R. v. Newey, 2018 ONCJ 134

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 486(4) OF THE CRIMINAL CODE OF CANADA CITATION: R. v. Newey , 2018 ONCJ 134 DATE: February 9, 2018 Information No. 2811-998-17-25043-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ROBERT NEWEY P R O C E E D I N G S A T T R I A L BEFORE THE HONOURABLE JUSTICE M.S. BLOCK on February 9, 2018 at OSHAWA, Ontario APPEARANCES : T. Hewitt Counsel for the Crown A. Richter Counsel for Robert Newey FRIDAY, FEBRUARY 9, 2018 ...all recorded, but not required ...excerpt of proceedings

R E A S O N S F O R J U D G M E N T BLOCK, J : (Orally) Robert Newey is charged with the sexual assault of T.E. on December 11, 2016 and A.M. on September 23, 2016. The two women were clients of the Defendant who is a Registered Massage Therapist (RMT). The Crown called both Ms. E. and Ms. M. In addition, Technique Standards 15 and 16 from the College of Message Therapists of Ontario were admitted on consent for the truth of their contents as Exhibits 2 and Exhibit 3 respectively. Mr. Newey was the sole defence witness. Ms.

M. testified that on December 11, 2016 she attended the Hand and Stone Spa in Whitby for a 3:00 p.m. appointment. She had not previously been treated by the Defendant. She was an experienced massage consumer with bi-weekly massages for the previous ten years. She used massage to treat chronic pain. She was approximately 40 years of age. The Defendant and the witness had about a one-minute discussion about the impending treatment before it started. She said she probably referenced pain on the inside of the shoulder just above the armpit. The topic of breast massage was never referenced. Mr.

Newey exited to give Ms. M. time to undress to the extent of her personal comfort and lie down on the massage table. She undressed, but kept her underpants on. The massage was unremarkable for the first 45 minutes. Then Mr. Newey asked Ms. M. to turn over onto her back. She was then appropriately draped to cover her body, which is customary during massage treatment. The sheet covered her breasts. The Defendant stood behind Ms. M. He massaged the area over her sternum from above her breasts moving down between them. He was making a circular motion with his fingertips.

She felt fine about this part of the procedure. Mr. Newey then put both hands over her breasts. He touched the nipple, areola, and the rest of the breast tissue. This action lasted a few seconds. He then moved his hands between the breasts again, placed them on top of the breasts and then moved his hands to the side of the breast under the sheet, cupped them, pushed them upwards and then repeated the motion three times in all. No consent was sought at any time and no apology given for the contact. Ms. M. froze. She was upset, frightened and shocked. She said nothing at the time.

At the end of the session she told Mr. Newey that the area between her breasts was very painful because she wanted to inspire a response from him. He said nothing beyond inviting her to book another treatment. She reported the matter to the police after she became aware of the other complaint of this nature against Mr. Newey. She does not know and has never met the other complainant. Her evidence was essentially unchallenged in cross-examination. She agreed that there were no finger manipulation or massage motion in respect of the breast tissue.

T.E. attended the Hand and Stone Spa at 4:00 p.m. on December 11, 2016 for a relaxation massage.

She had used Mr. Newey's services the month before for the same kind of massage, without incident. She undressed to her underpants and she told the Court that she thought Mr. Newey came back into the room abruptly and without warning and with barely enough time to cover herself. This aspect of her evidence was disputed by the Defendant and I did not find it necessary to consider it in reaching judgment. There was no discussion about a breast massage and certainly no discussion of consent with Ms. E. The events played out in a remarkably similar way to the massage described by Ms. M.

During the last 10 to 15 minutes of the massage Ms. E. turned onto her back. The Defendant circled his hand on her breast bone (that is her sternum) and then moved his hand down between the breasts, then circled the breasts with his whole hands on them. He touched the nipples, the areola and the entire front aspect of the breasts. He did it a second time in a slower more deliberate manner. No manipulation and little pressure. He then repeated the action a third time. Ms. E. felt horrified and felt that she was in shock. He subsequently extended an invitation to Ms. E. on the Linked-In website.

Once again, the complainant's account was essentially unchallenged on cross-examination. Exhibit 2 in this proceeding was the Technique Standard 15 issued by the College of Massage Therapists of Ontario.

As I said previously, this document was entered on consent and for the truth of its contents and under the heading it reads "Conditions: Given that breast massage is requested or clinically indicated prior to treatment, and that the client has consented to breast massage Clinical Indicators concerning the Breast: • general drainage problems • pre/post menstrual pain • breast swelling and/or congestion • discomforts of pregnancy and/or lactation • blocked milk ducts (contraindicated if mastitis) • pre/post surgery including breast augmentation or reduction • symptomatic relief of pain • promotion of good quality scarring and relief of adhered/restrictive/painful scarring • common benign breast conditions • assistance with breast health • discomfort from cancer treatment • rehabilitation from cancer treatment Under the sub-head Standard: Quality / Technical & Interpersonal: • So that you do not touch the nipple and/or areola. • So that the breast tissue is uncovered only when it is being treated directly.

• So that breast massage is not performed or is modified if a contraindication to this treatment exists". Under Technique Standard 16: (Exhibit 3 in this proceeding) "Perform Massage to the Chest Wall Conditions: Given that massage to structures of the chest wall has been requested or clinically indicated prior to treatment, and that the client has consented to the treatment plan.

Clinical Indicators concerning chest wall musculature, including but not limited to: • post-mastectomy • rehabilitation after cancer treatment • chronic respiratory conditions • relief of muscular discomfort and/or pain • supportive treatment of postural rebalancing • scarring of the tissue of the chest wall" The importance of these two exhibits in this proceeding is that it is clear from Mr.

Newey's evidence that he understood and was familiar with the training and the concepts that are referenced in those two Exhibits and that he appeared to be extremely knowledgeable with the requirement for explicit, indeed written, consent to breast massage. He also agreed that he sought no such consent. Mr. Newey also testified that he is in his mid-fifties and he was certified as a Registered Massage Therapist in 2014. On his own estimation he has treated over 2000 clients. Eighty percent of them were female. He has no criminal record.

He had no recall of the M. massage, but conceded that he could not challenge her account in cross-examination. He did say in-chief that there was no breast massage involved with Ms. M. The apparent contradiction was never resolved. With Ms. E. he said that it was his intention to work her shoulders, deltoid and pectoral muscles down into the sternum. He intended to reduce stress and enhance circulation by working the sternum with his fingertips and palms, circle the breast without touching it and then palpitate or manipulate the pectoral muscles to the side.

On the first attempt he realized that he had touched the bottom of Ms. E.'s breasts with his fingertips. He told the Court that he was very embarrassed but said nothing and saw no reaction. Despite his mortification he continued the technique two more times to "finish the area off". He felt his fingertips touch her breast on each occasion. He told the Court he had no sexual intent. Though very embarrassed he did not realize anything inappropriate had taken place, was his comment in-chief. Under cross-examination, he admitted that breast massage requires consent.

He was aware that he was in complete control of the setting with a vulnerable and largely unclad woman. He knew of the heightened area of concern with treatment in this area and, as I indicated, he was familiar with his Colleges' instructions. He was trained in the necessity of procuring consent. Although the contact was at least initially accidental, he did not chart it in his notes. He did not apologize. He did not report to anyone about the incident. He was aware that the client felt violated but his embarrassment prevented him from raising the matter with her.

In fact, he proceeded after the initial alleged accidental contact with a second and third breast circling despite his awareness of the problem. He thought finishing the act (that is the therapeutic manipulation) was more important than causing more embarrassment. He did look at Ms. E. to see if there was a reaction and saw none. The Crown brought a similar fact/discreditable contact application in respect of the counts. This was count to count application. The Crown seeks admission of the evidence of the different counts to bolster the credibility of the accounts of the complainants.

The complaints are remarkably similar and in substance, as I have indicated, unchallenged. There is no suggestion of collusion. In fact the absence of collusion is conceded by the defence. In my view the different complaints are admissible count to count. To both confirm an account of the events different from that of the Defendant, but also to rebut the proposition that the first contact with Ms. E.’s breast was accidental. The test is, of course, that the need or potential use of the evidence is established to a balance of probabilities.

In this case I suspect if I were required to find it beyond a reasonable doubt I would do so. Mr. Newey asserts through counsel that his actions do not constitute sexual assaults because they were intended for a therapeutic purpose. The evidence before me is not of six discreet acts in which two women have their breasts brushed while the therapist is intent on messaging adjacent structures. The two complainants describe a full hand contacting a hand sized portion of the central area of the breast, each on multiple occasions. It matters not that Mr.

Newey did not apparently attempt manipulation of an erotic nature. He deliberately acted in a manner absolutely inconsistent with the proffered and alleged therapeutic reasons which form the central part of his defence. There was simply no therapeutic reason for him to do what he did. The complainants were not only unchallenged on the substance of their evidence, their evidence is internally consistent, clearly given and they were appropriately responsive to both examination in-chief and cross-examination. As must be clear at this point I accept the evidence of both complainants. I reject Mr.

Newey's evidence without reservation. His actions towards Ms. M. and Ms. E. were deliberate. He sought no consent though he knew that was required. In the eyes of any rational observer his actions, viewed in all of the circumstances, must have had a carnal or sexual content. This is the only possible result of the evidence in my view. So Mr. Newey you stand convicted of both counts before me.