the value of the identification evidence.

Justice Rowles’ judgment was the minority judgment in the Court of Appeal, but was adopted in its entirety by the Supreme Court ofCanada in allowing the final appeal in that case: (SCC), [1998] 1 SCR 769, and so may be taken as a definitivestatement of the governing principle. [17] The police should also be conscious that the publication of a notice containing the name of the suspect: (

i) may prejudice theright of the accused to a fair trial, particularly where the accused elects trial by jury; and (ii) may unfairly damage the reputation andlivelihood of the suspect if the allegation is unfounded. [18] In R. v. C.W.H. (BC CA), [1991] BCJ No. 2753; 68 CCC (3d) 146, Justice Wood said at paragraph 24 thatjuries in criminal cases should be instructed that “… if, after a careful consideration of all of the evidence, you are unable to decidewhom to believe, you must acquit.” I find myself in that position, and so am obliged to acquit Mr. Heintzelman. December 20, 2018 ______________________ T. Gouge, PCJ