M. Schwartzentruber

The accused, a massage therapist, was charged with two counts of sexual assault involving two different clients.

The court first ruled that the accused's videotaped statement to police upon arrest was admissible to show his reaction and state of mind, but not for the truth of its contents.

Applying the W.(D.) framework to assess credibility, the court found both complainants credible and noted striking similarities in their accounts.

However, the court was left with a reasonable doubt regarding the first complainant's allegation due to frailties in her evidence and general corroboration from the accused's police statement.

The court found the accused guilty of sexually assaulting the second complainant, rejecting his general denial and finding her evidence compelling and reliable.

The Crown brought an application to admit similar fact evidence across two counts of sexual assault alleged by two separate complainants against a massage therapist.

The accused opposed the application, arguing that the second complainant's evidence was unintentionally tainted by media reports of the first complaint, and that the accounts were too dissimilar.

The court found no evidence of actual or unintentional collusion.

Applying the test for similar fact evidence, the court held that the two accounts shared significant similarities, including the specific nature of the inappropriate touching during the massages.

The court concluded that the probative value of the evidence in assessing credibility and rebutting defences outweighed any potential prejudice, and granted the application.