A James Bay massage provider is appealing a decision of the B.C. Supreme Court that allowed the Crown to appeal his acquittal on two counts of sexual assault.
In September, Justice Robert Johnston ordered a new trial for John Heintzelman, who pleaded not guilty to the sexual assault, during a six-day trial in December 2018.
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, in the 300-block of Kingston Street.
Johnston found the trial judge erred by speculating about the impact of one complainant’s mental-health issues.
The trial judge also erred in his treatment of the impact of the Facebook post on the evidence, he said.
“I am satisfied 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.
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. He said it was an error of law for the trial judge 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 use of medications.
On the question of the police Facebook post asking other victims to come forward, Johnston wrote: “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.”
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.
In the notice of appeal dated Oct. 2, Heintzelman argues that Johnston erred in allowing the Crown appeal. The trial judge believed Heintzelman’s evidence and was left with a reasonable doubt as to his guilt, so Heintzelman maintains that he is entitled to an acquittal. Yet the B.C. Supreme Court judge saw fit to order a new trial.
During the trial, 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.