R. v. Sun Date:, 2013 BCPC 334

Citation: R. v. Sun Date: 20131217 2013 BCPC 0334 File No: 12074-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JUN SUN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT BAN ON PUBLICATION 486.4(2) CCC Counsel for the Crown: A. Ghatak Counsel for the Defendant: D, Karp Place of Hearing: Vancouver , B.C.

Dates of Hearing: May 23, 24; Sept. 3, 4, 11; Oct. 16; Nov. 18, 2013 Date of Judgment: December 17, 2013 A corrigendum was released by the Court on December 31, 2013. An additional corrigendum was released by the Court on March 23, 2015. The corrections have been made to the text and the Corrigenda are appended to this document. INTRODUCTION [ 1 ] Jun Sun (the accused) is a licensed acupuncturist. The accused has practiced acupuncture for 12 years. He also has some massage therapy experience which he has learned over the years from coworkers.

In 2012 the accused was one of the owners of the H.W.C. (the clinic) in downtown Vancouver. In July of 2012, the complainant, A.D., was employed by the accused on a part-time basis as a massage therapist. It is alleged that on September 16, 2012 the accused sexually assaulted the complainant at the clinic when he was giving the complainant a consensual massage.

The complainant testified that during the course of the massage the accused massaged her breasts, kissed her nipples and bit one of her breasts for a sexual purpose without her consent. [ 2 ] The accused testified that indeed he did massage the breasts of the complainant and that he also kissed her nipples. He denies that he bit one of her breasts. The accused asserts that he had an honest but mistaken belief that the complainant was fully consenting to the sexual contact. ISSUES [ 3 ] The accused has asserted an honest belief in the consent of the complainant to sexual contact.

As such, the Court must first determine whether there is any evidence to lend an air of reality to this defence. If the answer is “yes” then the Court must then determine, in the context of all of the evidence, whether the accused honestly believed that the complainant had communicated her consent. [ 4 ] In addition, to be honest, the accused’s belief cannot be reckless or willfully blind and he must also have taken reasonable steps, in the circumstances known to him, to ascertain that the complainant was consenting.

BACKGROUND [ 5 ] Crown Counsel called two witnesses in support of the Crown theory that the accused assaulted the complainant. The two witnesses were the complainant herself and also M.M. (the receptionist). The complainant delivered her evidence through the assistance of a Japanese interpreter.

Photographs were also filed in which a bite mark appears to be depicted on one of the breasts of the complainant. [ 6 ] Defence Counsel called one witness being the accused. [ 7 ] The complainant testified in direct examination that she was hired by the accused on a part-time basis to provide massage therapy to clients at the clinic. She viewed the relationship as professional as the accused was her “boss”.

She testified that on one occasion in July and on another occasion in August she was invited by the accused to go out for dinner. [ 8 ] The complainant testified she did not have any romantic or sexual interest in the accused as she had a boyfriend in Australia. She testified in direct examination that she told the accused of this circumstance. [ 9 ] In relation to events on September 16, 2012, the complainant testified in direct examination that she arrived at the clinic at approximately 11 AM.

She did not have any clients for the morning so was surfing the Internet when the accused asked if she wanted to have a massage. She agreed. The complainant then went into one of the treatment rooms, disrobed except for panties, and then lay down on her stomach on a treatment table and covered herself with a sheet and a towel. [ 10 ] The accused entered the room and commenced to perform a leg and back massage using oil as a lubricant. This portion of the massage took roughly 30 minutes and was described as uneventful by both the complainant and the accused.

It would appear that the conduct of the accused was appropriate and would be in line with massage protocols known to him at the time. [ 11 ] The complainant testified that after the leg and back massage she turned over onto her back and was asked by the accused if she wanted a chest massage. She said “yes”. She also described her state of mind as being half asleep when the accused commenced massaging her stomach. Her eyes were closed.

Within one to two minutes of this stomach massage her covers were “suddenly” pulled down from her breasts and she felt the accused’s hands on her breasts and nipples and then felt bit her right nipple being bitten. [ 12 ] The complainant testified that she was very “embarrassed” to tell the Court what happened and that she would prefer to forget about what happened:

THE COURT: Long time, yeah. A So I wanted to try forget, because I don't want to think about anything so I want to forget, so I cannot remember. (Transcript, May 23, 2013, Page 23, Lines 42-45) [ 13 ] At this juncture of the trial a break was appropriate as the complainant was clearly distressed. [ 14 ] In further direct examination, the complainant testified that she did not see the accused bite her breast but as a result of the pain she assumed it was a bite.

The complainant later took a photograph of her right breast which shows a rather blurry contusion. [ 15 ] The massage in the treatment room came to an end when the complainant heard the receptionist tell them that a client had arrived. The complainant then got dressed and left the treatment room. She testified that she was unhappy about what happened and decided that she could no longer work at the clinic. [ 16 ] During the balance of the day on September 16, 2012, there were several confrontations at the clinic involving the complainant and the accused.

The receptionist was present during several of these confrontations. Money became an object of concern between the complainant and the accused. The complainant testified that at around 5 pm the accused gave her $100 in cash telling her: “Don’t say anyone.” He also gave her a cheque for her salary in the amount of $300 in response to which she testified that she told the accused that this was not enough money and that she wanted “one more zero.” [ 17 ] The complainant testified that she did have a series of text message communications with the receptionist.

Those text messages include nine communications in which the complainant is clearly interested in there being some consequences for the accused. [ 18 ] In cross-examination, the complainant confirmed that after the second dinner she gave a pen to the accused explaining that she did so as a token of appreciation and not part of a romantic intention on her part. The complainant also denied in cross-examination that she suggested that they go to the PNE together, play tennis together or go to Whistler together.

She did agree that at the second dinner she had a photo taken of the two of them with her camera. [ 19 ] In further cross-examination, the complainant could not recall if there was any discussion about a mutual massage on September 15, 2012. She did agree that when she entered the treatment room on September 16, 2012, she clearly understood that this would be a consensual joint massage. [ 20 ] While there was some uncertainty as to the details of the first part of the massage, the complainant was nonetheless quite certain that the first 30 minutes were essentially uneventful with her lying on her stomach.

While she did testify in cross-examination that she was not particularly pleased with the massage, that would be at odds with her statement to the police that the “massage on my back felt good and I was falling halfway asleep.” (Transcript, May 24, 2013, p. 41, l. 9-20) [ 21 ] In further cross-examination, the complainant could not recall whether she was making what was described as “cooing noises” during the course of the massage.

The complainant agreed that at no time did she tell the accused to stop what he was doing during the massage. [ 22 ] The complainant agreed that she did consent to a chest massage, but on this point was quite clear in her answer in cross- examination that she believed that she was going to receive a “décolleté massage”, which entailed shoulder and chest massage, but not breast. On this point there was a series of questions and answers responsive to a description of a décolleté massage: Q Okay.

But you do recall it being asked about a chest massage and your answer was clear that, yes, you wanted a chest massage, right? THE INTERPRETER: Yes, I answered to the question. I -- I thought décolleté massage meant chest massage. Sorry, the interpreter has to correct, sorry. I'm sorry, I start from the beginning. Yes, I answered a question and I understand that décolleté massage involved shoulder massages as well, and I understood that chest massage is -- chest massage meant décolleté massage, that's why I said "yes" to the question. MR.

KARP: Q This décolleté massage, or however you're calling it, that was never expressed at the time. Mr. -- John didn't ever say to you, "I'm going to now give you a décolleté massage," did he? THE INTERPRETER: No, he didn't mention décolleté massage. I received décolleté massage many times in different countries, and when people says -- people said "chest massage" it was all décolleté massage that I received. And no massage therapist touched breast. MR. KARP: Q Okay. That was your understanding was any chest massage was décolleté, but those words were never spoken at that time, correct? THE INTERPRETER: Okay.

Could you repeat that last part, please. We didn't talk about technologies, but I studied about massage a lot. In total I went to school for three years. I do my job with my pride. And relax massage and sexual massage are totally different thing. MR. KARP:

Q Okay. THE INTERPRETER: And also I have a lot of qualifications. MR. KARP: Q Okay. I don't doubt that. Now, you testified that, as I understood it, that even with décolleté massage - I can't say properly - that it was very unusual for a male to give this massage to a woman; is that true? THE INTERPRETER: For décolleté massage, both men and women can do it. But for chest massage, male therapists -- massage therapist cannot give a massage to female. MR. KARP: Q Right. So for chest massage, even in this décolleté technique, a male does not give a chest massage to a woman in a practitional setting, correct?

THE INTERPRETER: Yes. Chest massage is for reverse your oldness. Usually clients are female who are getting older, and then this massage gives their chest breast to better shape. MR. KARP: Q Okay. But you agreed to a chest massage. That much we can -- we have no complications of understanding this, correct? You agreed to a chest massage? Correct? A Yes. Q Okay, and you did that despite knowing that it is very unusual for a male to give a chest massage, however you want to define that word "chest massage" it's very unusual for a male to do that to a woman, right?

THE INTERPRETER: Many massage therapists use décolleté massage and the chest massage interchangeably. So when he said "chest massage" I understood that it meant décolleté massage, that's why I said, "Yes." (Transcript, May 24, 2013, Page 43, Lines 20-47 and Page 44, Lines 1-45) [ 23 ] In relation to the position of the sheet when the complainant was on her back she could not recall in cross-examination if it was pulled off or pulled down.

A statement that the complainant provided to the police was put to her, which revealed that she said that her “blanket was pulled down and I was given a massage on my tummy for one to two minutes first.” (Transcript, May 24, 2013, Page 48, Lines 39-47 and Page 48, Lines 1-2.) [ 24 ] When it was suggested to the complainant in cross-examination that her breasts were exposed for one to two minutes before they were touched she answered that she could not remember.

The following exchange in cross-examination took place concerning her reaction to the touching of her breasts by the accused: Q Okay, and clearly you didn't at any time say, "John, stop," or "pull up the blanket," or yell for help. You didn't do any of those things, did you? A Yes. Q Instead you remained completely quiet, and completely still, right? THE INTERPRETER: My worst couldn't come out.

I got frozen and I didn't understand what happened. (Transcript, May 24, 2013, Page 49, Lines 5-13) [ 25 ] The complainant agreed in cross-examination that after the receptionist came to the door to advise that a client had arrived, that she did not jump up, get dressed and leave the clinic. Rather, she stayed and provided massage treatments to two clients.

However, she went on to note that she cancelled two other client appointments as a result of what had happened with the accused. [ 26 ] The complainant agreed in cross-examination that she recorded a conversation between herself and the accused in the back room of the clinic on September 16, 2012.

She stated that the purpose of this surreptitious recording was to gather evidence to provide to the police. [ 27 ] It was put to the complainant in cross-examination that she was actually involved in a rather elaborate plan which would have the complainant participating in consensual sex with the accused for potential blackmail purposes. It was suggested to the complainant that the plan fell apart when the accused left the treatment room. This motivation was denied by the complainant in the following exchange: Q You manipulated a situation where you knew that John was attracted to you, right?

THE INTERPRETER: I didn't think -- I didn't think that he had feelings for me at all. MR. KARP:

Q You agreed to a massage where you were essentially naked, other than in your underwear -- A Yes. It's normal. Q -- with a man -- with a man who had taken you for dinner on two occasions and had discussions about other social interactions with you? THE INTERPRETER: First of all, the boss and the friend are totally different. If I know that a male have romantic feelings to me, then I will not go to dinner with that person. MR. KARP: Q I'm suggesting to you that unfortunately for you your plan got messed up when John had to leave the room, and that you were intending more to happen?

THE INTERPRETER: The interpreter would like to clarify which room. MR. KARP: Q In -- while she was getting the massage from John. THE INTERPRETER: I didn't want anything. (Transcript, May 24, 2013, Page 71, Lines 8-31) [ 28 ] The receptionist began working at the clinic on September 1, 2012. Her duties included answering phone calls, greeting clients, scheduling staff and scheduling appointments.

She would also assist walk-in clients in scheduling a treatment. [ 29 ] She described her relationship with both the accused and the complainant as casual and friendly. [ 30 ] In direct examination, the receptionist testified that she arrived at the clinic on September 16, 2012, just before 12 noon. As she arrived at the clinic, the accused came out of the treatment room adjacent to the reception area to advise that he was giving a massage to the complainant. The accused also told the receptionist that if a client was to arrive to let him know.

The accused then went back into the treatment room and closed the door behind him. [ 31 ] Approximately 15 minutes later a walk-in client came into the clinic. The receptionist knocked on the treatment room door and indicated that a client had arrived for treatment. The receptionist recalled that the accused opened the door and told her that he would be right out. [ 32 ] Shortly after that the accused came out of the treatment room to deal with the walk-in client.

After that, the receptionist recalled that the complainant left the treatment room and that she looked “angry and uncomfortable.” The receptionist asked the complainant if she was all right but did not receive a response. [ 33 ] The receptionist further testified in direct examination that sometime later the complainant and the accused were in the rear staff/lunch room area.

She heard the complainant state in a loud and angry voice, “you touched me and bit me.” [ 34 ] The receptionist further testified in direct examination that there was a further confrontation between the complainant and the accused in the reception area of the clinic.

She recalled that both were angry at each other and the receptionist was told by the accused to calculate the complainant’s hours so a cheque could be cut for the complainant as she was quitting. [ 35 ] The receptionist described in direct examination that she was “shocked” to hear this news as it was her understanding that the complainant liked working at the clinic.

It was during this confrontation between the complainant and the accused that she heard the complainant tell the accused that he was “so damn cheap.” [ 36 ] She further testified in direct examination that she asked the complainant what happened and the complainant told her the accused had touched her breasts and bit her. At this time, the accused had gone to the bank to get some cash for the complainant. The receptionist testified that upon the return of the accused she told him that she had heard the complainant's version of what happened in the treatment room and wanted to know what his version was.

She testified that the accused told her that what he did was “wrong”, but denied that he had bit the complainant. The receptionist testified that she told the accused that his conduct was “unethical.” [ 37 ] The receptionist recalled in direct examination that several days later she was speaking to the accused in a treatment room at the clinic about his massage of the complainant when he again admitted that what he did was wrong. The receptionist told him what he did was wrong and that he could lose loyal clients by acting in the manner he did with the complainant.

The accused again denied biting the complainant and went on to tell the receptionist that he felt the complainant was trying to blackmail him for more money. [ 38 ] In cross-examination, the receptionist confirmed that she was aware that the accused and the complainant had gone out on a couple of dinner engagements.

She also confirmed in cross-examination that the accused would sometimes bring lunch to the clinic for the staff, including the complainant. [ 39 ] The receptionist denied that she saw any romantic or flirtatious behaviour between the accused and the complainant though she did view them casually as boyfriend and girlfriend. [ 40 ] Though it was suggested to the receptionist in cross-examination that she may not have had a clear recollection of what was said

between the accused and the complainant in the afternoon hours of September 16, 2012, she told the Court that she clearly heard the complainant yelling “you touched me and bit me”. Later, when questioned by the accused about what happened, that the accused told her, “I know what I did was wrong.” She did agree when questioned by the accused that the accused did not say what that “wrong” was. [ 41 ] In response to further questioning by the accused, the receptionist testified that it was her understanding that the massage on September 16, 2012, between the complainant and the accused, was to be a mutual massage.

It was the complainant who complained about the breast massage. It was through this line of questioning by the accused that she recalled the accused telling her that, “he did something wrong but he had her consent.” [ 42 ] The accused suggested to the receptionist that the complainant was “fixated” on getting money from the accused. The receptionist agreed with that characterization. The receptionist also confirmed when asked by the accused that at no time did the complainant show her the bite mark to her breast. [ 43 ] The accused is 47 years of age and was born in China.

He testified in direct examination that he came to Canada in 1998 and is now a Canadian citizen. He is separated from his wife and he is the father of a 16 year old daughter. In light of his separation, he is living at the clinic. [ 44 ] The accused is a registered acupuncturist and is proud of what he describes to be an unblemished record as an acupuncturist. As a result of the sexual assault allegation, he is currently suspended. The accused has no criminal record. [ 45 ] The accused confirmed that he hired the complainant on a part-time basis in July of 2012.

He described that he viewed the complainant to be someone “special” shortly after she was employed at the clinic. The complainant would assist at the clinic over and above her massage duties by cleaning up and helping with the laundry. [ 46 ] The accused testified that they would share lunch meals in the staff/lunch room area. The accused testified that shortly after the complainant was hired that he invited her out to dinner at a Japanese restaurant.

Though nothing physical took place, he felt that this first dinner brought the two of them much closer. [ 47 ] The accused recalled that he invited the complainant out to a second dinner in August of 2012. That dinner took place at a Chinese restaurant, and while nothing physical took place, he recalled that the complainant had the server take a photograph of the two of them with her camera. [ 48 ] At this dinner he testified that he felt the two of them were developing a closer relationship, and they even discussed playing tennis together, going to the PNE and going to Whistler.

He also testified that he was very happy when she gave a pen as a gift to him at this dinner. [ 49 ] Though the accused felt he was becoming closer to the complainant, and that he was beginning to view her as a future girlfriend, he never told her of those feelings at the dinners. [ 50 ] The accused testified that the two of them discussed the prospect of a mutual massage on September 15, 2012. He testified that they agreed to have the mutual massage the next day, time permitting. On September 16, 2012, the accused testified that the complainant came to the clinic around noon.

It was his recollection that the complainant had no one booked for a massage until 1:00 pm, so he told her that they would have time to do the massage exchange. [ 51 ] He testified that they went into the treatment room adjacent to the reception station. There was no discussion about the type of massage at that time. It was agreed that the complainant would receive the first massage.

The accused testified that he briefly left the treatment room, and when he returned, the complainant was under a two layer sheet, naked except for panties. [ 52 ] The accused testified that he commenced the massage with acupressure over the sheets on the complainant’s back. The accused then pulled the sheets to the side, exposing the back, and with the use of oil, massaged the complainant's back. He testified that the complainant was enjoying the massage from her breathing sounds and bracing. The accused then moved on to the legs. It was at this point that he heard a noise from the reception area.

The accused testified that the treatment room door was ajar and he could see that the receptionist had arrived. [ 53 ] The accused testified that he then asked the complainant “shall we do front” and that she responded with a “yes.” The accused testified that he then went out of the treatment room and told the receptionist that he was giving a massage to the complainant and if a client was to arrive to let him know. [ 54 ] When asked by his counsel about his experience in giving a front massage to a female, the accused testified that he had never given a front massage to a female before and that it was his further opinion that: “I do not think any male should do that massage with any female client.” (DARS, September 4, 2013, 10:28:30.) [ 55 ] However, the accused described the atmosphere as very relaxed and that he was feeling closer to the complainant in a more intimate sense.

In the following passage in direct examination, the accused described his feelings as follows: …. maybe I thought she has some (indecipherable) for me and I also have some good feeling about her. I think maybe it is time for me to step forward. (DARS, September 4, 2013, 10:30:00.) [ 56 ] The accused testified that at this time he was getting various cues from the complainant which indicated to him that she wanted the massage to go further.

Those cues included her expressions, her heavy breathing, and sounds consistent with pleasure. [ 57 ] As a result of those cues, the accused testified that he wanted to explore opportunities with the complainant in the following

passage: I want to just like explore opportunities…. Do you want I to do chest massage for you? (DARS, September 4, 2013, 10:31:00.) [ 58 ] While testifying that he was only “half kidding” when he asked if the complainant wanted a chest massage, he also testified that: “as a male I should like have more initiative.” The accused testified that he expected that the complainant would refuse a chest massage and he was “shocked” when she agreed to have a chest massage.

He testified that he asked her again if she was “sure” and she said “yes.” [ 59 ] The accused testified that the complainant could have said “no”, but she said “nothing”, as he slowly pulled the sheet down from her neck. It was her silence that caused the accused to assume that the complainant wanted a further relationship with him. [ 60 ] The accused testified that his hands were shaking and that he went to the side of the treatment room to apply oil to his hands, leaving the complainant naked to the bellybutton.

The complainant continued to say nothing and the accused testified that he had to go slow to calm himself down. He recalled that after two to three minutes, he then commenced a massage of her tummy and then moved his hands up to her breasts. [ 61 ] He testified that the complainant still said nothing and that he was not using any violence whatsoever, so he continued with the massage of her breasts in particular, as she never told the accused to stop.

He told the court: “what was I to do.” [ 62 ] Though no words were spoken between the two, he testified that he was encouraged by cues that she presented including: “her closed eyes; deep breathing; relaxing verbal sounds”. As a result of those cues, the accused felt that the complainant wanted him to go further, so he kissed both her nipples.

He felt this sexual action was justified in the following passage: …. all the expressions indicated she wanted me to get to the point… keep on going was her expression. (DARS, September 4, 2013, 11:05:00.) [ 63 ] He testified that he kissed both nipples twice as a sign of his love and care for the complainant and that after he kissed both her nipples, the complainant opened her eyes and gave the accused a shy smile.

Though he had gone this far with the complainant, the accused decided that he did not want to have sex with her, so he covered her upper torso with the sheet. [ 64 ] The accused testified that he was surprised when the complainant slapped her leg and said “leg.” The accused was of the mind that the complainant wanted more than just a leg massage. Indeed, it was his opinion that the complainant maybe wanted him to go to her “private parts”, as her legs were now wide apart.

The accused testified that he did not take any further initiative in relation to any further sexual activity. [ 65 ] It was then that he recalled the receptionist knocking on the door to tell him that a client had arrived. The accused testified that he left the treatment room to deal with the client, but it was also his intention to later talk to the complainant about the prospect of having a closer relationship that night. [ 66 ] Several hours later, the accused testified that he was confronted by the complainant who accused him of touching her.

He told the Court that he was shocked, and in response told the complainant that he had asked her if he could give her a chest massage and that she had agreed to the chest massage. [ 67 ] There was a further confrontation after that meeting between the accused and the complainant, during the course of which the accused testified that the complainant told him she no longer wanted to work at the clinic. It was at this time that the complainant told the accused that she had been bitten by him.

He testified that he denied biting her, but agreed that he had touched her. [ 68 ] The accused testified that he told the receptionist to prepare a closing cheque for the complainant. It was at that time that he began to tell the receptionist about what had happened between himself and the complainant. Through the course of that discussion, the accused testified that the complainant wanted a chest massage and that “her breasts come out and she does nothing.” [ 69 ] The accused testified that the complainant was extremely bitter towards him and that money became the focus of her concern.

He testified that through the latter part of the afternoon of September 16, 2012, and by actions of the complainant in the days and weeks that followed, he was essentially being blackmailed for money by the complainant. He testified that he went to the bank on September 16, 2012, after the complainant quit, and withdrew $100 which he gave to her along with the cheque.

She returned the $100 several days later and the accused thought the $100 was not enough money to satisfy the complainant. [ 70 ] In cross-examination, the accused testified that shortly after he had hired the complainant he became romantically interested in her. He agreed that after the first dinner he felt close to the complainant and that after the second dinner, he felt much closer and that there were greater possibilities to expand the relationship. [ 71 ] Crown Counsel put to the accused that those romantic feelings were entirely inconsistent with a statement he made to the police on September 23, 2012.

It was during the course of that interview that the accused told the police officer that he did not think the complainant and he would be a good match because she was not his “type”. The accused, in response, told the court: “I maybe said that.” [ 72 ] The accused also testified that a portion of his statement was “incorrect” when it was put to him by Crown Counsel that he told the police officer that the complainant had a client scheduled in the morning of September 16, 2012.

[ 73 ] The accused conceded in cross-examination that his primary expertise relates to acupuncture and not massage.

Anything he learned in relation to massage was passed along through co-workers and through hands-on experience. [ 74 ] In further cross-examination with respect to the appropriateness of a male therapist performing a chest massage on a female, the accused told the Court that he would not do any such chest massage with a woman “without a relationship.” [ 75 ] It was suggested by Crown Counsel that at no time did the accused ask the complainant if he could massage her breasts, including the nipples, and kiss her nipples.

The accused, in response, told the Court that he felt he had her “whole consent or she will say no.” [ 76 ] The accused went on to describe his sexual advances on the complainant as an exploration. He described this exploration as follows: “I explore to see if I get meanings right or wrong.” (DARS, September 4, 2013, 3:55:10.) [ 77 ] When cross-examined on the appropriateness of the conduct of the accused in exposing and touching the breasts of the complainant he responded as follows: I shouldn’t have looked at it. Shouldn’t have touched it in first place. She shouldn’t have let me take sheet off….

What woman would let a man do that. (DARS, September 4, 2013, 3:57:22.) [ 78 ] When the accused was asked by Crown Counsel how far he was prepared to go if the receptionist had not knocked on the door, he told the Court that intercourse was a possibility. [ 79 ] The accused agreed that in his statement to the police that when he pulled the sheet down on the complainant that he became “lost.” It was further put to the accused that in his statement to the police in relation to the physical contact with the complainant he stated: “I was in shock and a little curious…. maybe she wanted to have some closeness with me.” In response, the accused told the Court that the complainant did not move and never said no. [ 80 ] When asked by Crown counsel to describe his relationship with the complainant at the time of the massage, he felt that she was like a girlfriend to him and that his love kisses were something that he would do to a girlfriend or a wife.

POSITION OF THE PARTIES [ 81 ] It was submitted by Crown Counsel that sexual assault is a crime of general intent and that the Crown need only prove beyond a reasonable doubt that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement. [ 82 ] It was further submitted that the common law defence of mistake of fact will only apply where an accused honestly but mistakenly believed that he or she had informed consent to touch the complainant.

It was submitted that for the defence of honest but mistaken belief to apply that there must be an air of reality to this defence. [ 83 ] It was submitted by Crown Counsel that the evidence would not support an air of reality to the honest but mistaken belief defence. [ 84 ] It was submitted that the Court should not find that the relationship between the accused and the complainant, in any way, shape, or form, amounted to a romantic relationship.

It was submitted that their relationship, from the perspective of the complainant, was entirely professional and any suggestion to the contrary by the accused would have no basis in reality. [ 85 ] It was further submitted that the evidence of the accused and the evidence of the complainant are clearly at odds in relation to his evidence that at the second dinner the two of them discussed playing tennis together, going to the PNE, or going to Whistler.

The Court was asked to accept the evidence of the complainant, who denied that those discussions ever occurred. [ 86 ] It was further submitted by Crown Counsel that at the commencement of the massage, both the complainant and the accused testified that the massage was to be a professional massage and there was no suggestion of intimacy by either party.

The accused was well aware of massage protocols involving a male to female massage and that, in his own evidence, a male therapist should never touch a woman's breast in the course of a massage. [ 87 ] It was submitted by Crown Counsel that there could be no air of reality to the assertion of the accused that the complainant’s actions, and her lack of verbal responses to his touching, could possibly lead him to honestly believe that she was consenting to his sexual advances.

It was noted in the evidence of the accused himself, that until he commenced the front massage, there were no sexual overtones to the massage. [ 88 ] It was further submitted that the complainant’s actions and words, or lack thereof, both prior to and at the time of the massage, could not be described as flirtatious and inviting sexual attention.

Any such belief in the mind of the accused could only be grounded in fantasy as opposed to reality. [ 89 ] Crown Counsel further submitted that the receptionist gave her evidence in a cautious and unbiased manner, and that her observations would be both credible and reliable.

She had communication with the accused on September 16, 2012, and several days later, and on both occasions the accused told her that what he did to the complainant was “wrong.” [ 90 ] In the alternative, were the Court to find an air of reality to the defence of honest, but mistaken belief in relation to consent, it was submitted by Crown counsel that at the time of the breast massage and the kissing of the breasts, including any bite, that the accused failed to make any inquiry whatsoever about whether the complainant was actually consenting to sexual contact. [ 91 ] It was submitted that the inquiry could be a simple and direct one with the accused simply asking for the consent of the

complainant in the treatment room. It was submitted that the law is clear that the accused cannot rely on the silence of the complainant or her equivocal conduct to establish a belief in the existence of consent. [ 92 ] In failing to make any such positive inquiry, it was submitted by Crown Counsel that the accused acted in a reckless manner, or failed to take reasonable steps to determine what exactly the complainant would consent to with respect to sexual contact.

The accused’s acknowledgment that he had done something “wrong” should indicate his own appreciation that he had proceeded recklessly or without proper regard to the consent of the complainant. Accordingly, it was submitted that the defence of honest but mistaken belief in relation to consent would not avail the accused. [ 93 ] It was submitted by the accused that he honestly believed that a romantic relationship was developing between himself and the complainant after she was hired at the clinic.

The accused characterized the dinners as “dates” and the actions of the complainant at those dinners would satisfy that belief. In particular, when the complainant had a photograph taken of the two of them at the second dinner, and the gifting of the pen. [ 94 ] It was further submitted by the accused that the Court should accept his evidence when he testified that there were discussions concerning playing tennis, going to the PNE, and going to Whistler. [ 95 ] It was submitted by the accused that the evidence of the complainant was unbelievable.

It was submitted that the complainant would have the Court believe that there was no prior relationship between the parties. It was submitted that her actions would be contrary to that belief. [ 96 ] It was submitted that at the time of the massage, both the complainant and the accused were well aware that it was to be a joint massage. Not only that, the complainant herself consented to a chest massage.

The complainant was aware that a male therapist should never touch female breasts during massage, so why would she consent to a chest massage? [ 97 ] It was submitted by the accused that if the complainant was not consenting, then why the complete lack of reaction to the sexual contact? In particular, why would she not call out or complain when the accused touched her breast?

In addition, the complainant either could not remember in detail or was inconsistent in her responses to the position of the covers on her body at the time of the front massage. [ 98 ] It was submitted by the accused that the complainant came in early on September 16, 2012, when she did not need to do so. It was submitted that the complainant came to the clinic early as she was clearly interested in having the mutual massage as discussed with the accused on September 15, 2012. [ 99 ] It was submitted that the accused acted appropriately in using the treatment room adjacent to the reception area.

Until the receptionist arrived, the accused acted appropriately in leaving that room door ajar. It was further submitted that the accused followed appropriate protocols in performing the back massage.

It was when the complainant consented to the chest massage that the accused then honestly believed that the professional relationship had now moved to a more intimate relationship. [ 100 ] It was submitted by the accused that when faced with all of the information he had in his mind, that it was time for him to “make his move.” While agreeing that he may have been somewhat “eager” in going to the next level with respect to the massage of the breasts and the kissing of the breasts, it was submitted by the accused that, nonetheless, the invitation to justify such sexual contact could honestly result from the complainant's actions in the treatment room and events leading up to the massage. [ 101 ] Those actions or cues included the closed eyes of the complainant, the relaxed atmosphere and her relaxed response to the massage, or deep breathing, her bracing, and what the accused described as cooing noises coming from the complainant.

In addition, the accused was further supported in this honest belief by his prior “dates” with the complainant and their interaction at the clinic. [ 102 ] Indeed, it was submitted that the actions of the complainant after the massage established ulterior motives for the complainant accusing the accused of sexual assault. As someone who had just been assaulted as she asserts, the complainant says or does nothing for several hours after the massage.

In fact, the complainant performs two massage treatments. [ 103 ] It was further noted by the accused that if the complainant was bitten, which was denied, then why would she not call out or make some noise in the treatment room? In addition, she clearly had the opportunity to show the receptionist the bite mark, but failed to show that mark to the receptionist. [ 104 ] It was further submitted that the Court should accept the evidence of the accused, that after he pulled the covers up on the complainant, she indicated that she wanted to have a leg massage.

It was submitted that the complainant was looking for more sexual activity and the accused was not forthcoming. [ 105 ] It was submitted that the money demands by the complainant after the interrupted massage demonstrate that it was her premeditated plan to entrap the accused into a non-consensual sexual contact and then to extort money from him.

The accused submitted that the text messages between the complainant and the receptionist should establish that as the complainant did not get the amount of money she wanted from the accused that her plans were to first go to the police, and failing police action that she would sue the accused. [ 106 ] On all of the evidence, and emphasizing the reliability of the evidence of the complainant, the accused submitted that the defence of honest but mistaken belief with respect to consent would operate in favour of the accused.

As such, the Crown must prove beyond a reasonable doubt that the accused did not have an honest belief in the consent of the complainant. It was submitted the Crown has not discharged their burden. LEGAL FRAMEWORK [ 107 ] The accused has been charged with sexual assault.

Section 271 of the Criminal Code reads as follows:

Sexual assault 271. Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16years, to a minimum punishment of imprisonment for a term of one year; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if thecomplainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days. R.S., 1985, c. C-46, s. 271;R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19; 2012, c. 1, s. 25. [108] Consent in relation to the intention to commit a sexual assault is limited by both the common law and by the provisions set out ins. 273.1(2) and s. 273.2 of the Criminal Code. Those sections read as follows: Meaning of “consent” 273.1 ... Marginal note: Where no consent obtained

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (

b) the complainant is incapable of consenting to the activity; (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue toengage in the activity. Where belief in consent not a defence 273.2 It is not a defence to a charge under

section 271, 272 or 273 that the accused believed that the complainant consented to theactivity that forms the subject-matter of the charge, where (

a) the accused’s belief arose from the accused’s (

i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainantwas consenting. 1992, c. 38, s. 1. [109] In R. v. Ewanchuk, (SCC), [1999] 1 SCR 330, at para. 25, the Court describes the actus reus of sexual assaultas follows: 25 The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact, and(iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused's actionswere voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens reawith respect to the sexual nature of his or her behaviour: see R. v.

Litchfield, (SCC), [1993] 4 S.C.R. 333, and R. v.Chase, (SCC), [1987] 2 S.C.R. 293. [110] In Ewanchuk, the Court addresses confusion that has arisen with respect to the meaning of the presence or absence of consent insexual assault cases. As that may apply to the actus reus of an offence, the Court addresses that issue at para. 27 in the followinglanguage: ... While this may be true in the general use of the word, for the purposes of determining the absence of consent as an element of theactus reus, the actual state of mind of the complainant is determinative.

At this point, the trier of fact is only concerned with thecomplainant's perspective. The approach is purely subjective. [111] It is incumbent on the trial judge in a sexual assault trial that the credibility of the complainant be assessed in light of all of the

evidence. An accused is entitled to claim that the complainant's words and actions, before and during the alleged sexual assault, raise areasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.

If the trial judge believes thecomplainant that she subjectively did not consent, then the Crown has discharged its obligation to prove the absence of consent. (SeeEwanchuk at para. 29.) [112] The complainant's statement that she did not consent is a matter of credibility for the assessment of the Court, and must beweighed in light of all of the evidence, including any ambiguous conduct. The accused’s perception of the complainant’s state of mind isnot relevant.

The perception of the accused only enters the analysis when a defence of honest but mistaken belief in consent is raised inthe mens rea stage of the inquiry. (See Ewanchuk at para. 30.) [113] In relation to the mens rea of sexual assault, Ewanchuk, at paras. 41 and 42, establishes that sexual assault is a crime of generalintent and that the Crown need only prove that the accused intended to touch the complainant to satisfy the mens rea component.

At thesame time, the Court acknowledged the common law defence of mistake of fact, and an accused will be acquitted if he or she honestlybut mistakenly believed that the complainant had consented to the sexual touching. [114] In this case, the accused has put the consent of the complainant into issue. In particular, the accused has asserted that he had anhonest belief in the consent of the complainant but this belief was mistaken.

The Court in Ewanchuk sets out the approach a trial Courtmust take in determining this issue in the following language, at paras. 64 and 65: 64 In cases such as this, the accused's putting consent into issue is synonymous with an assertion of an honest belief in consent. If hisbelief is found to be mistaken, then honesty of that belief must be considered. As an initial step the trial judge must determine whetherany evidence exists to lend an air of reality to the defence.

If so, then the question which must be answered by the trier of fact is whetherthe accused honestly believed that the complainant had communicated consent. Any other belief, however honestly held, is not adefence. 65 Moreover, to be honest the accused's belief cannot be reckless, willfully blind or tainted by an awareness of any of the factorsenumerated in ss. 273.1(2) and 273.2.

If at any point the complainant has expressed a lack of agreement to engage in sexual activity, thenit is incumbent upon the accused to point to some evidence from which he could honestly believe consent to have been re-establishedbefore he resumed his advances. If this evidence raises a reasonable doubt as to the accused's mens rea, the charge is not proven. [115] For there to be an air of reality to the defence of honest but mistaken belief in consent, the Court in R. v.

Park, [1995] 2 S.R 836,at para. 20, identified the following evidentiary requirements: 20 Essentially, for there to be an "air of reality" to the defence of honest but mistaken belief in consent, the totality of the evidence forthe accused must be reasonably and realistically capable of supporting that defence. Although there is not, strictly speaking, arequirement that the evidence be corroborated, that evidence must amount to something more than a bare assertion. There must be somesupport for it in the circumstances.

The search for support in the whole body of evidence or circumstances can complement anyinsufficiency in legal terms of the accused's testimony. The presence of "independent" evidence supporting the accused's testimony willonly have the effect of improving the chances of the defence. The judge's role is limited to ascertaining whether the accused hasdischarged the evidentiary burden imposed by s. 265(4) of the Code. [116] Consent in sexual assault cases derives from the private mental state of an individual. Consideration of communication ofconsent may require the drawing of inferences.

This may include verbal and non-verbal cues from which a trial Court can drawinferences about a particular mental state by evaluating an individual's behaviour in light of the totality of the circumstances. (See Parkat para. 43.) [117] If a trial Court is satisfied that there is some evidence to lend an air of reality to the defence of honest but mistaken belief inconsent, then the next stage of the inquiry is to determine whether or not the accused honestly believed the complainant hadcommunicated consent. (See Ewanchuk at paras. 64 and 65.) [118] In relation to the honest component of the defence of honest but mistaken belief in consent, an accused cannot be reckless orwilfully blind as prescribed by s. 273.2(a)(ii) of the Criminal Code. [119] The Manitoba Court of Appeal in R. v.

Malcolm, 2000 MBCA 77 , [2000] M.J. No. 387, at para. 12, explained theconcept of recklessness and wilful blindness in the following language: 12 In Sansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570, McIntyre J., for the Court, explained the concept ofrecklessness and then distinguished wilful blindness (pp. 581 and 584 respectively). Recklessness will arise where an accusedsubjectively perceives a danger or risk that consent is not present, but proceeds in any event.

Wilful blindness, on the other hand, willarise in situations where it is obvious in the circumstances that there is no true consent (not just a risk that there may not be a consent),but the accused does not confirm that lack of consent because he wants to be able to say that he did not "know" that there was no consent. [120] The defence of honest but mistaken belief in consent will not apply if an accused fails to take reasonable steps in circumstancesknown to him to ascertain consent (s. 273.2(b)). The Court in Malcolm, at para. 24, identified the approach to be taken in this assessmentas follows: 24

Section 273.2(

b) requires the court to apply a quasi-objective test to the situation. First, the circumstances known to the accusedmust be ascertained. Then, the issue which arises is, if a reasonable man was aware of the same circumstances, would he take further

steps before proceeding with the sexual activity? If the answer is yes, and the accused has not taken further steps, then the accused is notentitled to the defence of honest belief in consent. If the answer is no, or even maybe, then the accused would not be required to takefurther steps and the defence will apply. [121] There are limits on honest but mistaken belief in consent to sexual activity. Not all beliefs upon which an accused might rely willexculpate him. For example, a belief that silence, passive behavior or ambiguous conduct constitutes consent is a mistake of law andprovides no defence.

The Court in Ewanchuk, at para. 51, addressed this limitation as follows: 51 For instance, a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence:see R. v. M. (M.L.), (SCC), [1994] 2 S.C.R. 3. Similarly, an accused cannot rely upon his purported belief that thecomplainant's expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact.An accused cannot say that he thought "no meant yes".

As Fraser C.J. stated at p. 272 of her dissenting reasons below: One "No" will do to put the other person on notice that there is then a problem with "consent". Once a woman says "No" during thecourse of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal "Yes" beforehe again touches her in a sexual manner. [Emphasis in original.] I take the reasons of Fraser C.J. to mean that an unequivocal "yes" may be given by either the spoken word or by conduct. ANALYSIS AND FINDINGS OF FACT (

i) State of Mind of the Complainant [122] The complainant testified that she did not consent to the sexual touching by the accused in the treatment room. Accordingly, it isnecessary to determine her state of mind taking into account the totality of the evidence. The question is one of credibility. [123] The complainant was assisted by a Japanese interpreter. This assistance was not required at all times in her delivery of herevidence as she did have some command of the English language. [124] I found the complainant to be responsive to questions put to her both in direct examination and in cross-examination.

Inparticular, though embarrassed, she related events in the treatment room surrounding the chest massage with clarity. I accept her evidencethat when the accused massaged her bare breasts and kissed her nipples that she “froze.” [125] I also accept her evidence that up to that point her body and mind were in a relaxed state and that she was half asleep.

Thoughthere was some inconsistency in her evidence respecting the position of the cover on her upper torso, such inconsistency did not, I find,undermine the reliability of her evidence in relation to the touching by the accused. [126] I also find that the touching by the accused, including the kissing and alleged bite, took place over a very short period of time,being seconds rather than minutes as asserted by the accused.

It did not make sense that the complainant would lay passively on thetreatment table with her breasts exposed for upwards of two to three minutes while the accused composed himself. [127] The receptionist gave her evidence in a careful and unbiased manner. I found the receptionist to be a credible, reliable andtrustworthy witness beyond a reasonable doubt.

I did not find that the receptionist demonstrated any bias against either the accused or thecomplainant. [128] I accept the evidence of the receptionist that when the complainant left the treatment room following the massage that shelooked “angry and uncomfortable.” I also accept the evidence of the receptionist that there was a confrontation in the staff/lunch roomwhen the receptionist overheard the complainant yelling “you touched me and bit me.” [129] I accept the evidence of the receptionist that she was surprised when the complainant quit her job on September 16, 2012 as, upto that point, it was the belief of the receptionist that the complainant enjoyed her work at the clinic. [130] I reject the assertions of the accused that the complainant had any premeditated plan to entrap the accused into touching hersexually and feigned consent in order to blackmail him.

Though it was suggested to the complainant that she was experiencing financialdifficulties prior to the massage by the accused, I accept the evidence of the complainant that any such difficulties were minor and didnot form part of any motive to set the accused up for blackmail prior to the massage or, for that matter, any post massage plan toblackmail the accused. [131] I find that the complainant was angry at the accused for touching her in the treatment room, and her demand for an extra “0” onthe $300 closing cheque amounted to no more than a reaction to this anger.

While she did receive $100 from the accused, I accept herevidence that in hindsight she realized that she should not have accepted the money, which explains why she returned the $100. [132] The conversation recorded by the complainant between the accused and the complainant on September 16, 2012, in thestaff/lunch room was explained by the complainant as a need to have a record of the assault.

I accept her explanation. [133] Text messages forwarded by the complainant to the receptionist suggesting some sort of campaign against the accused do not, Ifind, support the position of the accused that he was the victim of blackmail. It was clear from those text messages that the complainantlacked a familiarity with the English language.

[ 134 ] I found that the demeanor of the complainant in the witness stand clearly established that she was genuinely traumatized by what happened in the treatment room on September 16, 2012. It made sense that she would want to forget about what happened.

However, notwithstanding that desire, she related events surrounding the chest massage when it was clear that this was a negative experience for her. [ 135 ] I conclude that while there were some inconsistencies in the evidence of the complainant, that overall those inconsistencies did not undermine her credibility, reliability and trustworthiness respecting her consent, or lack of consent, to the sexual touching by the accused in the treatment room on September 16, 2012.

I do not find that there was any motivation on behalf of the complainant to concoct. [ 136 ] Accordingly, I am satisfied beyond a reasonable doubt that the complainant did not in fact consent to the sexual touching by the accused and therefore the actus reus of sexual assault is established. (ii) State of Mind of the Accused [ 137 ] Prior to the massage in the treatment room on September 16, 2012, the accused testified that, in his mind, there was a developing romantic relationship between himself and the complainant.

The basis for this belief was founded on a variety of factors including: the two dinner “dates”; the gift of the pen on the second dinner “date”; the photograph taken of the two of them on the second dinner date; his assertion that there were conversations respecting going to the PNE, playing tennis together and going to Whistler; her help in doing chores around the clinic; coming to work early when no client was scheduled; having lunches together at work; and her agreement to participate in a joint massage. [ 138 ] With these factors in mind the accused testified that when the discussions turned to the prospect of a chest massage in the treatment room on September 16, 2012, he was feeling much closer to the complainant.

When the complainant consented to a chest massage, the accused testified that he was in a state of “shock.” He then, as he put it, took the “initiative” and proceeded with the massage of the breasts including the kissing of the nipples. He adamantly denies biting her breast. [ 139 ] The threshold that must be established to advance the defence of honest but mistaken belief in consent, is whether there is an air of reality to the defence.

All that needs to be adduced is that there is some plausible evidence to support an air of reality. [ 140 ] I find in this case that there is some evidence to lend an air of reality to the defence.

Having so found, the next question that must be answered is whether the accused honestly believed that the complainant had communicated her consent to the sexual activity in the treatment room on September 16, 2012. [ 141 ] Moreover, as noted by the Supreme Court of Canada in Ewanchuk , at para. 65 : “….to be honest the accused’s belief cannot be reckless, willfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2 .” [ 142 ] For the following reasons, I conclude that the accused could not have honestly believed that the complainant had communicated her consent to the sexual activity in the treatment room on September 16, 2012. [ 143 ] I find that there clearly was a social relationship that had developed between the complainant and the accused after she was hired by the accused in July 2012.

Though the dinner engagements were characterized as “dates” by the accused I do not find that they establish any romantic foundation between the accused and the complainant. I have accepted the evidence of the complainant in relation to consent as credible, reliable and trustworthy.

I also accept her evidence beyond a reasonable doubt as credible, reliable and trustworthy in her denial of discussions respecting arrangements to play tennis together, go to the PNE and potentially go to Whistler. [ 144 ] The taking of the photograph during the course of the second dinner of the complainant and the accused could be viewed as some evidence of the establishment of some romantic interest by the complainant, but the taking of the photograph would also be consistent with a developing friendship.

In relation to the pen I accept the evidence of the complainant that she gave the pen as a gift to the accused in appreciation for the fact that he bought dinner. [ 145 ] While the receptionist may have viewed their relationship as boyfriend and girlfriend, her state of mind is not relevant to the state of mind of the accused. [ 146 ] I find that the fact the complainant came to work early, assisted in relation to chores and on occasion shared lunch with the accused simply demonstrated her positive work ethic.

I accept the evidence of the complainant that she enjoyed working at the clinic and frankly seemed to enjoy the company of the accused until things went wrong when she received the massage. [ 147 ] At no time did the accused ask the complainant when he was performing the massage if she wanted her breasts massaged. The complainant agreed to a chest massage and in her mind she thought the massage was to be décolleté.

This would entail shoulder and chest but not breast massage. [ 148 ] The accused was well aware from his experience in acupuncture and massage therapy that it was inappropriate for a male therapist to touch the breasts of a female client.

Here, the accused believed that there was a “relationship” between himself and the complainant which somehow altered the professional relationship into an intimate relationship. [ 149 ] While the accused asserts that the complainant was giving him cues to go further into the massage, I do not find that those cues could honestly have led him to believe that he could take the precipitous step of exposing the breasts of the complainant, massaging her breasts, kissing the nipples, and in her evidence, biting her right breast. [ 150 ] The accused testified that he wanted to “explore opportunities” and as a male that he should take the “initiative.” In describing this exploration, I note the evidence of the accused referenced at paragraph 76 of this Judgment where he testified in cross-examination: “I explored to see if I get meanings right or wrong” (DARS, September 4, 2013, 3:55:10.)

[ 151 ] The accused further testified that his honest belief in the consent of the complainant was also supported by the fact that the complainant never said anything to stop the accused from going forward.

As noted at paragraph 62 of this Judgment, the accused testified: “…all of the expressions indicated she wanted me to get to the point… Keep on going was her expression” (DARS, September 4, 2013, 11:05:00). [ 152 ] I reject the evidence of the accused when he testified that after he slowly pulled the cover back from the breasts of the complainant, he went to the side of the treatment room to apply oil to his hands to calm himself down, leaving the complainant half naked with her breasts exposed on the treatment table for two to three minutes.

I further reject the evidence of the accused when he testified that after he kissed the nipples of the complainant that she opened her eyes and gave the accused a “shy smile.” [ 153 ] I also reject the evidence of the accused when he testified that after he covered the upper torso of the complainant that she slapped her leg and said “leg” indicating, in the mind of the accused, that the complainant wanted more which could include him going to her “private parts.” [ 154 ] I have ruled on the demeanor of the complainant when she gave her evidence in this trial.

The above reactions related by the accused are entirely inconsistent with her presentation to the court. I have concluded that the accused has misled the Court, which adversely affects his honest belief in the consent to the sexual touching of the complainant. [ 155 ] If anything, the accused appears to be placing blame on the complainant for his predicament.

I find that the sexual touching by the accused of the complainant in the treatment room came about as a result of opportunity rather than an honest though mistaken belief that the complainant was consenting to the sexual touching. [ 156 ] I conclude that the evidence does not reasonably and realistically support the defence of honest but mistaken belief in consent. (iii) Application of s. 273.2 of the Code [ 157 ] The defence of honest but mistaken belief in relation to consent to sexual activity would also not avail the accused if, in light of all of the circumstances of this case, he was reckless, wilful or failed to take reasonable steps to ascertain that the claimant was consenting to sexual activity. [ 158 ] It should be kept in mind that the accused had been an acupuncture therapist for 12 years and was well aware of protocols that must be followed when a male therapist is providing therapy to a female client.

The accused testified that it was inappropriate for a male therapist to touch the breasts of a female client. [ 159 ] The very nature of the massage provided to the complainant by the accused in this case placed him in a position of power. The accused was standing over the complainant while she was lying on the treatment table under covers and except for a pair of panties otherwise naked.

He was controlling the physical environment but also had the clear ability to communicate with the complainant and to make inquiries concerning the massage. [ 160 ] In addition, I accept the evidence of the complainant that she was nearly asleep and that her eyes were closed during the massage. I also accept the evidence of the accused when he testified that the complainant was relaxed and that her eyes were closed.

Though I find the evidence to be inconclusive, it is probable that at times the complainant made some verbal noises indicating satisfaction with the massage on her back. [ 161 ] I accept the evidence of the complainant that she consented to a chest massage. While she did not tell the accused that the chest massage was to be décolleté it is also the case that the accused made no inquiry whatsoever as to the type of massage to be provided.

Rather, the accused expressed surprise and shock when the complainant consented to a chest massage. [ 162 ] One would expect that prior to exposing the breasts of the complainant and then massaging and kissing her breasts that at the very least the accused would, and should have, asked if that type of contact was “ok” or if she was “comfortable” with that type of contact. So that the complainant would be in a position to make an informed decision about sexual contact with the accused, any reasonable person standing in the shoes of the accused would have made further specific inquiries. [ 163 ] In R. v.

Zacher , [2009] A.J. No. 1374 , a male massage therapist was charged with the sexual assault of a female client. The sexual assault involved the massage of the client’s breasts. The Court found that the accused, as a certified massage therapist, clearly was aware of the privacy interests of a woman's body and the need to obtain a clear and concise consent before touching the breasts of a woman's body. [ 164 ] In Zacher , the Court found that it was incumbent on the accused to make further inquiry before conducting a massage of the client’s breasts.

The Court described the inquiry as a simple and direct one at para. 94 as follows: 94 I think it is also important and relevant that the further inquiry would have been a simple and direct one. It was not as if he was compelled by the force of the circumstances to presume consent based upon conduct or based upon a combination of words and conduct. It would have been a simple and reasonable thing for him to simply ask, "Would you like your breasts massaged?" [ 165 ] The accused seemed to justify the sexual touching because the complainant never protested and remained passive and silent.

I find the complainant’s silence and her passive physical presentation did not establish her consent to engage in sexual activity. The law is well-established that silence, passivity or ambiguous conduct will not constitute consent to sexual activity (see paragraph 121 of this Judgment).

[ 166 ] The accused himself admitted to the receptionist that what he did was wrong and he further admitted to the police that when he was conducting the massage he became “lost.” The accused took the initiative in touching the breasts of the complainant when he did not have her consent.

In his own words, he was exploring an opportunity absent any express consent by the complainant. [ 167 ] Accordingly, I find that the conduct of the accused amounted to both wilful blindness and a failure to take reasonable steps to ascertain that the complainant was consenting to the touching of her breasts. (iv) Applying the Legal Framework to the Analysis and Findings of Fact [ 168 ] The accused never disputed that he massaged the breasts of the complainant or kissed her nipples. He viewed that conduct as the type of conduct that one would perform on a wife or girlfriend.

By its very nature such conduct is sexual, and any reasonable person would find that to be the case. [ 169 ] Here, the accused adamantly denied biting the right breast of the complainant. I have found that at the time of the sexual touching that the eyes of the complainant were closed. I likewise accept her characterization of her demeanour as being frozen at that time. I have viewed the photograph of the contusion located on her right breast. The contusion appears blurry and imprecise. Perhaps the accused did bite her.

However, I find the evidence to be inconclusive. [ 170 ] I am satisfied that the touching in this case was sexual in nature and that it involved the massaging of the breasts of the complainant and included the kissing of her nipples by the accused. [ 171 ] I find that the Crown has established beyond a reasonable doubt all of the essential elements of a sexual assault and I find the accused guilty accordingly. _________________________________ The Honourable Judge G.

Rideout Provincial Court of British Columbia CORRIGENDUM – Released December 31, 2013 At paragraph 167 of my judgment I characterized the inappropriate sexual conduct of the accused as "reckless behaviour" This was an inadvertent error. Accordingly, paragraph 167 is varied by removing the words "reckless behaviour" and in substitution inserting "wilful blindness". Paragraph 167 shall now read: [167] Accordingly, I find that the conduct of the accused amounted to both wilful blindness and a failure to take reasonable steps to ascertain that the complainant was consenting to the touching of her breasts.

CORRIGENDUM - Released March 23, 2015 In the Reasons for Judgment dated December 17, 2013, the following change has been made: At paragraph 136, the words “result of” should be replaced with the words “reasonable doubt”. The sentence should now read as follows: [136] Accordingly, I am satisfied beyond a reasonable doubt that the complainant did not in fact consent to the sexual touching by the accused and therefore the actus reus of sexual assault is established.