The accused, a masseur, was charged with sexual assault arising from a massage session with a client during which his hands entered the complainant’s clothing while massaging near a cesarean scar and hip flexor area.
The Crown alleged that touching just above the complainant’s pubic bone constituted sexual assault or an attempt to reach her genitals.
Applying the objective test for sexual assault from R. v. Chase, the court held the Crown failed to prove beyond a reasonable doubt that the touching occurred in circumstances of a sexual nature or that it was intentional rather than accidental during therapeutic massage.
The court also found insufficient proof that the accused knew or was reckless as to any lack of consent for purposes of simple assault in the context of a massage therapy relationship.
The accused was acquitted of both sexual assault and simple assault.
