Warning: Story contains graphic content
An unlicensed James Bay masseur has been acquitted of two counts of sexual assault after a judge 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 four years apart.
In his ruling, provincial court Judge Ted Gouge said he was concerned about a Victoria police Facebook post asking other victims to come forward. The notice named John Heintzelman and James Bay Massage 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, said Gouge.
“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 first patient 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.
Heintzelman put warm stones under her back and took other warm stones in his hands.
“He rubbed the stones up and down her body, including her breasts, labia and clitoris. He then removed his pants and continued to massage wearing only a pair of shorts,” she testified.
Heintzelman pinched her nipples very hard. Then he placed her hand on his shorts. He cupped her hand around his penis and rocked his hips, causing her to massage it, she testified.
The woman, who suffers from mental illness, testified that she felt paralyzed and confused, unable to speak or think.
The court heard that the patient has been diagnosed with schizophrenia and earlier, had visual and auditory hallucinations. However, during her treatments with Heintzelman, her police interview and her testimony at trial, she was taking anti-psychotic medication.
In May 2017, the second patient 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. He placed hot stones under her back and began to massage her legs. He spread her legs with his hand. When she resisted, he bent her knees to spread her legs wider apart, leaving her in a frog position, she testified.
He massaged her labia and stroked her pubic hair. He pinched her nipples very hard, she said. Heintzelman placed her cupped hand under his penis and moved her hand up and down to stroke it, she testified.
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.
Heintzelman was arrested on July 9 and released on bail with conditions to stop offering massage services.
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 same 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.
Gouge said both women presented as credible.
“There was nothing in their demeanour or in the presentation of their evidence which caused me to doubt their veracity or the accuracy of their recollection,” he said.
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.
The B.C. Prosecution Service has not decided whether to appeal the judgment, said Dan McLaughlin, communications counsel.
“The B.C. PS is studying the decision and reviewing all options. As you may be aware, decisions concerning whether to appeal are made following a complete review of the case,” he said.
Heintzelman was referred to in court as a massage therapist, but his name does not appear on the College of Massage Therapists of B.C.’s list of registered massage therapists. The college regulates the profession of massage therapy in the province.
