The Crown is appealing the acquittal of James Bay masseur John Heintzelman on two counts of sexual assault.
The notice of appeal dated Jan. 16 says the judgment by provincial court Judge Ted Gouge was unreasonable and not supported by the evidence.
The Crown will ask the B.C. Supreme Court to set aside the acquittal and order a new trial.
Public interest requires an appeal, said Dan McLaughlin, communications counsel for the B.C. Prosecution Service. The appeal will be heard during the week of June 17.
Heintzelman was acquitted on Dec. 20 after Gouge said he didn’t know whom to believe.
Two complainants gave similar evidence of their experiences four years apart.
Heintzelman denied he had touched either woman in a sexual manner.
In his ruling, Gouge said he didn’t have enough information to assess the reliability of the first complainant, who has mental-health issues.
He also said he was concerned about a Victoria police Facebook post asking other victims to come forward. The notice named Heintzelman and said his business, James Bay Massage, was located in the 300 block of Kingston Street.
Police should not have included Heintzelman’s name or the address of his in-home massage studio, Gouge said.
“Generally, anything which tends to convey to a witness that a person is suspected by the police or is charged with the offence has the effect of reducing or destroying the value of the identification evidence,” Gouge said, quoting an Appeal Court judge in another case.
Police should be conscious that publishing a notice that names a suspect might prejudice his right to a fair trial and damage his reputation and livelihood if the allegation is unfounded, said the judge.
Gouge said that after a careful consideration of all the evidence, he was unable to decide whom to believe.
The Crown is appealing on the grounds that Gouge erred in assessing the reliability of the first complainant and by requiring corroborating evidence about the nature and extent of her mental illness.
Gouge erred in assessing the credibility of the second complainant and in his assessment of similar-fact evidence, the notice says.
Victoria police have said they are unable to comment on the matter because it is before the courts.
