R. v. Heintzelman, 2022 BCPC 167

Citation: R. v. Heintzelman 2022 BCPC 167 Date: 20211210 File No: 171785-4C Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN THOMAS HEINTZELMAN BAN ON PUBLICATION PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE OF CANADA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. McKIMM Counsel for the Crown: P. Donnachie & J. Gillings Counsel for the Defendant: T. Paisana & M. Gismondi Place of Hearing: Victoria , B.C. Dates of Hearing: January 13-15, 18, 2021; February 8-9 and 23-25, 2021; May 19-21, 2021; August 19-20, 2021 ; September 7, 2021; October 14-15, 2021; November 17, 2021 Date of Judgment: December 10, 2021 [ 1 ] The accused is a massage therapist. He is charged with sexually assaulting E.M. in 2017 and sexually assaulting T.T. in 2013.

E.M. and T.T. were both patients of the accused and the complainants allege that the assault occurred during the course of treatment sessions. The accused denies both allegations. The question for the Court to decide is whether the Crown has proven the allegations

beyond a reasonable doubt. [ 2 ] From 2012 to 2017, the accused operated a massage studio out of the basement of his home in Victoria, British Columbia. He offered a number of different types of massage treatments, including a relatively unique treatment called Bowen therapy. He also offered hot stone massage treatments. [ 3 ] In 2017, E.M. purchased a hot stone massage from the accused at a silent auction. E.M. had experienced many massages prior to receiving her massage from the accused, but had never received a hot stone massage.

Prior to attending at the accused’s studio, she did some research on hot stone massage, in order to understand what she might expect. At the time, she suffered from an ailment she described as “frozen shoulder” or “adhesive capsulitis”. The ailment affected her left shoulder. She had never met the accused prior to attending at the studio. She contacted the accused and arranged for a massage appointment on July 2, 2017, to commence at 2:00 p.m.

During the course of arranging the massage, the accused told her that the massage would be lengthy and last until at least 4:00 p.m. [ 4 ] On July 2, 2017, she attended to the studio and entered a large room in the basement of the accused’s home. The studio was divided in half by a paper screen. On one half of the paper screen was the treatment bed and on the other half, a small table and chairs, at which both she and the accused sat during the intake process.

In her evidence, E.M. describes in detail both the exterior of the residence, the exterior access passage to the studio and the layout of the interior of the studio. [ 5 ] E.M. testified that during the intake process, she engaged with the accused about various personal matters, including the banquet she had attended, at which her husband had purchased the hot stone massage. They also discussed her educational pursuits and her children.

She was surprised that the accused seemed to ask her very few questions about her medical conditions or even ask her to fill out an intake form, as she had always experienced in the past. Eventually the accused began to discuss E.M.’s medical health information and she described to him, in particular, the pain and difficulty she was having with her shoulder.

She was struck by the fact that the accused appeared to take no notes or commit anything to writing regarding the information discussed during the intake. [ 6 ] Prior to beginning the hot stone massage, the accused showed E.M. a series of exercises from the Bowen Therapy Program, to assist her with her frozen shoulder. Following this, the accused directed E.M. to go to the treatment portion of the room.

She testified that she recalled distinctly the accused telling her that he did his hot stone massages differently than most practitioners, in that he laid hot stones on the table and asked his patients to lie on top of the stones rather than have them lie on their stomachs and place the stones on their backs. The accused directed her to go behind the screen and remove all of her clothes, lie on the massage table and leave her feet dangling over the edge of the table.

E.M. was surprised that the accused instructed her to take off all of her clothes, as her experience was always that masseuses give patients an option to leave on as many clothes as necessary, to allow them to be comfortable. When she inquired, the accused again stated that she was to remove all of her clothes. [ 7 ] Following his direction, E.M. entered the massage portion of the studio and noted immediately that the table had no sheets on it. She testified that it was bare vinyl with no sheets or coverings anywhere in sight. This struck her as extremely unusual.

She did as directed and removed all of her clothing. She sat on the edge of the massage table. When the accused entered the treatment area, he was dressed in a cotton T-shirt and light cotton pants. He measured her spine, laid out a series of stones on the table, and directed her to lie down. She lay down, but kept her legs tightly closed to conceal her genitalia. She heard a clanking sound and the accused began to rub her feet with the hot stones.

As he did so, he continually pushed her legs apart and continued to push them further apart, until she was finally in a frog like position with her legs splayed wide open. [ 8 ] E.M. described that the massage consisted initially of repeated movements up the inside of her legs to the top of her inner thigh, finally focusing almost exclusively on her inner thigh and the crease of her inner thigh and perineum.

She described that he brushed her labia with his fingertips and, with each new movement in the massage, he moved her legs further and further apart. [ 9 ] Once her legs were in the frog position, the massage focused almost exclusively on her upper inner thigh, the crease where the thigh meets her pubis, her pubic mound and her outer genitalia. This touching was primarily with the rocks though sometimes he would also touch these areas with his fingertips.

She indicated that this massaging of her crotch area lasted about twenty minutes and estimated that he touched her labia on at least twenty occasions, her pubic mound once and spent very little time anywhere else on her legs. As the massage continued, she began to feel more and more uncomfortable, and uttered sounds of discomfort or hurt. [ 10 ] After massaging her inner thighs, the accused moved directly to her breasts and, using the oily stones, stroked from her belly to her breasts and made circular motions around her breast tissue and massaged the areola.

He pressed, tweaked and manipulated her nipples in order to make them erect, and would regularly twist the nipple and rub her areola. There was no massage of any other muscles in her legs, shoulders or chest. She testified that she now felt paralyzed and unaware of how to escape the assault without creating further danger for herself. [ 11 ] After massaging her breasts extensively, E.M. said that the accused began to massage her arm. He began with her right arm turning it over so that her palm was facing upwards.

At this point, he moved closer to the massage table and placed his semi erect penis, covered with his light pants, in the palm of her hand and began to jiggle her arm. She felt that she was giving him some form of erotic stimulation. She testified that she did not move her hand from this position, because she was now even more fearful with respect to what was happening to her. She described the accused as making noises while he manipulated her arm. [ 12 ] Following this, E.M. testified that she was asked to turn over. E.M. told the accused that she no longer wanted him touching her thighs anymore.

She turned over and the massage continued for the next 15 to 20 minutes. During the entirety of that time, the accused limited his massage to her buttocks, down to the crease of her inner thighs by her labia, and became “basically of butt crack, perineum, crease near the labia, and all those areas that are very close and brushing the… Certainly coming against the external genitalia.” (Transcript of Proceedings, January 14, 2021, Page 23, Line 40 to Page 24, Line 5).

At no time did he massage her back, her shoulders, neck, feet or lower legs. [ 13 ] E.M. testified that at no time was she ever advised that she would be touched in this sexualized fashion during the hot stone massage. She told the Court that there was never a conversation with respect to touching her genitalia or breasts and she certainly never consented to any of that touching.

[ 14 ] When the massage was over, E.M. testified that she thought the safest way to extract herself from this uncomfortable situation was with politeness and courtesy. After she dressed, she met the accused in the intake portion of the studio, engaged in pleasant conversation, hugged him and left. Upon arriving home, she immediately advised her husband that she been assaulted, showered and went to bed. She testified that she took several days to process what happened to her before finally deciding to call the police with her complaints.

She provided two separate statements to the police. [ 15 ] E.M. was cross-examined extensively, skilfully, thoroughly and comprehensively. [ 16 ] Following E.M.’s report, the police published a notice to the public asking if any other persons had been assaulted by the accused and, if so, to come forward to the police. In response to that notice, T.T. came forward and reported to the police that the accused sexually assaulted her in 2013 during a treatment. She provided her statement to the police in October 2017, some four years after the assault on her. [ 17 ] T.T. suffers from certain mental health struggles.

She has been diagnosed with schizophrenia, though she questions the accuracy of that diagnosis. She readily concedes that she does, however, suffer from mental health challenges and has been, from time to time, hospitalized and on various forms of medication to assist her. In 2013, she was undertaking a course of counselling, following a referral from the women’s sexual assault centre. During that counselling, she told her counsellor that she suffered from migraines. Coincidentally T.T.’s counsellor also suffered from migraines. The counsellor had received effective treatment for those migraines from the accused.

As a result, T.T.’s counsellor referred her to the accused for treatment. [ 18 ] T.T. testified that she attended at the accused’s studio. She accurately described the residence in which the studio was located, as well as the entranceway to the residence. She described, in detail, the layout of the studio, including the two separate sections divided by a paper screen. Her descriptions are all consistent to the photographs filed as exhibits in these proceedings.

She said that at her first session, the accused met her at the door and sat down with her at a small round consultation table in the intake portion of the studio. There, the accused asked questions with respect to her health, her mental health issues and her migraines. She recalled clearly that the accused took notes on some sort of form that appeared to her to be an intake form.

She recalled discussions about payment for treatments and testified that the accused suggested that they could exchange treatments; T.T. would provide Reiki treatments to the accused in exchange for his treatments on her. [ 19 ] She testified that the accused told her he would be using a Bowen form of treatment on her. She had never heard of this form of treatment and the accused described it for her with the assistance of an anatomy book. She recalls it being described as a system of plucking nerves to ease her migraine difficulties.

She described in some detail a number of sessions with the accused, prior to attending for the hot stone massage. [ 20 ] T.T.’s evidence was that after a number of brief Bowen treatments, the accused recommended she take a hot stone massage timed around one of her menstrual cycles. She recalls arriving for the hot stone massage in the dark. When the accused answered the door, he was wearing jogging shorts and a T-shirt, a very different outfit from the dress shirt and jeans that he had worn for previous treatments. She described that the accused instructed her to remove all of her clothes and to lay on the table.

She recalls a crockpot filled with stones and the scent of incense in the air. [ 21 ] After removing her clothes, T.T. laid on the table face up. She recalls the table being covered with a sheet but no covering being offered to her. She sat up, five or six rocks were placed on the table, and she was instructed to lay down on top of them. The accused did not offer her anything to cover herself at any point during the massage. She testified that she felt uncomfortable about her nudity, but had no reason to question the accused and assumed that the nudity had something to do with the Bowen therapy.

For this reason, she did not say anything to the accused. She recalled that at some point, the accused removed his jogging shorts and was down to red boxer shorts, made of a thin cotton fabric. [ 22 ] The massage began with the accused taking the rocks and rubbing them up and down her body. He then went around the mound of her breasts and around her nipples. She recalls the accused pinching her nipples hard. She testified that he rubbed the rocks up and down her body, but in particular, rubbed the rocks in and around her genitalia, in particular on her labia and her outer genitalia.

Toward the end of the massage, he began to work on her arm. He rotated her arm so that it was over the edge of the table with the palm facing up. Once in that position, he placed his penis through his shorts in her palm. She described specifically that the accused took her hand, rotated it and placed his penis in the palm of her hand. She could feel that he was erect and that there was a wet spot on his shorts.

She described to the Court that at one point, while his penis was in her hand, he put his arm across the table and appeared to be about to mount up on the table. [ 23 ] T.T. describe in her evidence feeling frightened and paralyzed, confused and very frozen. She describes feeling a “fight, flight or freeze” reaction and freezing up. [ 24 ] Both E.M. and T.T. testified that they had never met the other, did not know the other and never discussed their evidence between themselves.

E.M. did testify that she believed she heard some of T.T.’s evidence when T.T. testified at an earlier trial. [ 25 ] The accused cross-examined T.T. extensively, rigorously and thoroughly. [ 26 ] The accused testified. He denied sexually assaulting either complainant. He denied giving T.T. a hot stone massage and had a very different version of the relationship between them. He did agree that he gave E.M. a hot stone massage, but denied that at any time during that massage did he touch her sexually. [ 27 ] The accused testified that he was 65 years of age and originally from the state of Florida.

He spent some time in the military and then 20 years working as a professional landscaper in Florida. Unfortunately, he lost his business during the great recession of 2008 and was forced to sell off his equipment and vehicles to make ends meet. At that time, he decided to use the capital to retrain as a massage therapist. He studied massage therapy in Florida for just under a year and successfully obtained his certificate as a professional masseuse.

[28] He met his now wife in 2011 and together they moved from Florida to Victoria, where they acquired the residence in which theycurrently reside. He testified that in 2013, he developed the studio in the basement of their new home in James Bay, and began initiallysimply to provide services to friends on a “without charge” basis. He is not a registered massage therapist but simply practices under theauspices of a business license as a masseuse.

His description of his massage studio is similar to those of the two complainants and isaccurately captured in the photographs filed in these proceedings. [29] He testified that he remembered seeing E.M. at the silent auction, in which she and her husband acquired his services. Hedescribed her as being relatively intoxicated and confirmed that he did not speak to her directly at that event. He confirmed that theyconnected by email after the silent auction and arranged for the massage on July 2, 2017. E.M. arrived at the appointed hour and heconducted his usual intake interview and exchanged pleasantries.

He testified that he discussed in detail E.M.’s physical conditions anddescribed to her in detail a hot stone massage. He testified that he made detailed notes of their intake interview on his tablet. He recallsdiscussing E.M.’s frozen shoulder and showing her a Bowen treatment to alleviate some of the discomfort caused by her frozen shoulder. [30] He directed her to attend to the treatment side of the studio and remove all of her clothes.

He testified that he required her toremove all of her clothes, including her underwear, because of the risk that if a hot stone was caught in her underwear during thetreatment she could be burned. Moreover, if she wished him to work on her glutes, she would need to remove her underwear. Heconfirmed that he changed from his collared shirt and jeans into more comfortable cotton pants and a T-shirt.

He testified that this verylight casual wear was important to allow him to assume the warrior pose he adopted while providing treatment. [31] He testified that there were an abundance of sheets and towels available to E.M. and that he was surprised when he entered themassage area to discover that she was sitting naked on his table completely un-draped. He insisted that there were both sheets and towelsavailable throughout the studio with which his clients could cover themselves.

Curiously, he testified that while he had no objection toindividuals who wished to be nude during the course of a massage, that he characterized E.M. as a “self professed strong, brazenwoman. She’s immodest.” (Transcript, February 25, Page 36, Line 46 to Page 37, Line 1). He testified that he had to cover her up witha towel to continue the massage after she had rolled on to her stomach. [32] He provided a detailed description of the process of E.M.’s hot stone massage and insisted that at no time, did he touch any partof her genitalia or her breasts.

He denied that he ever placed his penis in the palm of her hand. He also testified that at the end of themassage, he left the treatment area and waited for E.M. to emerge. When she did so, there were pleasantries exchanged, they hugged andshe left. On his evidence, absolutely nothing of a sexual nature occurred. [33] With respect to T.T., the accused testified that he did perform a number of treatments on her to help her with the migraines fromwhich she suffered.

He produced a spreadsheet prepared by his wife showing her receiving treatments on five separate occasions, noneof which are noted to be a hot stone massage. He confirmed that he performed Bowen therapy, but insisted that on each of hertreatments, she remained fully clothed. His evidence is that the only time he touched any part of her leg was on one occasion, when heperformed a Bowen therapy on the inside of her thigh, over top of her clothes. [34] He testified that he became frustrated with T.T.’s lack of follow-through on his extensive treatment regime and her failure toattend at appointments.

Their relationship finally came to an end when she attended at his studio, accused him of causing a lump in herneck and threatened to sue him. He directed her to leave and that was the last he saw of her. He denied ever sexually assaulting her ortouching her in any sexual way. [35] The issue for the Court is whether or not the Crown has proven the case beyond a reasonable doubt. Here, the accused testifiedand denied the allegations categorically. There is no suggestion of a misinterpretation or a misunderstanding. According to the accused,the assaults simply did not happen.

There is no question that the conduct described by the two complainants are clearly physical contactthat violates their sexual integrity and, as such, are sexual.

The central question is whether or not the Crown has proven beyond areasonable doubt that the physical contact is without consent and therefore that the accused committed sexual assaults. [36] When the Court is confronted with two opposing versions of the facts, one from an accused and the other from a complainant, itis important to remember that the question is not whose evidence is preferred, the question is always whether or not the Crown hasproven the case beyond a reasonable doubt. The Supreme Court of Canada, in R. v.

W.(D.), (SCC), [1991] 1 SCR 742,articulated the test to be applied as follows: First, if you believe the evidence of the accused, you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [37] Our Court of Appeal, in the decision of R. v.

C.W.H., (B.C.C.A.), added an important fourth element to thattest; if after careful consideration of all of the evidence, you are unable to decide whom to believe, you must quit. [38] I begin the analysis with a consideration of the accused evidence. I do not believe the accused. Nor does the accused’s evidenceleave me with a reasonable doubt. The accused testified and was cross examined extensively over the course of several separate days oftrial. He was vague and argumentative throughout his evidence. I found his evidence regularly inconsistent and incapable of belief.

Counsel for the accused complained that the cross examination was overly lengthy. While I agree that the cross examination was indeedlengthy, spanning four separate days of trial, separated over three months, it was so primarily as a result of the accused’s either refusal orinability to answer simple direct questions with simple direct answers. [39] He testified that recipients of hot stone massages are required to be naked for risk that the stones might get caught in theirunderwear and burn their flesh.

He further testified that it was impossible that the hot stones could be placed directly on the vinyl tableor that E.M. was directed to lie directly on top of the hot stones, because they would surely have damage the table and burned her back. It defies logic and common sense to suggest that the stones used in a hot stone massage are so hot, that they will damage the vinyl

covering of the table. It is equally unimaginable that the stones are so hot that although he holds them directly in his hands for the duration of the massage, even a momentary entangling in a patient’s undergarments would cause the patient to be burned. [ 40 ] He denied that he ever expressly sought the consent of patients to be touched. In his view, the very fact of their attendance for massage constituted a consent to any touching that might occur. He agreed in cross examination that he never described to E.M. what to expect in the hot stone massage.

He dismissed the suggestion that he needed to obtain E.M.’s consent because she paid for a hot stone massage and that fact alone constituted, in his mind, consent to whatever contact was involved in his massage. At one point in his evidence, he suggested that if it was the first time someone received a Swedish or hot stone massage, he would describe it to them, but in the case of E.M., he did not because she indicated to him that she had enjoyed hundreds of massages.

It makes no sense that he would describe to all newcomers to hot stone massage the process of the massage, and never inquire of an experienced massage recipient whether they had actually received a hot stone massage and therefore, require an explanation as to what to expect. Moments later in his evidence, he agreed with the proposition put to him by counsel for the Crown that there was indeed a positive obligation to provide a patient a clear description of what to expect, so that there might be no surprises.

It was a matter of standard practice. (Transcript, February 25, 2021, Page 14, Line 8 to Page 15, Line 15). [ 41 ] I found the evidence of the accused argumentative and needlessly so. As an example, although T.T. drew a remarkably accurate diagram of the studio, though obviously not to scale, the accused insisted in his evidence that it was nothing like his studio and that it was something “a child might draw”.

In the entire exchange, he continually tried to pick meaningless holes and distinctions in the diagram crafted by the witnesses, and showed a significant animosity toward them and a complete lack of objectivity. [ 42 ] The accused testified in exquisite detail exactly how he conducted the hot stone massage on E.M. He was quite clear that it is not simply a recollection based on his standard practice, but rather a separate independent recollection. This lacks credibility.

He provided far more detail in his evidence at the trial four years after the fact, than he provided to the police in his statement a matter of days after the massage. Similarly, he recalled, with precision, exactly the procedure he performed on T.T. at his appointment on August 15, 2013, when he allegedly manipulated a nerve in her groin area.

If in fact that was all he had done and that was a standard part of his practice, it defies logic and common sense to suggest that he would have a specific recollection of either of those events four or eight years after they occurred. [ 43 ] By way of another example, the accused was specifically asked whether or not he disclosed the sexual assault allegations in his application for citizenship, made after the charges were filed but prior to trial.

His initial position was that he was unaware of what information was contained within the citizenship application, because his wife filled out that application online and he had very little input into the application. He said in his evidence, quite specifically, that he was unaware of what was contained within that application because, “I never actually read the application.” Moments later, when pressed by the Crown about his remarkable failure to read an application as important as a citizenship application, he testified “I think I read it to confirm the information on it was correct.

That’s what I did do.” As Crown counsel pointed out at the time, this was a dramatic and complete reversal of his evidence given just moments prior. [ 44 ] The accused testified that he had a specific regimen of treatment for individuals who attended to his studio for migraines. They are required to commit to treatment once a month, for a year. He testified that, as an example, the counsellor who referred T.T. to him for migraine treatment attended at his clinic once a week, from July through November 2017.

In cross examination, he was challenged on that assertion and it was pointed out to him that his own records, on which he purported to rely, did not show the counsellor attending once a week for that five-month period. The accused then testified that he did not keep a record of her appointments because he did not charge her for them, but had a specific recollection because she had a standing appointment every Wednesday.

It was then pointed out to him that on at least one of the dates that he had noted the counsellor attending was not a Wednesday and therefore, inconsistent with his evidence that she had a standing appointment on Wednesdays. [ 45 ] The following day, this line of inquiry was pursued again and on this occasion, the accused made up an entirely different story. The following day, he testified that he started practising massage therapy illegally the previous year. He said it was the previous year the counsellor was attending weekly for migraine therapy.

He now no longer agreed that the reason the counsellor was not properly recorded in his records was because she had a standing appointment the previous year and by 2013, when his records were being kept, she was cured. When confronted with this rather alarming change in his evidence he testified, “I did not lie to the court.

I did omit information because, quite frankly, you’ve drag(ged) this out so long, I thought it would be fun to watch you go back and look for dates and come back and say that they were inaccurate, and they’re actually… The actual records of (the counsellor) for her migraines are in 2012”. [ 46 ] It is patently apparent that the accused did not take his obligations to be honest, forthright and complete in his evidence seriously. [ 47 ] The accused asserted that his version of events is supported by the slim records that he kept and produced for the Court.

He says, for example, that the spreadsheet of appointments and billings prepared by his wife confirm that T.T. never received a Hot Stone Massage. The accused also testified that at the instruction of his first lawyer, not counsel at trial, he burned all of his clinical records in the back yard shortly after his arrest. I am not prepared to consider the partial records of the accused as supportive of his evidence in circumstances where by his own action he has deliberately destroyed essential supportive business records.

I make no other inference regarding this behaviour in destroying potential evidence following his arrest, but am not prepared to infer that the partial records not destroyed by him ought to be considered as reliable evidence to support his version of events.

In deliberately destroying the vast majority of his records he has created a false impression of the reliability of the remaining records as such they are not sufficiently reliable to support a suggestion that they bolster his credibility. [ 48 ] Considering the first step in the W.(D.) analysis, I say, without hesitation, that I do not believe the accused and, therefore, that his evidence does not raise a reasonable doubt. Equally, the evidence of the accused considered with the evidence I do accept does not raise a reasonable doubt. That of course does not end the inquiry.

I must now go on to assess whether, on the evidence, I do accept, the Crown has proven the case beyond a reasonable doubt.

[49] When assessing the complainants, it is critical the Court assesses both their credibility and their reliability. Credibility, in thissense, means their truthfulness. Reliability, on the other hand, refers to their ability and capacity to accurately recollect the events theydescribe. The Ontario Court of Appeal puts it this way; …credibility and reliability are different. Credibility has to do with the witnesses veracity, reliability with the accuracy of the witnessestestimony. Accuracy engages consideration of the witnesses ability to accurately one observe; two recall; and three recount events inissue.

Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the otherhand, is not a proxy for reliability: a credible witness may give unreliable evidence. R. v. Morrissey (1995), (ON CA), 22 OR (3rd) 514 @ 526 (ON CA) [50] The testimony of both complainants is detailed, powerful and compelling. Each complainant described, in detail, the assaultsalleged in the information. Though each complainant was skilfully and exhaustively cross examined, at no point did they waver from thecore allegations in their complaints.

I agree with counsel for the accused that there were many small inconsistencies in the evidence ofeach of the individual witnesses. Great pains were taken to articulate each of the small inconsistencies. In my view, none of thoseinconsistencies go to the core of the allegations. It is not surprising, years after an event as traumatic as these would certainly have beento the complainants, that the details surrounding the event may be lost or vague. [51] There is nothing in the evidence of either complainant to suggest they were fabricating their evidence.

They did not embellishtheir accusations nor display any animus towards the accused, in spite of what he had done to them. They both conceded, from time totime, when they had made errors in their evidence or made inconsistent statements. Their evidence considered in its entirety displayedall the hallmarks of veracity. [52] Considering the evidence of E.M., I find nothing in her evidence that suggests in any way that it is unreliable. There was nothingin the recounting of the events in question that even hinted at the inability to recall accurately the events that occurred.

The accusedsuggests that the delay in reporting the assault to the police suggests some ambiguity or potential for misunderstanding of the evidence. I disagree. There is nothing untoward or uncommon about any element of the manner with which E.M. reported this incident to thepolice. [53] I accept that T.T. testified that she had mental health struggles and had difficulty remembering certain details. She describedthose difficulties in a unique and very visual way.

T.T. accepted that there were many of the extraneous details around her treatments bythe accused and her attendance at the appointment in which the sexual assault occurred that are lost to her. In my view, her admission offrailties in her memory enhance her veracity and I do not believe they impugn her reliability. I also find that T.T.’s evidence was given ina balanced and forthright way. At no time, did she exaggerate or fabricate her evidence and there is nothing in her evidence suggestingan inability to accurately observe and experience the behaviour of which she complains.

I find that the evidence the complainant T.T. isentirely credible and reliable. [54] I have considered carefully the concern raised by the accused with respect to the admitted mental health struggles of T.T. TheOntario Court of Appeal dealt with this concern in R. v. Nicholson, (ON CA), [1995] OJ No. 3152. In that case, themain complainant suffered from multiple personality disorder. [1] At the time of the events in question, the complainant suffered from a mental state in which she had several differentpersonalities into which she might move.

She testified under cross-examination that during the time frame in issue she had five or sixpersonalities. In our opinion, the trial judge overlooked the fundamental problem of the case: because of her diagnosed multiplepersonality disorder, the complainant may have been speaking the truth as she believed it to be but, nonetheless, her testimony may nothave been sufficiently reliable to support a conviction.

Nicholson, supra, at Para. 1 [55] The conviction based on her evidence therefore raised the important concern as to whether her mental health struggles adverselyaffected the reliability of her evidence, regardless of whether the complainant honestly believed the recollections to be true. In dealingwith this important issue they wrote; [3] …The extensive reasons for judgment in this case focus on the issue of credibility rather than reliability.

Instead of finding that thecomplainant's mental disorder required a closer scrutiny of her testimony, the trial judge appeared to use the disorder as an explanation orexcuse for her fragmented recollection of the events. [4] The trial judge did not consider whether the complainant's multiple personality disorder made suspect the reliability of her testimonythat she did not consent to the alleged incidents of intercourse with the appellant.

Nor did he identify sufficient grounds as would supporta conclusion that the complainant's ability to assess and recall the events in issue was not affected by her multiple personality disorder. The fact that the defence witnesses did not notice that the complainant suffered from multiple personalities is not an adequate basis forconcluding that her mental state did not affect her ability to accurately perceive the events in question or to accurately recall the eventscomplained of.

The complainant's assertion that she no longer experiences multiple personalities is not a sufficient assurance of thereliability of her perception or recall of the events in question. R. v. Nicholson, (ON CA), [1995] OJ No 3152, 86 OAC 68, 45 CR (4th) 130, 28 WCB (2d) 490 [56] In this case, I do not consider the simple fact that T.T may have a bipolar disorder detracts from her credibility or reliability. Iaccept the analysis of the Manitoba Court of Appeal in R. v.

Perrone, 2014 MBCA 74 , [2014] MJ No. 217, affirm’d 2015 SCC8 , [2015] 1 SCR 473, where they write: A mental illness does not necessarily imply an issue with reliability. In R. v. M.H., 2003 BCCA 607, Levine J.A. commented that thefact that the trial judge was not aware of the witness’s bi-polar disorder was irrelevant in the absence of any evidence of “someconnection between that disorder and the reliability of their evidence”

Perrone, supra, at Para. 30 [57] None of the consequences of the mental health struggles articulated by T.T. display any connection between whatever mentalhealth struggles she might endure and her ability to accurately and reliably recall that which occurred. I find her evidence entirelyreliable. She admitted that she had difficulty bringing to mind details around the event, as indicated earlier, none of those details relatedto the core allegations of assault levelled by her against the accused.

Those core details were never shaken. [58] I accept the evidence of both of these complainants and find that evidence satisfies me beyond a reasonable doubt of the guilt ofthe accused on both counts in the information. [59] I am supported in this conclusion by a careful analysis of the similarity of the complaints of both of these complainants. [60] It is well-known that evidence of other bad acts committed by an accused can never be used to support an inference that simplybecause they committed those other bad acts, they are more likely to have committed the offence in question.

This is generallyunderstood to be inadmissible propensity evidence. Generally speaking, the complaints alleged by E.M. should not be used to suggest,for example, that the accused is more likely to have committed the acts complained of by T.T. As a result, I must consider this evidencewith great caution. 31 The respondent is clearly correct in saying that evidence of misconduct beyond what is alleged in the indictment which does no morethan blacken his character is inadmissible. Nobody is charged with having a "general" disposition or propensity for theft or violence orwhatever.

The exclusion thus generally prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow aninference from the "similar facts" that the accused has the propensity or disposition to do the type of acts charged and is therefore guiltyof the offence.

The danger is that the jury might be confused by the multiplicity of incidents and put more weight than is logicallyjustified on the ex-wife's testimony ("reasoning prejudice") or by convicting based on bad personhood ("moral prejudice"): Great BritainLaw Commission, Consultation Paper No. 141, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996), at s.7.2. R. v.

Handy, 2002 SCC 56 , [2002] 2 SCR 908, at Para. 31 [61] This analysis is true regardless of whether the bad acts complained of are not charged in the indictment or the inference is beingsought by comparison to the allegations in two separate counts. The authorities are clear that in a trial on a multi-count indictment, where no similar fact ruling has been sought or made, the trial judgemust give a careful instruction to warn the jury against the misuse of evidence from one count in relation to any other count. R. v. Nduwayo, 2008 BCCA 255 , [2008] B.C.J.

No. 1132, at Para. 17 [62] The only difference being that in the instance of the inference of similarity between counts, there is no preliminary gatekeeperfunction as to the admissibility of the evidence in the trial, since the evidence is clearly relevant to each of the separate counts. [63] Though presumptively inadmissible, similar fact evidence will be exceptionally admitted where its probative value is highenough to outweigh the prejudicial effects of this type of evidence.

In Handy, at paragraph 48, the Court noted that “…as the ‘similarfacts’ become more focussed and specific to circumstances similar to the charge (i.e., more situation specific), the probative value ofpropensity, thus circumscribed, becomes more cogent.” Thus, the probative value of similar fact evidence is directly tied to the nexus ordegree of similarity between the similar instances.

The strength of the nexus required to bring the probative value of similar factevidence high enough to outweigh its prejudicial effect will “depend upon the issues in the particular case, the purpose for which theevidence is sought to be introduced in the other evidence”. R. v. Morin, (SCC), [1988] 2 SCR 345, at Para. 54; R. v. D.(L.E.) at 120; R. v. B. (C.R.), (SCC), [1990] 1 SCR 717 at 729; R. v. Arp, (SCC), [1998] 3 SCR 339,at Paras. 38, 45-47; R. v. Handy, 2002 SCC 56 , [2002] 2 SCR 908, at Paras. 54, 76-81, 87. [64] The Supreme Court of Canada in R. v.

Handy put it this way; The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capturethe attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great andthese disadvantages will almost always outweigh its probative value. It ought, in general, to form no part of the case which the accusedis called on to answer. It is excluded notwithstanding the general rule that all relevant evidence is admissible. R. v.

Handy, 2002 SCC 56 , [2002] 2 SCR 908, at Para. 37 [65] There is a narrow exception to this rule when the two acts complained of, which the trier of fact is asked to consider together, areso strikingly similar that their truth is the only reasonable inference.

While emphasizing the general rule of exclusion, courts have recognized that an issue may arise in the trial of the offence charged towhich evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighsany potential for misuse, per Sopinka J., dissenting in B .(C.R.), supra, at p. 751: The fact that the alleged similar facts had common characteristics with the acts charged, could render them admissible, and, therefore,supportive of the evidence of the complainant.

In order to be admissible, however, it would be necessary to conclude that the similaritieswere such that absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence…[Emphasis added.] Handy, at Para. 41 [66] Of course, whether or not one act complained of would represent admissible evidence to support the inference relative to the

commission of the second act complained of requires careful analysis of those two separate acts.

When considering the distinctivenessor uniqueness of each act when compared with the other, I must be satisfied that those distinctive characteristics are such that theprobative value of the inference that the individual who committed one act is more likely to, therefore, have committed the otheroutweighs the prejudicial effect of admitting that evidence. …In a case such as the present, with a similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant actcommitted by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit itsreception.

The judge must consider such factors as the degree of distinctiveness or uniqueness between the similar fact evidence in theoffences alleged against the accused, as well as the connection, if any, of the evidence to issues other than propensity, to the end ofdetermining whether, in the context of the case before him, the probative value of the evidence outweighs its prejudicial effect andjustifies its reception R. v. B. (C.R.), [1990] 1 SCR 949, at Para. 31 [67] Mr. Heintzelman points out, quite correctly, that I must also consider differences between the two different morally repugnantacts.

He points to the language of the Supreme Court of Canada when they write: The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to bedrawn, as well as the strength of the proof of the similar facts themselves. Factors connecting the similar facts to the circumstances setout in the charge include:

(1) Proximity in time of the similar acts; (2) extent to which the other acts are similar in detail to the charged conduct; (3) number of occurrences of the similar acts; (4) circumstances surrounding or relating to the similar acts; (5) any distinctive feature(

s) unifying the incidents; (6) intervening events; (7) any other factors which would tend to support or rebut the underlying unity of the similar acts. R. v. Handy, 2002 SCC 56 , [2002] 2 SCR 908, at Para. 82 [68] Furthermore, I must consider if there is any reasonable possibility of collusion between the witnesses to the separate bad acts. The potential for collusion between multiple complainants is an important consideration in determining the admissibility of similar factevidence, since it serves to rebut the premise upon which the probative value of this kind of propensity evidence depends.

Where there isno more than a mere opportunity for collusion, this factor alone should not prevent a trier of fact from hearing otherwise admissiblesimilar fact evidence. Where, however, there is an “air of reality” to allegations of collusion, such as a motive to concoct or collaborate inaddition to the opportunity to do so, the Crown must satisfy the trial judge on a balance of probabilities that the similar fact evidence itseeks to admit is not the product of collusion. R. v. Greenhaulgh, [2012] B.C.J.

No. 1046 [69] In this case, both complainants allege that their sexual integrity was infringed by the manner in which the accused conducted ahot stone massage. The accused’s position is that in one instance, he never performed a hot stone massage and in the other instance, headmits that he performed a hot stone massage but did not do so in a manner that was outside the scope of implied consent and certainlydid not offend the sexual integrity of the complainant.

In my view, the similarities between the allegations of both complainants T.T. andE.M. is so striking that it is beyond the realm of the imagination that both complainants could have concocted such similar stories. In myview, the similarity between the two complaints is such that, “…the possibility of mere coincidence, or mistaken identity or a mistake inthe character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact.” R. v. Handy, 2002 SCC 56, [2002] 2 SCR 908 @ para 91.

Moreover, the circumstances of the similar fact evidence, that is that they occurred during thecourse of a hot stone massage, is the sort of tightly circumscribed pattern of behaviour as to be consistent with the principles outlined inHandy. [70] In particular, I consider the following elements which I accept from the complainants’ evidence: 1. These assaults took place during the course of a particular type of massage, being a hot stone massage. For example, they did nottake place during different types of massages, such as a hot stone massage versus a traditional massage or even a Bowen treatment. 2.

Both complainants were directed to remove all of their clothes. I do not accept that it is essential for the purposes of conducting a hotstone massage that the subject of the massage must remove all of their garments. Obviously, anyone who is manually manipulatingstones over the body of a patient would easily be able to avoid an area covered by an undergarment if necessary or that is the desire ofthe patient. I do not accept that all patients for hot stone massage must remove all of their clothes for fear of the stones burning thepatient. 3.

The accused conducted the massage on both complainants and did not provide a top sheet in order to allow them to cover themselvesdespite their nudity. 4. Both complainants testified that the focus of the massage was on their erogenous zones with a particular emphasis on massaging theirgenital areas around the labia, breasts and nipples. Neither complainant testified that that there was any attempt to penetrate an orifice of

the complainants. 5. Both complainants testified to extensive manipulation of their breasts and breast tissue with the hot stones and concluded with a painful pinching or tweaking of their nipples. 6. Certainly most striking of all is the almost identical description of the accused manipulation of both complainants’ hands, such that their hands were off the side of the massage table with their palms facing upwards. Once the accused placed their hands in this position, he then placed his semi erect penis in their hands.

He then manipulated their arms in such a way as to cause their hands to jiggle. [ 71 ] It is these six factors which I find to be carefully circumscribed allegations that represent an appropriate application of the doctrine of similar fact evidence and serve to corroborate and strengthen each complainant and the version of events they describe. Counsel for the Crown points out other similarities between the two allegations, such as the age of each complainant or the fact that they were both alone with the accused or that they were both at the studio for a hot stone massage.

In my view, these similarities are generic similarities which might be applied to any woman who receives a hot stone massage. I do not consider those as supportive of the inference that the hot stone massage itself was a unique or signature assault or a modus operandi . These elements of both complainants’ narratives can best be described as peripheral or generic similarities, not similarities that point to a modus operandi . [ 72 ] For his part, the accused points to a number of differences between the two acts described by the two complainants.

None of those differences go to the very core of those acts described, which are so unique that it is impossible to imagine coincidence. The differences rather simply go to the circumstances by which the women found themselves in a position to be violated by the accused. As an example, counsel indicates that the two complainants looked very different and were not close in age and indeed from very different backgrounds. Similarly, he indicates that they had different relationships with Mr. Heintzelman; one was a first time patient and one was a patient with a long standing relationship.

They suggest a significant difference is that one assault took place during the day; the other was in response to an invitation to attend in the evening. They point to differences between the experiences each woman had with the accused prior to commencement of the massage. One being brief, the other being a lengthier period. [ 73 ] Clearly, none of those differences impugn in any way the striking similarity of the core of the allegations against the accused.

Perhaps the closest that might be said with respect to the various inconsistencies alleged by the accused is that the nature and the precise manner in which he violated each of the complainants was slightly different. For example, that he touched each woman’s breasts in a slightly different way or that he touched one woman’s anal area extensively, whereas the other complainant made no mention of her anal area being touched.

While I have considered these latter instances very carefully, I do not find that they detract from the powerful similarities between the two complainants. [ 74 ] Finally, there is no air of reality to the suggestion that there is a risk of collusion as between T.T. and E.M. The evidence is abundantly clear that prior to the assault on E.M., the women had never met and had never even heard of each other.

The simple fact that T.T. complained to the police as a result of a notice published by the Victoria Police Department does not in any way suggest that there was ever an opportunity for the two complainants to collude.

Furthermore, I accept their evidence that other than a brief period of time in which one of the complainants observe the testimony of the second, that there was no opportunity for them to exchange information and thereby concoct, either consciously or unconsciously, the evidence they provided to the Court. [ 75 ] As indicated above, I find that the evidence of each of the complainants supports an inference that the accused committed both of these offences and corroborates and makes more reliable the evidence of each complainant.

As a result, I also considered this as a factor in my analysis of whether the Crown has proven the case against this accused beyond a reasonable doubt. If I am wrong in considering the evidence of both complainants as similar fact evidence I am, none the less, satisfied beyond a reasonable doubt of the guilt of the accused based solely on the evidence of each of the complainants standing alone. [ 76 ] For these reasons I find the accused guilty as charged on both counts of information 171785-C4. ______________________________ The Honourable Judge D. M. McKimm Provincial Court of British Columbia