The B.C. Supreme Court has ordered a new trial for a James Bay massage provider who was acquitted of two counts of sexual assault in December 2018.
John Heintzelman was acquitted after provincial court Judge Ted Gouge said he didn’t have enough information to assess the reliability of a witness with mental-health issues — even though two complainants gave strikingly similar evidence of their experiences during hot- stone massages four years apart.
Gouge was also concerned by a Victoria police Facebook post asking other victims to come forward. The notice named Heintzelman and James Bay Massage located in the 300-block of Kingston Street.
Justice Robert Johnston found Gouge erred by speculating about the impact of one complainant’s mental-health issues. Gouge also erred in his treatment of the impact of the Facebook post on the evidence.
“I am satisifed that the errors had a material bearing on both acquittals, and that verdicts would not necessarily have been the same if errors had not been made,” Johnston concluded in his reasons for judgment.
In his ruling, Gouge said police should not have included Heintzelman’s name or the address of his in-home massage studio.
“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.
The first client testified that she was referred to Heintzelman by a women’s centre for treatment of migraines from July through December 2013. On her last visit, Heintzelman told her to go into the bathroom and remove all her clothes.
When she returned naked, he told her to lie on her back on the massage table. She had no sheet to cover herself.
She testified that Heintzelman put warm stones under her back and took other warm stones in his hands and sexually assaulted her. She testified that she did not report the assault immediately because she has been diagnosed with schizophrenia and was taking anti-psychotic medication.
In May 2017, the second client purchased a gift certificate for a massage by Heintzelman at a silent auction. She visited his basement studio on the afternoon of July 2, 2017.
After some preliminary conversation, Heintzelman told her to remove all her clothes and lie on her back. She testified that he sexually assaulted her under the guise of a hot-stone massage.
The woman testified that she felt vulnerable and powerless. She returned home, told her husband what happened and reported the incident to police on July 6, 2017.
On Oct. 20, 2017, Victoria police posted their notice about Heintzelman, saying they believed there were other victims.
The first complainant saw the notice and called police that day. She gave a statement to police on Nov. 2, 2017.
During the trial, Heintzelman testified he did not touch either woman in a sexual fashion and remained fully dressed throughout the treatments. His wife testified that she was at home on July 2, 2017, sitting in the living room, immediately above the massage studio.
Crown prosecutor Paula Donnachie told the court the women gave similar accounts, and thus corroborated each other’s evidence.
But Gouge said that corroborative weight is reduced by his concerns about the one witness’s mental-health issues, and the Facebook post. Gouge said that after a careful consideration of all the evidence, he was unable to decide whom to believe.
Johnston allowed the Crown’s appeal, finding that there was no evidence to conclude that the first woman’s reliability was affected by her mental-health diagnosis or medication.
Johnston said it was an error of law for Gouge to conclude that the corroborative weight given to similar-fact evidence tended to be reduced because of some lingering doubt arising from her psychiatric condition and/or the medications.
“Why the trial judge felt it important to school the police force in how to draft a media release is not clear, nor is it clear why there might be an analogy between the impact of a media release on similar-fact evidence and dock identification,” said Johnston.
Identification was never an issue, nothing turned on where the assaults allegedly occurred, and there was no description of how the sexual assault happened, Johnston noted.