R. v. Reist, 2019 ONCJ 719

CITATION: R. v. Reist , 2019 ONCJ 719 DATE: August 6, 2019 Information No. 18-169 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. MICHAEL REIST REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY on AUGUST 6, 2019 at ORANGEVILLE, Ontario APPEARANCES : A. Heath Counsel for the Crown R. Allman Counsel for Michael Reist TUESDAY, AUGUST 6, 2019 PUGSLEY J. (Orally): Michael Reist faces a single charge of common assault. The defendant, a now retired teacher, has conducted an educational mentoring practice for many years.

As part of his counselling practice he advocates specific forms of physical contact with his young clients and teaches parents, on occasion, to apply his techniques. The complainant and his parents consented to many forms of physical touching by the defendant. However, the charge alleges a single

event where the defendant is alleged to have touched the complainant in a place that was not part of the consent. That is the alleged assault. The alleged assault is a common assault and no sexual aspect is engaged. The trial formally commenced in February of 2019. The defendant entered a plea of not guilty and a defence application with respect to the nature and extent of proposed good character evidence was discussed with a consensus being arrived at between the parties.

On April 26, 2019 the evidence on the trial proper commenced with evidence by the complainant, A.B., testifying using the witness friendly facility here at the courthouse. He also adopted and relied upon his police statement given when interviewed after the initial complaint. At the time of the statement on February 9 th , 2018, a couple of days after the alleged assault, the defendant was 11 years of age and he was 12 when he testified. A.B. testified that he had first seen the defendant when he was in grade two to help with problems he was having at school.

On February 7 th , 2018 he had a session with the defendant. During the session some of the touch techniques the witness had experienced previously were repeated. The defendant massaged A.B.’s feet over his socks. The defendant placed his hand over A.B.’s chest and told him not to let his worries go into his heart. Then the defendant’s hand touched one of his buttock cheeks over his pants. Touching his chest and his buttock felt weird to the witness. After the video A.B. explained that the chest touch had happened before and the foot massage was a regular treatment. The defendant had also touched his back.

The defendant gave the complainant a stone to take home to help him when he slept after he left the appointment. The stones were representative of courage, worries and so on, and he held his stone when it was time for him to go to bed. A.B. testified that he told his mother about the defendant touching his butt on the way home from the appointment in the car. He said that the defendant has touched his butt and it felt weird to him. They spoke in the car and then later at home. He spoke up because it felt weird that a grown man would touch a kid’s privates.

In cross-examination the witness was asked if the defendant rubbed both his feet or just one foot. He was not sure. He recalled when he gave his evidence in court that the defendant had also rubbed his back on the date of the incident and before that date as well. At first he said that he did not tell the officer or his family about the backrub and then he remembered telling them that before court. He said he told the Crown and two others during trial preparation, but then admitted that that might be wrong.

Counsel suggested that in total from grade 2 to 2018 the witness only had 5 appointments altogether and he agreed with that suggestion. On one or two times there had been a backrub. He also remembered when asked that the sessions also involved a massage of his hands and that before any of the contacts the defendant always asked if it was okay to touch, and he always agreed to the touch. The hand massages happened at every visit. When he gave his police statement he forgot to mention that touching. On the date of the alleged assault A.B. agreed that he had some trouble earlier in school.

There was a person there who bullied him and he told the defendant about that during his session. Also, he and his younger sister had issues with a lady at their after school daycare, and they also talked about how A.B.’s father sometimes was scary. He was anxious and upset about these events, and spoke to the defendant about them at this session. A.B. agreed that the defendant talked about how he wanted A.B. to be strong and had him stand up. He asked if he could rub his shoulder and A.B. said he could. The defendant told him he was a strong person, a capable person and a good person.

A.B. agreed that the defendant was going to try to help him get over these problems. He felt good that he had the help of the defendant. The witness agreed that the defendant had massaged his shoulders in the past and that the defendant’s message was consistently that he wanted A.B. to feel good about himself. When asked about the defendant touching his chest the witness eagerly agreed that the defendant moved his hand over his heart and said that he had a strong heart, and that his heart was a shield to stop the bad arrows, and keep harm away.

The defendant showed him that he could rub his hand over his heart to make that shield and that he used that technique after and thought it helped him. A.B. described where he saw the defendant at the defendant’s home office. His mom and dad and his sister were just outside the room during this session. He could hear them talking while he was with the defendant for the session. The witness agreed that the defendant asked permission to touch his feet, his hands and his shoulders, and he gave that permission.

He agreed that the defendant asked if it was okay to put his hand over A.B.’s heart and to think about having a shield there. A.B. did not know if the defendant asked if he could put his hand on A.B.’s back.

He told his mom and dad on the way home and they decided to call the police later on after his parents talked together. He did not talk about this only after he got home. He also told his parents that the defendant had rubbed his belly and then down to his butt. He did not say, “Chest”. He said, “His body.” He told the police officer about the chest, but not about the stomach. Then he said he did not really remember where he was touched by the defendant. The witness agreed that on the video he showed the police officer on his clothes that the chest was where he was touched on his front.

The witness chose a rock after each session from the rocks that the defendant had on display in his office. He picked the courage rock and held it in bed or when he went to school so he could be fearless and courageous. After the session his parents would go in and have a private talk with the defendant. He knew that when he was with the defendant his parents were just outside. A.B. agreed that the defendant told his parents that they could come in during his session at any time if they wanted.

A.B. agreed that on this occasion he was standing facing the defendant and that the defendant had one hand on his chest as a shield and the other on his back. The witness strongly disagreed with counsel’s suggestion that the defendant never touched his buttock. The routine was consistent during each session. First, he would stay out of the defendant’s office and his parents would talk to the defendant without him. Then they would leave and he and the defendant would have their own private session in the office. After that the parents and the defendant would meet again without him.

On this day the session was shorter than usual. He was only with the defendant 15 minutes instead of 30 to 40 minutes. His sister and his parents waited just on the other side of the door to the defendant’s office. On the second day of the trial the complainant’s mother, E.B., testified. She spoke of learning about the defendant’s counselling from attending a seminar where he spoke and from reading one of his books. She knew that he helped boys who were not doing well in school and that he was a retired teacher.

A.B. had school challenges from very early in his school career and she wanted to find someone that could help him. The defendant offered services to help A.B. and the parents navigate the school system. She believes that A.B.’s first introductory session was when he was seven or eight. Each session had the same structure. First, she and her husband would see the defendant to talk about how their son was doing. Then they would leave and A.B. would go in to talk on his own while they waited outside. A.B. would be alone with the defendant for 15 to 20 minutes. It varied.

After that A.B. would come out and play with the toys, and she and her husband would have another meeting with the defendant before they all left. The defendant would talk about things their son had raised and give his insight into what was happening, and his ideas on how to address the issues that their son had talked about. It was left up to her, usually, to

schedule a next visit by way of email. At first it was about once a year. They met as needed. The defendant gave tips on how to help A.B. with his worries and they followed his advice at home. Ms B. never received any material from the defendant about his techniques, only what the defendant told them about at the sessions. There was no paperwork with him. She was aware of the touch techniques the defendant told them about, how to rub A.B.’s hands and his feet to help him relax before he went to sleep. They authorized that touching and she herself had used that rubbing technique at home.

A.B.’s last session with the defendant was in February 2018. He was alone with the defendant maybe 15 or 20 minutes altogether. After he finished his session she and her husband had time by themselves with the defendant. They spoke about how A.B. was being bullied at school. The defendant recommended the hand and foot massages, and usually they left with the defendant’s note on what he suggested they or the school could do to help A.B. The defendant always gave their son a rock to take home with him. They did not talk about the issue at the session on the way home.

They were going to go out for dinner, but A.B. did not like where she proposed to go to eat, so they just went home. When she and A.B. were alone in the kitchen he said it was okay when the defendant touched his hands and feet, but he did not like it when the defendant touched his head or his bum. He showed her what he meant by his bottom. She tabled it until she could speak with her husband. After she did her husband called A.B. in and asked him what had happened, and he repeated what he told her about the touching of his head and his bottom.

She testified that they never gave the defendant permission to touch their son’s head or his bottom. After discussing the matter they decided to call the police. Ms B. agreed that during A.B.’s time with the defendant they were only a few steps away and could hear the defendant and A.B. talking in a muffled way. She was asked about her understanding about the defendant’s counselling techniques from her research before she first contacted him. She could not recall whether she had checked out his website or followed any of the links there. She went to his seminar and she read one of his books.

Her first email was supportive of the defendant’s thoughts on raising boys and the struggles boys had at

school. Later she learned that a cousin had been one of the defendant’s students at school. Ms B. agreed that her son had several issues and had seen professionals in the past without much success. She at first agreed that she had read the defendant’s article, “What is Mentoring?” but then could not recall if she had or not. She could not recall if the defendant spoke about touching and light massage as a technique that he used, what he called sensory processing.

She and her husband were at the defendant’s because they believed he had tools to help their unusual child become more comfortable and successful in school. She felt grateful to have found the defendant and he helped A.B. and them. After each appointment they felt that they were moving in a positive direction. She does not recall the last appointment being shorter than usual, nor being told about A.B. putting a shield over his heart. They did not hear about A.B.’s uncomfortable reaction to the last session until she spoke to her son about it at home at the kitchen table.

Her husband was initially hesitant about a male therapist and the defendant being the right sort of help for their son. He never said that the defendant was gay, but A.B. said the defendant had to be gay because he had touched his bottom. She agreed that the complainant wanted to return to see the defendant, but this was more to confront him, she believed. M.B., the complainant’s father, also testified. Ms B. essentially researched the defendant and spoke to him, and then they decided that the defendant could help their son.

At some point he learned that there were techniques used by the defendant, including hand touches and chest touching. The defendant showed them what he meant on A.B. and also on himself as well. They consented to the defendant using those methods, but no other touching. They were never asked to sign any papers. When they left after the last session A.B. was okay with the meeting and wanted to go again. When he heard what had happened later that night A.B. told him directly that he had been touched in a place that made him feel weird, his behind.

He was calm and rubbed his belly with one hand and his bottom with the other. Mr. B. described being very upset and he and his wife spoke, and they said they should go to the police. A.B. had never shown any reluctance to go to a session with the defendant before. In cross-examination Mr. B. agreed that rubbing the complainant’s chest was within their consensual touching and they were in fact encouraged to do that at home. The witness was vague on much of the defendant’s counselling of his son.

He said he had a gut feeling about the defendant from when he first met him that they should be careful and he wondered why he never saw female clients at the defendant’s office. He agreed that he knew about the hand rubs, foot rubs and chest rubs, but not any private areas. He saw no professional certificates on the defendant’s office walls. The defendant testified at the trial. He described having been a teacher at a high school for 30 years and that he retired in 2014. Around 2004 he started mentoring on the side and that grew into a full-time mentoring practice.

He stated that his motivation came after a young student had committed suicide after being bullied and another student was killed in a homicide. In particular, he became interested in how boys and girls learned differently, and in how parents could raise emotionally healthy boys. In A.B.’s case the bullying at school was his central focus, because the school was not seemingly doing anything about it. He learned that A.B. was also being bullied by his after school caregiver and that he found his dad scary at times. He said he was concerned about A.B. February 7 th , 2018 was a snowy day.

He had spoken at a seminar and returned to his home office. He had a couple of cancellations and then Ms B. asked if they could see him right away. He booked them in for mid-afternoon and they were the first appointment of the day. Each appointment slot is one hour. Mr. and Ms B. came in first and he saw them for 20 to 25 minutes. They discussed the bullying and A.B.’s reaction to the bullying. They described that A.B. had developed a habit of rubbing his nose and the defendant stated that this was a clear example of a sensory processing problem.

He had given them the background brochures on an earlier appointment so that they knew what he was referencing. He recommended

and demonstrated techniques that were helpful on refocusing A.B.’s senses, rubbing his back, his hands and his feet. He described to the court what sensory processing theory was and described some of the literature. He said these were highlighted in his handouts to clients. He described gentle rubbing and squeezing of A.B.’s out raised hands and showed how to do this at home. On the last session he also showed how to place a notional shield over A.B.’s heart.

A.B. was slow to process verbal instructions, but was responsive to visual and tactile ways to deal with the bullying, placing a hand over his heart and the other one over his lower back just above his belt. The defendant stated that this was consensual. Each time he performed a touch he explained what he was going to do and asked if it was okay. Only when the client agreed did he do that touch. The shield over A.B.’s heart was for a minute. He also placed his hands on A.B.’s shoulders as an image that he was a strong person and a good person.

Photos duplicating his described position were made Exhibit Four at the trial. The defendant testified that at no time did he touch the complainant on his bottom. When he was with A.B., as with all other clients, the door to his office is closed for privacy and confidentiality. The door is a regular household interior door. Other therapies engaged with A.B. on other occasions was art therapy, the same theme on each visit, but on the last visit there was no time for this and A.B. was disappointed that he could not do his drawing.

Looking at his drawings over the years showed considerable progress in the defendant’s view. His clients also play ping-pong in his office and he has LEGO for them to build with. The defendant explained the theory of having his clients each choose a representative stone to take home with them. A.B. chose a stone called courage to take home with him in this session. The defendant stated he has also mentored girls, but that male students have a harder time in the educational system and he takes on those who seek him out for help.

At the end of A.B.’s last session he reinforced to the parents the steps they could take regarding the bully at school, the after school provider and that Mr. B. may want to have a session alone for some coaching in how to parent A.B. He showed them what he had done that day while in with A.B., including how he placed his hand on his back and on his chest as a shield. The defendant was vigorously cross-examined as to his methods and his qualifications.

His claim that his materials were available on his website was challenged by the Crown’s production of past versions of his website, which appear to show that the material he claims was there was not at those times. The defendant was at a loss to explain and believed that the explanation of his methods of mentoring students had been there on the site and had been given to Ms B. In the defendant’s view A.B. had what he referred to as a sensory processing disorder.

He stated that he was qualified by his past as an educator and a special education teacher to draw on various disciplines to reach the techniques he used in his mentoring. He branded himself as a mentor, so it was clear that he was not holding himself out as a member of a more specialized regulated profession. The defendant agreed that he was the subject of a disciplinary proceeding by the Ontario College of Teachers related to his mentoring practice, although he stated that the suspension came after he had retired.

He was concerned that A.B. was anxious and stressed because of recent bullying and added his appointment on the date of the alleged offence because he had a cancellation. The defendant testified that he always sought consent for each time he touched a client specifically before touching him or her. It’s clear to parents and clients that he uses sensory practices with each client. He cannot be sure before his time with the client starts what techniques he may use during that session, but all techniques are used only after the client says okay.

There is a trust factor before a session that he will use the touch technique appropriate to that session. The parents are not in the room during the individual client sessions and the door is closed for privacy. When in the session with A.B. on February 7, 2018 he only used appropriate tactile strategies. He rubbed A.B.’s hands first and then his feet over his socks, and talked about the bullying. A.B. looked out the window to focus on the outdoor scene. He told A.B. he was strong

and could handle the bullying. He touched his shoulder muscles to demonstrate strength. He placed his right hand over A.B.’s heart and his left hand on his back and told him, with a circular motion over his chest, that he could form a shield to protect his heart from the mean things that bullies might say. The defendant said that the entire chest action took about a minute then they sat down and finished their talk, and A.B. left so he could meet with Ms and Mr. B. for the debrief. A.B. was frustrated that day because they did not have time for a ping-pong game.

The defendant was confident that A.B. would speak to him about what was bothering him, including his discomfort about some issues he had with his father. The defendant denied ever touching A.B. on his buttock. His left hand was on his back, as demonstrated in the photograph of the defendant where the hand approximates the small of the back. In re-examination the defendant questioned the reliability of the Crown’s deconstruction of his past web pages. In his appointment diary he had a note regarding his first visit with A.B. in October 2013 including the word, “Handouts”.

This meant that his material was discussed with the parents on the first visit. His book and all of his talks engage an explanation of sensory processing techniques. The defendant agreed that he had a complaint made about his mentoring to the Ontario College of Teachers and stated that he did not contest the matter at the hearing where he was representing himself. The Crown disputed the characterization of the Ontario College of Teachers proceeding and sought to have a further opportunity to cross-examine the defendant to put the reasons of that hearing to him.

A Crown motion to that end was dismissed at the end of the defence evidence for reasons given at that time. The defendant called four witnesses as to his general character in the community, a community defined as the community of those who used his mentoring services in the past. Each witness described how they had come to be the defendant’s clients for their child. Each described what they had been told about his techniques and how those techniques had helped their child. Each was aware of the College of Teachers proceeding and some had read the decision of that proceeding.

Doing so did not change their view of the defendant’s reputation in the community. As just stated, I did not permit the Crown to call rebuttal evidence. The Crown submits that the complainant’s evidence clearly demonstrates that the defendant touched him without his consent. The Crown submits that this touch amounts to an assault and that the defendant should be found guilty. The defendant points to inconsistencies in the complainant’s evidence and notes that the defendant testified and denied the assault alleged. It is submitted that the charge should be dismissed. The classic definition of

an act of assault is the intentional application of force without consent, see s. 265(1) of the Criminal Code . Common sense and the need to co-exist in society suggests, however, that not each application of force amounts to an assault. There are degrees of force that inform whether there has been an assault. Punching a stranger in the nose is clearly an assault. An awkward embrace of a bereaved person at a funeral may be unwanted and socially inept, but is hardly an assault in the context of the criminal law.

In other words, context is important and the same act can be characterized as an assault and not as an assault depending on how it happens. For example, a person leaving a pub is tapped on the shoulder from behind. They did not consent and force was applied to their shoulder.

Context one: The person behind says, “I do not like your sports team.” This sounds like the shoulder tap might be the prelude to an escalation and the tap itself was arguably an assault. The context helps inform the intent or mens rea . Same scenario, context two: The person behind says, “You forgot your cell phone.” Same action, but the context demonstrates no criminal assault. Again, the context helps inform the criminal intent.

Here much of the effort of the Crown and defence was directed to digging down into what touching there was by the defendant of A.B., and whether it was consented to or indeed required by the defendant’s expressed form of mentoring. A.B. and his parents agreed that some touching was discussed and explained, and indeed used at home by Ms B. Even the technique of touching A.B.’s chest to form a shield against bullying was conceded by some Crown evidence. The Crown theory, however, is focused on the complainant in that he in no way consented to being touched on his buttock over his clothes.

The defendant stated that he did not do so. Rather, he placed his hand on the complainant’s back to steady him while he formed the shield over his heart. He filed as an exhibit a photo showing how he purported to do this, a photo he states was taken before he knew the exact allegations made by the complainant. A.B. was adamant in his evidence that the touch was on his buttock. In stature, when he testified he was a slight boy and on the video taken a year before perhaps even slighter at the time.

The difference between where he says he was touched and where the defendant says he placed his hand is perhaps a hand width, more or less. On my assessment of that hand width lies the outcome of a criminal charge. Much of the Crown’s case was suggestive of a deep mistrust of the defendant’s counselling qualifications and the techniques he used. The implication was that the defendant was a charlatan. His touch of the complainant was a breach of trust of a young boy in his closed office.

Although the charge laid (quite rightly in my view) was not a sexual assault, the context of the case from the start of the investigation had unstated sexual overtones. If the complained of touch was to the elbow of A.B. the assault charge would never have been laid. An adult man and a young boy in private seemed to be an undercurrent here. All of the collateral evidence from A.B.’s parents and the defendant’s character witnesses pales before the key evidence here: What the complainant stated and what the defendant stated happened in that last session in his office.

Overlying that evidence is the fact that this is a criminal trial. In the criminal trial the Crown at all times bears the burden of proving the case against a defendant beyond a reasonable doubt. This is a deliberately higher standard than that applied to civil lawsuits. Our criminal justice system accepts that it is better to let the guilty walk free than to convict the innocent. When a defendant, as here, testifies and is subject to cross-examination the seminal case of R. v. W.D. applies to emphasize the criminal standard of proof in a special way.

If the defendant’s denial is believed then he must be acquitted. If it is disbelieved but raises a reasonable doubt as to his guilt he must also be acquitted. Even if his evidence is not believed and does not lead to a reasonable doubt the Crown at all times bears the burden of proving the assault beyond a reasonable doubt. The defendant’s submission points to what is characterized as several inconsistencies in A.B.’s evidence. I found none of these inconsistencies to be of much importance.

A.B. is and was a young witness and was younger when his video statement was made. Minor inconsistencies are not unexpected. I found A.B. to demonstrate considerable bravery when he testified. Youthful witnesses without his history of anxiety have done far worse than he did in presenting his evidence to the court. His parents should be justifiably proud of him. My concern was not so much A.B.’s inconsistencies as to his lack of memory - particularly in his video statement - of events that had then taken place only a couple of days before.

In other words, the accuracy of his recall of events was poor from the beginning and could hardly have been improved in the time that passed between then and the date when he testified at the trial. In cross-examination he was reminded and accepted events that matched the defendant’s evidence as to what had happened in the room during the session including the heart shield action. A.B.’s description afterwards to his mother was that it made him feel weird.

Not at all an unexpected nor inaccurate reaction of a person his age to the defendant’s sensory techniques here, whether they were applied as A.B. says or as the defendant himself described. The defendant also testified in a sure and believable fashion. This criminal trial is not an inquiry into the techniques he uses, nor his qualifications, although one would have expected someone who intends to use sensory techniques on a youthful clientele in private would have obtained express written consent for each technique used, rather than relying upon presumed oral and/or blanket consents.

As already stated, the kernel of the case is what happened in A.B.’s last session. The complainant is sure that the defendant’s touch was on his buttock over his pants. The defendant says he had his left hand in the small of the defendant’s back as he described the shield over his heart. A simple and accurate statement of the technique before it was used, including to A.B.’s parents, would have stopped this criminal prosecution before it started and avoided considerable anguish for everyone.

As the adult and as the mentor the defendant should have taken every step to prevent any misunderstanding before it happened and he is criticized today for not doing so. But this is not an inquiry into the defendant’s paperwork. It is a criminal trial and a poor place to seek resolution of such civil issues. My duty is to apply the evidence to the law. On the evidence here I found the complainant to be brave, sincere and credible in the context of his age and circumstances, but also unreliable as to his memory.

Even without the defendant’s evidence denying the assault I would have found it dangerous to convict on the complainant’s evidence here. The defendant’s denial of the act complained of is also credible and is certainly sufficient to create a reasonable doubt as to whether the assault took place. Further, I find that the Crown has not been able to demonstrate to the required criminal standard that the defendant at any time had the mens rea required to make out the offence. In the result I must therefore find the defendant not guilty of the charge. Thank you. ...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED.