WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2024 12 02 COURT FILE No.: Windsor 21-11730

BETWEEN:

HIS MAJESTY THE KING

— AND —

JEFFREY YOUNG

Before Justice S. G. Pratt

Heard on 6-9, 12-14, 20 February, 25-28 March, 1, 8 August, 8 November 2024 Ruling released on 2 December 2024

Counsel: Elizabeth Brown.................................................................................. Counsel for the Crown Julie Santarossa............................................................................ Counsel for the Defendant

RULING ON SIMILAR FACT APPLICATION

Pratt J.:

[1] In the course of this sexual assault trial, the Crown has brought an application to admit similar fact evidence. It seeks to use the evidence of each complainant in support of the evidence of every other complainant. In the Crown’s submission, the allegations all bear sufficient similarities that they could not be the product of coincidence but rather that they show a pattern of conduct and reveal the Defendant’s alleged modus operandi. For that reason, the probative value of using the evidence in this way outweighs the potential prejudice. Counsel for the Defendant opposes the application and argues the evidence is not really all that similar, beyond generic commonalities that don’t offer much probative value. Counsel also warns against the possibility of collusion between the witnesses.

[2] These reasons explain why I agree with the Crown. The application will be granted on the terms that follow.

The Law

The contest over the admissibility of similar fact evidence is all about inferences, i.e., when do they arise? What are they intended to prove? By what process of reasoning do they prove it? How strong is the proof they provide? When are they so unfair as to be excluded on the grounds of judicial policy and the presumption of innocence? The answers to these questions have proven so controversial as to create what Lord Hailsham described as a "pitted battlefield": Director of Public Prosecutions v. Boardman, [1975] A.C. 421 (H.L.), at p. 445.

[3] That quotation is from Justice Binnie, writing for the Supreme Court of Canada in R. v. Handy 2002 SCC 56, [2002] 2 S.C.R. 908 at paragraph 27. Lord Hailsham’s description of this area of law as a “pitted battlefield” is apt. It is filled with opportunities for missteps and error. Many a judge have turned a metaphorical ankle trying to navigate it.

[4] It is important, therefore, to begin with first principles. All relevant evidence in a trial should be admitted. A trial, whether criminal or civil is, at its core, a truth-seeking exercise (see: R. v. Samaniego 2022 SCC 9, [2022] S.C.J. No. 9; Evans v. Jenkins [2003] O.J. No. 5796 (S.C.J.); R. v. A.R. [2023] O.J. No. 3329 (C.J.)).

[5] Justice McLachlin (as she then was) said the following at paragraph 37 of R. v. Seaboyer [199] 2 S.C.R. 577:

It is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues. This goal is reflected in the basic tenet of relevance which underlies all our rules of evidence: see Morris v. The Queen, [1983] 2 S.C.R. 190, and R. v. Corbett, [1988] 1 S.C.R. 670. In general, nothing is to be received which is not logically probative of some matter requiring to be proved and everything which is probative should be received, unless its exclusion can be justified on some other ground. A law which prevents the trier of fact from getting at the truth by excluding relevant evidence in the absence of a clear ground of policy or law justifying the exclusion runs afoul of our fundamental conceptions of justice and what constitutes a fair trial.

[6] This does not, however, mean there are no limitations on what evidence is admissible. Even relevant evidence can be excluded if the prejudice it would cause outweighs its probative value. That prejudice can be personal to a defendant or more broadly to the administration of justice. This determination can be critical to ensuring a fair trial, as the admission of prejudicial evidence with comparatively little probative value risks perverting the course of the trial and creating a miscarriage of justice. A trial judge’s discretion on this point will be accorded deference on appeal (see: R. v. Schneider 2022 SCC 34, [2022] S.C.J. No. 34).

[7] Turning to the question of similar fact evidence, I begin by acknowledging it is presumptively inadmissible, whether across counts in an information or related to uncharged conduct. There are multiple reasons for this presumption.

[8] The first reason is that using evidence from one allegation (whether charged or not) as evidence of another allegation risks the trier of fact coming to the conclusion that the defendant is simply a bad person. A general propensity to commit criminal acts is a defect of character, but it cannot be a basis for conviction. In Handy, Justice Binnie refers to this as moral prejudice. At paragraph 71, His Honour stated:

This Court has frequently gone out of its way to emphasize that the general disposition of the accused does not qualify as "an issue in question". As stated, the similar fact evidence may be admissible if, but only if, it goes beyond showing general propensity (moral prejudice) and is more probative than prejudicial in relation to an issue in the crime now charged. I accept as correct the dictum of Lord Goddard C.J. in R. v. Sims, [1946] 1 All E.R. 697 (C.C.A.), at p. 700, that "[e]vidence is not to be excluded merely because it tends to show the accused to be of a bad disposition, but only if it shows nothing more", provided the "something more" is taken to refer to an excess of probative value over prejudice.

[9] His Honour went on to say in the following paragraph that the Crown cannot “ease its burden by stigmatizing the accused as a bad person”. I pause to note that in the present case, the Crown has not suggested such a use for the similar fact evidence. Rather, it has been clear in how it argues the evidence should be used. Nonetheless, the possibility of moral prejudice remains an obstacle to admission. The Crown’s ability to overcome that obstacle will depend on the balance I strike between probity and prejudice.

[10] The second reason this evidence is presumptively inadmissible is referred to by Justice Binnie as reasoning prejudice. It involves the potential to confuse the trier of fact and distract it from the issues to be decided. It also includes the potential for unnecessarily lengthening the proceedings. On the issue of distraction, His Honour quoted Justice McLachlin (again as she then was) at paragraph 145 of Handy:

Distraction can take different forms. In R. v. D. (L.E.) (1987), 20 B.C.L.R. (2d) 384 (C.A.), McLachlin J.A. (as she then was) observed at p. 399 that the similar facts may induce

in the minds of the jury sentiments of revulsion and condemnation which might well deflect them from the rational, dispassionate analysis upon which the criminal process should rest.

[11] The dangers of reasoning prejudice, then, can be the unnecessary prolonging of the proceeding, and the compounding effect of multiple allegations tainting the trier of fact’s conclusions. This compounding effect was noted by the Supreme Court of Canada in the case of R. v. Shearing 2002 SCC 58 at paragraph 68.

[12] This is, however, less of a concern in a trial heard by a judge sitting alone. Justice Zarnett, of the Court of Appeal for Ontario noted the following at paragraph 38 of R. v. Tsigirlash 2019 ONCA 650, [2019] O.J. No. 4112:

To be sure, some of the factors in the analysis relevant to an assessment of prejudice may have an attenuated influence in cases where the similar acts are restricted to other counts in a multi-count indictment, especially where the case is tried by a judge sitting alone. In such cases, the risks of moral prejudice and reasoning prejudice are significantly diminished: MacCormack, at paras. 56, 68-69; T.B., at paras. 26-28, 31. Excluding the similar fact evidence will not prevent the judge from hearing it, and the concern that a judge will convict on the basis of the accused's bad character is much less significant than the concern that a jury will do so: T.B., at para. 33. Further, the only time added to the trial is that "needed for the argument on admissibility at the end": MacCormack, at para. 69.

[13] To overcome the dangers of moral and reasoning prejudice, the Crown must show the probative value of the evidence outweighs the potential for prejudice. It must persuade the Court on a balance of probabilities (see: Handy at par. 101).

What is “similar fact” evidence?

[14] At the core of the application is the Crown’s assertion that the alleged conduct of the Defendant is fundamentally similar across multiple complainants. His actions reveal a pattern of conduct it says I can use to determine the veracity of each individual allegation and the credibility of each complainant.

[15] In the present case, the issue in question sought to be proved by the Crown is not the identity of the perpetrator, but the actus reus of the offences. Identity is not in issue in this case as the Defendant was known to all complainants. As stated at paragraph 78 of Handy:

The issue in the present case is not identification but the actus reus of the offence. The point is not that the degree of similarity in such a case must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency in relation to the desired inferences will therefore not be the same. As Grange J.A. correctly pointed out 20 years ago in R. v. Carpenter (1982), 142 D.L.R. (3d) 237 (Ont. C.A.), at p. 244:

The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence.

[16] Justice Binnie went further at paragraph 91:

References to "calling cards" or "signatures" or "hallmarks" or "fingerprints" similarly describe propensity at the admissible end of the spectrum precisely because the pattern of circumstances in which an accused is disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact. The issue at that stage is no longer "pure" propensity or "general disposition" but repeated conduct in a particular and highly specific type of situation. At that point, the evidence of similar facts provides a compelling inference that may fill a remaining gap in the jigsaw puzzle of proof, depending on the view ultimately taken (in this case) by the jury. (Emphasis added)

[17] Here, the Crown seeks to use the similar fact evidence to rebut any claim of accident or of justification for the conduct based on the Defendant’s training as a Registered Massage Therapist. I must consider the evidence of each complainant to determine if their accounts are sufficiently similar that the possibility of coincidence is precluded (see: R. v. Perrier 2004 SCC 56).

[18] The Crown also seeks to use the similar fact evidence of each complainant to buttress the credibility of the other complainants. This is a permitted use of similar fact evidence in a proper case (see: R. v. B. (C.R.), [1990] 1 S.C.R. 717).

[19] It is also common ground between the parties that this application is not an all-or-nothing proposition. That is, I do not need to find all alleged acts across all complainants are sufficiently similar to each other before granting the application. I could grant the application as it relates to some complainants but not others. There is nothing preventing me from engaging in individual analyses of the complainants’ evidence. To the contrary, that kind of analysis is precisely what is required.

[20] Where the alleged similar fact conduct is not captured by a count in the information, additional considerations must apply. As Justice Zarnett stated at paragraph 23 and onward of Tsigirlash, supra:

The general rule is that evidence of the accused's discreditable conduct is inadmissible, unless that conduct is the subject-matter of the charge in question: Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018), at [section]11.1. This general rule operates both as a pure rule of admissibility and as a rule of restricted admissibility. When the proposed evidence relates to extrinsic misconduct -- discreditable conduct for which the accused is not charged -- the rule determines whether that evidence will be heard. When the request is to use evidence already admissible on one count to prove a separate count, the rule operates as a rule of restricted admissibility: the already-admitted evidence can be used only on the count to which it relates. In other words, evidence against an accused on one count of an indictment may not be used to prove the guilt of the accused on another count, unless the counts arise out of the same events: David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 88

The general inadmissibility rule will not apply where the evidence of discreditable conduct meets the test for similar fact evidence. But, importantly, there are a number of steps that must occur, and a number of factors that must be considered, before the similar fact evidence test is met and evidence on one count can be applied to others or evidence of extrinsic misconduct can be admitted at all.

These steps and factors are critical because similar fact evidence is presumptively inadmissible, whether the evidence of similar acts is evidence of other counts in the indictment or is evidence of extrinsic misconduct: R. v. MacCormack, 2009 ONCA 72, at para. 48.

[21] The present application involves evidence of both charged and uncharged conduct. Regarding the charged conduct, if I dismiss the similar fact application, that evidence remains part of the trial record but is only admissible to prove the associated counts. Regarding the uncharged conduct, if I dismiss the similar fact application, that evidence will be entirely inadmissible at trial.

[22] Finally, and as part of the overall weighing of probative value and prejudice, the law requires me to consider if any offered similarities among the complainants’ accounts may be the result of collusion. It is important that a witness’s evidence be their own. A witness should only ever testify to what they experienced. If witnesses come together prior to testifying in order to, if you will, get their stories straight, the truth-seeking function of a trial will be frustrated. If the evidence discloses distinctive similarities, but those similarities are the result of planning and concoction, the foundation on which admissibility is sought will be destroyed (see: Handy at par. 104). Collusion undermines any suggestion that the conduct is more than coincidental. As Justice Binnie said at paragraph 106 of Handy:

In my view, the trial judge cannot assess "the objective improbability of coincidence" without addressing the issue of whether the apparent "coincidence" is in fact the product of collusion.

[23] Indeed, collusion not only undermines a suggestion that the conduct is more than coincidental, but it also undermines the fundamental credibility and reliability of the witnesses overall.

[24] The mere opportunity to collude will not generally be sufficient to deny admission of the evidence. There must be something more to cause the court to be concerned. In Handy, for example, that something more was the “whiff of profit” observed by Justice Binnie. There, the defendant’s ex-wife told the complainant about the possibility for a financial windfall if she accused him of abusing her as the ex-wife had done. In that case, it wasn’t just the contact between the ex-wife and the complainant that was the issue; it was the financial motive for concocting a similar story that was troubling.

[25] Collusion can also be unintentional, as when an allegation is reported in the media and there is concern that other complainants are affected by those reports.

[26] If an air of reality is shown to the issue of collusion, the Crown must prove on a balance of probabilities that the proffered evidence is not the result of it. If the Crown is unable to do so, the evidence is incapable of being admitted as similar fact (see: Handy at par. 112).

The Evidence

[27] It is necessary to review the allegations of each witness to determine what similarities, if any, exist across their accounts.

J.S.

[28] Ms. J.S. is the Defendant’s neighbour. She was also a massage client of his for several years, starting around 2014 and ending in 2021.

[29] J.S. has a long history in athletics. She is a former Canadian champion boxer and was a member of the national team. At the time of her dealings with the Defendant, she was training as a marathon runner with the goal of qualifying for the Boston Marathon.

[30] Like many long-distance runners, J.S. encountered injuries in her training. She testified that she first spoke to the Defendant when she was in her backyard swimming pool. She was running in the water, attempting to maintain her fitness while dealing with a calf injury. The Defendant called out to her over their shared fence, asking what she was doing. She told him and he offered to help her. At first she declined, but they eventually agreed he would try to assist her. For her first appointment, he came to her house. Afterward, she felt significant relief. She kept seeing him, and within a few treatments she was back to running.

[31] Massages continued for several years. J.S. would attend twice a month, first at her home, then at Mifflin Chiropractic, where the Defendant worked, then once at a different clinic, and then at his home. She would tell him what areas of her body needed work and he would address them. She recalled paying $150 for each two-hour massage. She used her benefits from her employment, and she recalled signing a consent form at Mifflin regarding the massaging of sensitive areas. She recalled going to Mifflin Chiropractic from 2014-2020 but said the Defendant began working out of his home before then end of 2020. At that point, she was paying a total of $50 for two two-hour massages per month. She never signed any consents after the initial forms at Mifflin Chiropractic.

[32] She had no complaint with any massages she received from the Defendant for the first several years of their professional relationship. To the contrary, she felt very satisfied with his skill in treating her various injuries. In addition, as neighbours, they would communicate regularly by text message.

[33] Her view of his massages changed in 2021.

[34] Previously, she had always kept her underwear on during massages. On a day in May or June of 2021, when she was seeing the Defendant at his home, she testified that she forgot and took them off when undressing before a massage. The Defendant had left the room to let her get undressed and when he returned, she was already lying on the table. She told him she had mistakenly taken off her underwear and asked him to leave so she could put them back on. Rather than exit, he suggested she keep them off as it would make massaging easier. She agreed. That massage, she said, was unremarkable. From that point, however, “things took a turn”.

[35] A frequent area of injury for J.S. was her groin. Specifically, her hip adductors, abductors, and flexors were often treated by the Defendant. For a long time, she had no issue with either how she was draped or covered during the massages, nor with the nature of the physical touching.

[36] After the first massage without underwear, she continued to see the Defendant. She continued to remove her underwear for appointments as she agreed it was easier for the Defendant to massage her without them. On two or three occasions where she was not wearing underwear, she alleges the Defendant touched her improperly.

[37] The touches took place when she was lying on her stomach. The Defendant was massaging the back of her leg. She felt his finger touch her vagina. She said each touch was brief, only about a second, but that it made her fearful and want to rationalize what had happened. She was concerned he may try to penetrate her with his finger. As I said, she testified to this happening on two or three different visits to the Defendant. Throughout, she was trying not to assume the worst, and as she said, to brush it off. She said these touches happened between May and July 2021.

[38] She also testified to changes in how she was draped by the Defendant during this time. At the time of the May – July massages, J.S. would be nude during her treatments. In years past, the Defendant would cover her with sheets or towels, and generally only uncover the body part he was working on. In this timeframe, however, more of her body would be left uncovered. She spoke of one massage where her upper body was covered but both her legs were exposed. The Defendant only put a small washcloth over her vagina. She estimated the size of the washcloth to be about 6” square. Her legs were bent at 45 degrees with her feet flat on the table. The Defendant massaged her legs vigorously, leading the washcloth to move around as he did. This made her very uncomfortable. She could feel air on her vagina, which told her she was uncovered.

[39] J.S. spoke of another incident, again from May – July, where she was lying on her back. She said the Defendant climbed onto the massage table, with both his knees on her right side. He put his hands around her hips and lifted her off the table. He thrusted her up and down with his hands for almost a minute. She didn’t know why he was doing this. She guessed it was akin to a chiropractic treatment. She was asked if she was suffering from any new injuries at the time of this incident and testified that in fact she did not have any injuries at that point. This massage, she said, was simply for maintenance, not for the treatment of a specific issue.

[40] On 1 July, another incident took place. She was lying on her stomach. The Defendant was massaging her left leg. She said he circled his arms around her leg and held his hands together under it. He then moved in a see-saw motion and rubbed her vagina. Within 2-3 seconds, she raised her hips off the table and said, “whoa, whoa, way too close”. She said it took a second for him to release his hands, but he did. He apologized and completed the massage. This event left her feeling rattled and shaken.

[41] She also testified to other times when the Defendant would be massaging her leg and his hand would go near her vagina. He would leave his hand near her groin, with his index finger in the crease between her leg and genital area. He wouldn’t move it, but instead would continue his conversation with her while his hand rested there. She said his hand would remain there for “probably ten seconds” while he talked to her. Though he didn’t touch her vagina on these occasions, the act of leaving his hand there for so long made her feel awkward and uncomfortable. She testified that he never touched her like that in the years of massages she had until she stopped wearing underwear.

[42] Finally, J.S. testified about an incident from 6 July. Following the incident on 1 July, she began wearing underwear during the massages again. On that occasion, she was lying on her back. The Defendant was massaging her hip flexors, which go beyond the hip area into the abdomen. Her lower body was covered by a sheet while her upper body was covered by a towel. The only exposed area was her abdomen. He was massaging her hip flexors when, she said, he suddenly pulled the towel off her chest and dropped it on the floor. This exposed her breasts. She immediately sat up and covered herself with her hands. She pulled the sheet that had been on her legs up to her neck. She said he finished the massage with the sheet covering up to her neck.

[43] When she left, she said he made an unusual comment. He asked if she had to go home and feed her baby. She surmised this was because he’d seen her breasts. She was breast-feeding at the time, and they were larger than usual. The comment offended her.

[44] That was the last time she saw the Defendant for a massage. She tried to put him off without explaining why but eventually told him why she no longer wanted him to be her masseur. In the time following her departure, she said he came to her and gave her fresh produce. She said he told her half his life ended when he stopped massaging her. She said he had tears in his eyes. When she told him she didn’t have the money to continue seeing him, he offered to loan her the money. He asked if he could be her posture specialist or foot specialist instead. She declined. She testified that when she did tell him about the inappropriate touching and in particular his rubbing of her vagina, he said, “I’m sorry, it was very selfish of me.”

[45] The relevant factors related to J.S.’s contact with the Defendant are as follows:

(1) She was an athlete who needed treatment for injuries; (2) She developed a specific wish to see the Defendant in particular as he was helping her achieve her goal of running marathons; (3) He suggested she not wear underwear during her massages; (4) Once she stopped wearing underwear, inappropriate conduct began; (5) He touched her vagina with his finger on multiple occasions, and rubbed it with his hand on one occasion; (6) He did not cover her properly when massaging her, covering her vagina with only a small washcloth; (7) He exposed her breasts during a massage; and (8) He made what she took to be an inappropriate comment after seeing her breasts.

A.R.

[46] Ms. A.R. saw the Defendant professionally for less than a year, from 2014 – 2015. She was referred to him by co-workers at her place of employment. She’d never been to a registered massage therapist before seeing the Defendant. She saw him because of some neurological issues she’d been having, like numbness and pain in her back and legs.

[47] Regarding her clothing during massages, A.R. said the Defendant first told her to remove her shirt and that massaging would be easier if she wasn’t wearing pants. At first, she would remove her shirt and bra but wear pants like tights. In her words, that “progressed” to her eventually not wearing anything. She would instead be covered with a small towel. She testified that when she would lie on her stomach, she would have only a small towel about the size of a piece of printer paper covering her buttocks.

[48] She said the Defendant recommended that he massage her breasts to assist in what he termed “lymphatic drainage” and to address toxins. She said she accepted his professional opinion and agreed. He would massage her breasts and chest area. She did not recall if initially both breasts were exposed at once or only the breast being massaged at the time, but said ultimately both were exposed at the same time. She said they would be exposed for the duration of the massage, which was 30 – 90 minutes. He would stand behind her and massage very close to the nipple. As she said, “pretty much my breast”. While she had no specific memory of him ever massaging her nipples, she did recall times where he would stand behind her and massage both breasts at once.

[49] She was asked about him massaging her particular areas of concern, such as her arms or legs. She testified that he would always do a full-body massage and that there were occasions when he would run out of time and not be able to get to the areas she had mentioned.

[50] On her last visit to the Defendant, she recalled lying on her back. He was massaging her abdomen when, with a finger, he began rubbing her clitoris. She said this went on long enough for her to realize what was happening and that he’d crossed a boundary. She left and never booked another massage or communicated with him again. She did not return his texts and blocked his number. He tried to contact her over social media using multiple accounts, both during the period of her massages and afterwards.

[51] She also mentioned him inviting her to a local restaurant for vegan food, and asking her to stay after an evening massage to chat and eat with him. She felt these were odd suggestions that also crossed boundaries.

[52] The relevant factors related to A.R.’s contact with the Defendant are as follows:

(1) She was a patient with a specific medical complaint (neurological issues); (2) He suggested she not wear any clothing, including underwear, during her massages; (3) He frequently massaged areas she did not request; (4) He did not cover her properly during massages; (5) On one occasion, he touched and rubbed her clitoris with his finger; and (6) He exposed her breasts during massages.

A.L.

[53] Ms. A.L. was referred to the Defendant by a neighbour. She had been involved in a motor vehicle collision in 2013 and suffered injury to her neck and upper back. In total, she saw the Defendant for approximately six months in the spring and summer of 2015, typically once per month. She paid for the massages through her wife’s work benefits.

[54] While she was primarily interested in getting her back and neck massaged, A.L. was an athlete who had other areas of her body that also needed treatment from time to time. She testified that her athletic pursuits were something she and the Defendant hit it off about, and that they had easy conversations.

[55] Over the course of their visits, the Defendant told her that athletes often developed tight rib cages from breathing heavily. He told her he could massage the muscles of her rib cage to help open them up. While he could do this partially from the back, he would also need to massage her chest and breasts. She said that during these massages, her upper body would be completely exposed. Her breasts would be massaged and, she said, “kneaded”. She soon determined in her mind that this was not appropriate. It did not feel to her like a tight muscle was being treated as the massage did not follow the line of the ribs but was a circular motion on breast tissue. On the issue of consent, A.L. said she never signed any consent to have her breasts massaged but did verbally consent to having her rib cage massaged. She confirmed he massaged the entire breast area, including her nipples.

[56] As she started to feel uncomfortable with the Defendant, she stopped booking appointments. She did agree that, aside from this issue, he was otherwise an effective massage therapist.

[57] Her wife, J.P., was also a client of the Defendant’s. A.L. stated that she told J.P. about her discomfort when she was deciding whether to continue with the Defendant or not. She accompanied J.P. when she went to the police to give a statement. At first, A.L. had no intention of providing her own statement or getting involved at all. When police asked her, however, she changed her mind and did provide a statement.

[58] She testified that after they gave their statements, she and J.P. talked on the way home about how uncomfortable they were. She said the content of her statement was not influenced by anyone.

[59] In cross-examination, she was asked about her discussions with J.P. She did not know J.P. had also used the word “knead” in her police statement. A.L. conceded that they may have discussed the situation and possibly used that common reference of kneading breast tissue like dough. She confirmed that J.P. had decided to go to police and that she went with her. Despite repeated suggestions, she did not agree that their discussions had influenced her memory, and thereby the content of her statement or testimony, about what happened.

[60] The relevant factors related to A.L.’s contact with the Defendant are as follows:

(1) She was an athlete with sport-specific issues to be addressed; (2) She had other needs related to a motor vehicle accident she needed to have treated; (3) She was covered inappropriately during her massages; (4) The massage she received did not correspond to the description the Defendant had provided; (5) Her breasts were exposed during massages; and (6) He massaged her breasts.

J.P.

[61] As I said above, J.P. is the spouse of A.L. She was also a client of the Defendant. In 2021, after being alerted to a media article about the Defendant by her then-current massage therapist, she provided a statement to police about her dealings with him.

[62] She began seeing the Defendant around May of 2015, having been referred by a neighbour. At the time she was training for a half-marathon and had developed pain in her foot. She saw the Defendant at Mifflin Chiropractic and paid for her (and A.L.’s) massages with her benefits. When those ran out, she paid out-of-pocket.

[63] Initially, her treatment focused on her feet. Once they started to feel better, her massages, at the Defendant’s suggestion, began to include other areas of her body including her back and shoulders. She did not recall ever signing any consent form.

[64] For massages to her back, she did not wear a bra. This was her own decision as she figured it would just get in the way.

[65] She said the Defendant then began talking about different areas of her body. He told her that since women had wider hips, they sometimes had tension in their inner thighs. Massaging her inner thighs, he said, may give her relief in her feet. She agreed.

[66] For this massage, he instructed her to lie on her back with her legs bent and her feet near her buttocks. Her knees then fell outward in what she called a butterfly position. Her lower body would be draped, but the leg being worked on would be exposed. She said he would stand on the side of the exposed leg and massage her inner thigh from above the knee up to her groin.

[67] On at least two occasions, she said his fingers went under the sheet and touched her vagina. She specifically recalled the first touch being to her labia and the second being a “grazing” touch of her vaginal opening. These were direct, skin-to-skin touches as she did not believe she was wearing underwear at those appointments.

[68] After these incidents, J.P. told the Defendant she felt she no longer needed inner thigh massages as her feet were feeling better. The massages moved to her upper body, primarily her upper back and shoulders.

[69] The Defendant suggested that he might massage her ribs to help her with breathing when she ran. He called it “opening” the ribs. He explained that she needed to be on her back for this massage. She testified that prior to this suggestion, she had been on her stomach. When she turned over, rather than lift the sheet on the side opposite him, and thereby keep himself unable to see her, he lifted it on his side. She was, she believed, entirely visible as she turned over. When she was turned, he folded the sheet down to her hips, exposing both her breasts. She covered her breasts with her hands. He asked if she was comfortable, and she said no. He gave her a small towel, approximately 5” x 7”, to cover herself with. He then proceeded to uncover one breast at a time by folding the cloth over while he massaged her. In cross-examination she was shown a larger towel (30” x 16”) and it was suggested that was the size of towel the Defendant had used to cover her. She disagreed.

[70] As for the massage itself, J.P. remembered it as a gentle manipulation of her breast tissue. It had nothing to do with her ribs or chest. She said he massaged each breast for about five minutes. In cross-examination, she described the massage as a two-handed cupping of her breast. She also agreed she had used the term “kneading like dough” when speaking with A.L. as she liked baking bread and so the description was one that she could relate to. She was clear that in her mind, her discussion with A.L. did not influence the content of her testimony.

[71] After the massage, J.P. went home and told A.L. what had happened. A.L. told her that she’d experienced the same kind of breast massage herself. J.P. then disclosed the vaginal touching. Both agreed they would not return to the Defendant. The issue was a topic of conversation between them for the next couple of weeks.

[72] In the years that followed, J.P. continued to think about the incidents and whether she should tell someone. Seeing media coverage about other complainants spurred her to come forward.

[73] The relevant factors related to J.P.’s contact with the Defendant are as follows:

(1) She was an athlete with a specific physical problem she wanted addressed; (2) It was the Defendant who suggested moving the massages from her feet to her inner thighs, a more sensitive area; (3) On two occasions, the Defendant briefly touched her vaginal area, once on her labia and once on her vaginal opening; (4) It was the Defendant who suggested moving the massages to her upper body, in particular her ribs and chest in order to improve her breathing; (5) At the time of the chest massage, the Defendant exposed both of her breasts; (6) When she told him she was not comfortable with that, he gave her a small washcloth to cover herself; and (7) Her memory of this massage did not include any massage of her ribs when she was on her back, as described by the Defendant. It was entirely a gentle massage of her breasts.

S.D.

[74] In 2015, Ms. S.D. was a triathlete. She had received massages as part of her training in the past, but her usual massage therapist was very busy, so she was looking for others. She received a gift certificate from her mother for Mifflin Chiropractic for Christmas in 2014 and booked an appointment with the Defendant. She only ever visited him once.

[75] At the time, she did not have any specific issue to address. She was training hard in 2015 and so “was always sore”.

[76] When she went to Mifflin, the clinic was closed. She knocked on the door and the Defendant let her in. After discussing her health history, the massage began. She said the gift certificate was for a one-hour massage but that it ended up being close to three hours. She did not recall signing or discussing anything related to consent to treatment.

[77] For the massage, she kept her underwear on. She testified to being concerned about how she was draped. When on her stomach, her back was uncovered. Her legs were covered but she said he would uncover her leg and, she felt, her buttocks. She could feel her underwear being moved so that he could massage her glute muscles. He would pull the underwear up on the side where he was working and tuck the sheet under it, exposing the leg and glute.

[78] Later in the massage, she rolled over onto her back. At this point, her breasts were covered only with a small washcloth. He massaged between her breasts, putting his hand under the cloth. While her memory was cloudy, she testified that he must surely have seen her breasts given how small the cloth was and the nature of the massage. She did not recall any conversation with the Defendant prior to him starting the chest massage.

[79] He also massaged her stomach area. This made her uncomfortable as he massaged down to the area of her pubic hair. Again, she had no memory of discussion about why he was massaging her there, or about her consent to that treatment.

[80] Also while on her back, she said he would uncover her leg and stretch it out to the side. She felt she was not draped properly and was concerned that he could see her vaginal area given the position she was in.

[81] S.D. also noted what she felt was inappropriate conversation from the Defendant during the massage. He told her how he had gotten in shape, but that his wife was overweight and not supportive of him. It struck her as odd and inappropriate that he would talk about his spouse like that with someone he’d just met.

[82] After the massage was complete, the Defendant booked S.D.’s next appointment. While she let him do this, she had no intention of ever going back.

[83] Once she saw a media report about the Defendant, she made the decision to speak to police. She further testified that well after giving that statement, she spoke with K.M. about what had happened. Ms. K.M. was a named complainant in this case but the charge involving her was stayed by the Court. S.D. knew K.M. from the local running community. She knew K.M. had encountered an issue with a massage therapist but did not know it was the Defendant until the media report came out and K.M. posted about it on social media. It was at that point that S.D. made the connection.

[84] She was clear that her discussions with K.M. did not influence her testimony or police statement.

[85] In cross-examination, she denied the Defendant discussed the massaging of her rib cage, intercostal muscles, or abdomen. She strongly denied agreeing to any such massage. She was shown a larger towel, approximately 30” x 16” and it was suggested to her that was the size of towel the Defendant had used to cover her. She disagreed.

[86] She was also asked about her messages with Lindsay Cole, another massage therapist. Those messages were exchanged on 1 and 2 November 2021. In those messages, days before she provided her statement to police, S.D. asked Ms. Cole if she remembered talking about the Defendant several years earlier. In her messages she said:

I had a massage by him a long time ago and I felt like it was super inappropriate. He worked in Dr Mifflin’s office. I thought I had talked to you about it. Maybe it wasn’t you. I’m just trying to remember some of the details.

[87] The final messages in the exchange were S.D. telling her that other women had come forward and providing a link to a news article about the Defendant being charged.

[88] She was asked, not unreasonably, about saying she was “trying to remember some of the details”. It was put to her that she needed help remembering what happened because she actually had a poor memory of events. She disagreed and offered context for the messages.

[89] She said Ms. Cole had initially discouraged her from reporting the Defendant’s conduct at the time of the massage. She wanted to let Ms. Cole know that the Defendant had been charged criminally. In essence, her messages to Ms. Cole were something of an “I told you so”. She denied having any difficulty remembering what happened to her.

[90] I would note that despite not receiving any “details” from Ms. Cole, S.D. provided her statement to police two days later where she disclosed what she said the Defendant did. While I agree that on the face of it, her message seems to betray a lack of memory, her subsequent statement to police and denials of memory problems in her testimony mean that, at this stage at least, I am not unduly concerned about her recall.

[91] Also in cross-examination, S.D. was questioned extensively on her discussions with K.M. She again stated that while they had discussed what happened, K.M. had not influenced her own account. She agreed some of K.M.’s accusations were similar to hers but noted that her own incident took place years before K.M.’s. At no point did they ever compare stories.

[92] In an Agreed Statement of Facts, the Court was advised that following her testimony, S.D. messaged K.M. and told her she’d been asked questions in court about the contact they’d had with each other. K.M. advised the Victim Witness Assistance Program, who told the Crown. At the time, K.M. was still a potential Crown witness. S.D.’s contact with K.M. was in violation of the witness exclusion order I made at the outset of this trial. It also went against the direction given to S.D. by police at the time of her statement that she should not speak to any of the other complainants.

[93] The relevant factors related to S.D.’s contact with the Defendant are as follows:

(1) She was an athlete looking for massage to help in her training; (2) While her massage appointment was for one hour, it went on much longer; (3) She was concerned with how she was draped and felt her breasts and possibly her vaginal area were likely exposed; (4) When her breasts were covered, it was with a very small washcloth; (5) She did not recall any discussion about why certain body parts were being massaged, or what the beneficial effect might be; and (6) The Defendant engaged in inappropriate conversation during the massage.

[94] The final two complainants are not on the information. They are extrinsic similar fact witnesses offered only for the purpose of this application.

E.S.

[95] Ms. E.S. had been seeing a female massage therapist but was looking for a male therapist who could give her a stronger massage. She searched on Google and found the Defendant. She went to his house for all her visits, which commenced in or around September 2019. Her areas of concern were her neck and back, as a result of her working long shifts as a nurse and spending a lot of time at a computer.

[96] At the first appointment, E.S. only brought credit cards as she thought she was going to a clinic. The Defendant was looking to be paid in cash. He told her she could pay on the next occasion. She believed she paid about $70 for a one-hour massage, but when she told the Defendant she only had $500 in coverage from her employer, he told her she could pay whatever she wished, even as little as $20 per session.

[97] She believed she filled out a form describing the areas she wanted massaged. He left the room, telling her she could remove her clothing or leave it on if she preferred. She elected to remove all her clothing except for her underwear. She laid facedown on the table, covered by a sheet.

[98] She testified that nothing untoward happened in her first massage. They had an unremarkable conversation and afterward, she booked her next appointment for a week or two later.

[99] The second massage was longer than the first, lasting an hour and thirty minutes to an hour and forty-five minutes. He massaged her neck and back again, and included a massage of her jaw as well. Notable on this occasion was that the Defendant answered the door in his pajamas, or possibly jogging pants. She waited in the therapy room while he got showered and dressed. She testified that she felt uneasy after the second massage but couldn’t explain why. Regardless, she booked a third massage, again a week or two later. At the second appointment, she paid for both the first and second massages.

[100] The third massage was markedly different. It was approximately three hours long. It began with him preparing a basin for her to soak her feet. She wasn’t told why this was being done. While her feet were soaking, she said he engaged in unexpected and inappropriate conversation. She said he asked her if she waxed her pubic hair. She felt very uncomfortable but answered. He then told her how much it hurt when he had his own pubic hair waxed. This conversation was unrelated to anything happening at the time.

[101] After the foot soak, she moved to the massage table. By that point, she was unclothed but for her underwear and lying on her stomach. She was covered by a sheet. When the Defendant entered the room (having left so she could undress), she said he lifted the sheet and looked at her. He remarked, “oh, you’re wearing your underwear”. He told her he could do a much better job if she wasn’t.

[102] The massage began on her feet and lower legs. She testified to not knowing why he was working on this part of her body. He moved up the entire length of her legs, including her inner thighs. He did not massage her buttocks but again, at some point during this part of the massage, told her he could do a better job if she wasn’t wearing underwear. He eventually moved to massaging her back. When asked, she could offer no reason she knew why her inner thighs were being massaged. Later, when she moved onto her back, he massaged the inner thighs again. She did not recall any discussion of consent to him touching that area.

[103] She was clear that he did not touch her underwear during this massage, nor did he touch her vaginal area at any point in her dealings with him.

[104] When on her back, the Defendant also massaged her chest wall. To do this, he put two towels on her chest, one on each breast, under the sheet that had been covering her. He then pulled down the sheet, leaving the towels in place. She was shown Exhibit 13, which is a towel counsel said measured 30” x 16”. She agreed the towels used were similar but said they were folded into four, in a rectangle shape, when on her body. Her breasts were never exposed during this time.

[105] He then massaged the muscles between her ribs, next to her sternum. This massage was, she said, on her breast and about three inches from her nipple. He only massaged the right breast in this way. There had been no discussion about why this area was being massaged or if she consented to it, but she speculated that as she’d complained of pain in her right scapula, perhaps this massage was meant to address that issue.

[106] While she booked another massage at the conclusion of the third appointment, she had no intention of ever returning. The conversation about pubic hair had sufficiently discomfited her that she did not want to go back.

[107] In cross-examination, E.S. agreed the Defendant had shown her a diagram that depicted how muscles are connected. She agreed he may have suggested a full-body massage, though she didn’t recall that happening. Likewise, she conceded he may have mentioned massaging the chest wall as well, she just didn’t recall.

[108] It was suggested to her that at the conclusion of the second massage, the Defendant offered a full-body massage on the next occasion. Again, she agreed that may have happened. She also acknowledged he may have talked about a foot and leg massage as a way to help her with being on her feet so much.

[109] Regarding the Defendant lifting the sheet and seeing her underwear, she clarified that while she felt that happen, she did not see it happen.

[110] The relevant factors related to E.S.’s contact with the Defendant are as follows:

(1) The Defendant engaged in inappropriate conversation during an appointment; (2) He massaged areas of her body where she recalled no prior discussion taking place or consent being given; (3) He told her he could do a better job massaging her if she was not wearing underwear; (4) Her breasts were covered with towels that had been folded into a smaller size; and (5) Her second and third massages, meant to be one hour, were considerably longer than that.

C.M.

[111] Ms. C.M. was a client of the Defendant’s from 24 June 2016 to 20 January 2017. In November 2015, she was involved in a motor vehicle accident that resulted in injuries. She had issues with her upper spine, specifically spinal stenosis, herniated discs, osteoporosis, and osteopenia, along with a lower-back injury. While these conditions were not defined, I find I can infer that C.M. had a host of issues related to her back that led to her engaging the services of the Defendant.

[112] At her first visit, she said the Defendant told her he would massage her inner thighs as part of the treatment for her lower back. He told her it would be her inner leg from her kneecap to her groin. She did not recall signing any consent forms. The massage of her inner thighs became part of the “normal routine”.

[113] For her appointments, she would typically wear old thong underwear. She remembered this as she wore old underwear because she expected to get massage oil on it. Regarding draping, she said she was always covered with a sheet. She said she was shy about her chest and so would hold the sheet in place by tucking it into her armpits. The Defendant would tell her when he needed to uncover a particular body part.

[114] C.M. testified about one specific visit, on 15 July 2016. On that occasion, she was lying on her back. Her legs were in what she called a frog position: her knees were fully bent, heels close to her buttocks, soles of her feet touching, and knees spread wide. What she calls the frog position appears to be what J.P. called the butterfly position. She was in that position at the direction of the Defendant. She had a sheet over her, tucked into her armpits. With a sudden movement she likened to making a bed, the Defendant took the sheet and flung it off her. She kept it in place with her arms, but she said her lower body was exposed. He then took the elastic portion of her underwear and moved it to the side, completely exposing her vaginal area. He then started massaging her inner thigh. She said she was fully exposed for several minutes.

[115] At the end of the massage, she said he acted like nothing had happened. She felt violated and upset.

[116] C.M. said that she stayed with the Defendant as he had told her that if she switched massage therapists, her insurance company may cancel her benefits. The benefits she had were not through her employment but were the result of the motor vehicle accident. She had no other coverage for massage treatments.

[117] She returned to the clinic 2-3 days later. She had resolved to confront him about what had happened. In the treatment room, she told him in a stern voice that she was never to be uncovered like that again, and that she felt humiliated and violated. In response, the Defendant became angry and told her to lower her voice. He said he didn’t want people to hear her as he already had one complaint against him.

[118] He told her that he wasn’t going to be able to treat that part of her body if that is how she felt. She tried to tell him it wasn’t the treatment that was the problem, it was him uncovering her. Ultimately, he left the room and told her to get ready for the massage. She was still upset. She asked for a tissue and he responded by telling her she needed to toughen up. She said he downplayed the seriousness of her complaint.

[119] As time passed, her conditions were getting worse. Her family doctor told her to reduce her massages from twice a week to once a week. When she did, the Defendant got angry again. He called her doctor a jack-of-all-trades and said she needed to stick up for herself.

[120] Her condition did not improve and so in 2017 she chose to stop seeing the Defendant. Not wanting to create more conflict, she told him her treatment plan had run out and that her doctor was stopping the massage therapy. When she went to the clinic to pay for her final treatment, he told her she owed him for a previous appointment at another clinic as well. He again became irate. She said he threw the receipt at her. She left quickly as “he was very, very angry”.

[121] Later, she told another massage therapist what happened. Subsequent to that, the College of Massage Therapists of Ontario contacted her, as did the police. She confirmed she never spoke with any other complainant in the case.

[122] In cross-examination C.M. noted that the pressure he used in massaging her increased significantly after she complained to him. The increased pressure was painful and made her cry.

[123] She was also asked about text messages she’d sent to the Defendant. On the day he exposed her vaginal area, she sent a text afterward telling him she felt good after the treatment. She also sent the treatment plan she had with the Defendant to the insurance company, identifying him as her therapist. There were further communications between them, but she justified them as an effort to maintain her relationship with him as she didn’t want to lose her accident benefits.

[124] C.M. referred two other women to the Defendant. One was a very elderly woman and the other was a friend. She said she’d told the friend what the Defendant had done when he uncovered her, but the friend wanted his number regardless as she wanted a deep-tissue massage. At first, C.M. said no, but eventually did give her his information.

[125] The relevant factors related to C.M.’s contact with the Defendant are as follows:

(1) He inappropriately moved the sheet that was covering her during a massage; (2) He uncovered her vaginal area by moving her underwear to the side; (3) When she confronted him about it, he became angry and told her to lower her voice; (4) He told her that if she tried to change therapist, her insurance company may cancel her benefits; and (5) On their last meeting, he again became angry and threw her receipt at her;

Analysis

[126] Having set out the allegations of the charged and extrinsic complainants, I now consider the level of similarity and dissimilarity between them.

The Crown’s Proposed Similarities

[127] At paragraph 134 of its Factum, the Crown sets out the similarities it says are present in this case. I have reproduced the list below, but have removed any reference to K.M. as her count is no longer before the Court:

1. Each complainant is a female who attended the Respondent’s massage clinic or residence for massage therapy sessions with the Respondent with no sexual intention.
2. J.S., J.P., S.D., and E.S. recall the Respondent massaging their inner thigh area.
3. J.S., J.P., S.D. and C.M. recall the Respondent massaging at or near their vaginal area.
4. J.S. and J.P. recount the Respondent making physical contact with their labia and/or vulva and S.D. recounts the contact coming so close that her labia would move.
5. J.P., A.L. describe the Respondent massaging their breasts as “kneading”.
6. J.S., S.D. were given only small washcloths to cover their breasts and crotch. E.S. was given only small washcloths to cover her breasts.
7. J.S., J.P., A.L., A.R., S.D. had their entire breasts exposed during their massage sessions; E.S. had her one breast exposed at a time but her nipples and areolas were never exposed.
8. J.S., S.D., and C.M. recall their vaginal area being exposed during the massage.
9. J.P., A.L., A.R., S.D., and E.S. had their breasts massaged.
10. E.S., S.D., A.L., J.P. never asked for work on areas the Respondent focused most of his massages on.
11. The Respondent justified his unusual massage techniques with seemingly legitimate and professional reasons.
12. The Respondent attempted to contact J.S., J.P., A.R., E.S., and S.D. when they stopped attending or returning to massage therapy with him.
13. A.R., S.D., E.S. recall receiving massage treatments from the Respondent while nobody else was in the building or residence.
14. S.D. and E.S. had massages that lasted three hours.
15. J.P. and A.R. noted their massages were scheduled for an hour but went on for a lot longer.
16. The Respondent’s billing practices can best be described (by the Applicant) as “fluid”. He was described charging minimal amounts for lengthy massages, or
17. Many of the complainants were athletic in nature, with many training for a race, marathon, or an Ironman competition.
18. It is alleged that consent to touch sensitive areas was not discussed and forms providing consent for the touching were not completed by the complainants.
19. The Respondent practiced improper draping techniques that made complainants A.L., S.D., E.S. and C.M. uncomfortable.

[128] Some of these proposed similarities are specific while others are general. I must be cautious about placing undue reliance on similarities that could be considered generic (see: R. v. O.C. [2006] O.J. No. 434 (C.A.)). In R. v. Elliot [2019] O.J. No. 4111 (S.C.J.), Justice Braid stated:

When there are mere generic similarities with no distinctive unifying features of the proposed evidence and the allegations before the court, the proposed evidence lacks probative value. The risk in relying on generic similarities to support the inference that an actus reus occurred can be described two-fold: (1) the inference arising from the proper conduct is so general that it approaches bad personhood and, (2) because of the non-specific character, generic similarities can mask underlying dissimilarities that could be important: see R. v. O.C., [2006] O.J. No. 434, (Ont CA); R. v. Blake, [2003] O.J. No. 4589 (Ont CA); affirmed 2004 SCC 69.

[129] In the present case, an example of a generic similarity would be that all complainants are female. While that is true, it is also not a “distinctive unifying feature” as envisioned in Elliot. Proposed similarities must go beyond such general commonalities.

[130] For the Defendant, counsel argues the proposed similarities are all generic and incapable of admission as similar fact evidence.

[131] As I said earlier in these reasons, counsel are agreed that this application is not an “all-or-nothing” proposition. I may find the accounts of some complainants to be sufficiently similar to grant the application, but I may not so find regarding others. The proposed similarities for each complainant must be considered and compared with the others to arrive at a conclusion.

[132] While I have included the Crown’s list of proposed similarities above, I remind myself that they are based on the witnesses’ statements, not their evidence. The list was prepared long before any of them testified. While I can certainly use the list as a guide to potential similarities, it is the evidence of each complainant that I must consider.

[133] In my view, the following categories go beyond generic similarities, based on the testimony I have heard:

1. Vaginal Touching

[134] Three complainants testified to the Defendant specifically touching their vaginal area: J.S., J.P., and A.R. J.S. spoke of quick touches to her vagina while the Defendant was massaging the back of her leg on two or three occasions. She also testified to him rubbing her vagina with his hand during one massage where he put his hands around her leg and moved in a see-saw motion.

[135] J.P. testified to two touches. The first was to her labia, under the sheet while the Defendant was massaging her inner thighs. The second was a “grazing” touch to her vaginal opening in the same circumstances.

[136] A.R. testified to the Defendant massaging her abdomen. In the process, she said he began rubbing her clitoris.

[137] S.D. testified to the Defendant massaging her stomach area close enough to her vaginal area that she felt that area move a bit, but she did not allege any vaginal touching. As a result, I have not included her in this category.

2. Breast Massaging

[138] A.R., J.P., and A.L. all complained of the Defendant massaging their breasts.

[139] A.R. testified to the Defendant standing behind her while massaging both breasts at once. This, she said, was to help with something the Defendant called lymphatic drainage.

[140] J.P. stated that after the Defendant mentioned her rib cage potentially being tight (I will return to that point later) he massaged her breasts. She described it as a two-handed cupping motion and as a gentle manipulation that seemed to have nothing to do with the muscles under her breasts.

[141] A.L. testified to the Defendant also mentioning her possibly having a tight rib cage. He massaged her whole breasts, including the nipples, in a kneading fashion.

[142] All three complainants testified to the Defendant exposing both their breasts simultaneously in the course of their massages.

3. Athletic Backgrounds

[143] Four of the seven complainants who visited the Defendant had athletic backgrounds: J.S. was a marathon runner, S.D. was a triathlete, J.P. was training for a half-marathon, and A.L. was generally athletic. All had specific issues they wanted to have addressed.

[144] In the cases of S.D., J.P., and A.L., the Defendant suggested massages to the complainants’ chest on the basis of their athleticism. He told them all that athletes can have tight rib cages as a result of breathing heavily and that massages to the rib cages can help open them up. None of the complainants testified to any issue with their chest or their breathing when they went to see the Defendant; chest massages were only undertaken after he made that offer.

4. Underwear Removal Encouraged

[145] Three complainants testified that the Defendant recommended they remove their underwear as he would be able to give them a better massage if they did.

[146] J.S. testified that on one occasion she mistakenly removed her underwear when she undressed for the massage. When the Defendant came back into the room, she told him and asked him to leave so she could put them back on. He suggested she keep them off as it would be easier without them. She agreed.

[147] E.S. said she always kept her underwear on during massages. In her third and final massage, she said she was lying facedown on the table when the Defendant came into the room. She said he lifted the sheet, or at least that it felt like he did, and said, “Oh, you’re wearing your underwear.” He told her he could do a much better job if she wasn’t.

[148] Finally, A.R. said the Defendant initially told her she should remove her shirt. He then told her it would be easier to massage her if she was unclothed. As a result, she was nude for the massage where she said he touched her inappropriately.

5. Massaging Areas with No or Mismatched Explanation

[149] On several occasions, the Defendant either massaged complainants on body parts they hadn’t discussed, or in ways that did not match his explanation. Five complainants fall under this category.

[150] J.S. testified to an incident when the Defendant knelt beside her on the table, took her hips in his hands, and thrust her up and down on the table for about a minute. She said there was no explanation given for this maneuver, and that at the time, she was not suffering from any specific injury that might have explained it. He’d never done it before, and never did it again. Likewise, she testified to another occasion where he linked his hands under her leg and moved them in a see-saw motion. This was the massage where she said he directly rubbed her vagina. Again, this was a maneuver he’d never done before and didn’t do again. In neither case was there any conversation to explain his actions.

[151] S.D. received a massage to her chest. She had no recollection of discussing that area with the Defendant. He also massaged her stomach down to her pubic area, again without any explanation of why he was doing it.

[152] A.R. had gone to the Defendant for neurological issues in her back and legs. He suggested a chest and breast massage to assist with lymphatic drainage. She said there were often times when, despite a lengthy massage, he never got to the areas she actually wanted to be treated.

[153] A.L. was advised by the Defendant that athletes often had tight rib cages from heavy breathing. He said he could massage the muscles of her rib cage to help open them up. The subsequent massage, she said, did not follow the outline of her ribs. Instead, it was a circular kneading motion on her breast tissue.

[154] The Defendant told J.P. that he could massage her ribs to open her chest and make breathing easier while running. She agreed, but the massage that followed did not involve her ribs. Rather she said it was a “gentle manipulation” of breast tissue in a “two-handed cupping” manner. The massage did not involve the ribs or muscles beneath the breasts.

6. Unusual Business Practices

[155] On several occasions, the Defendant either performed massages far longer than he had been paid for, or accepted much lower payment to encourage the complainants to return.

[156] When J.S. was paying for her massages with her benefits, she was paying around $150 for a two-hour massage. Once the massages moved to the Defendant’s house, the price changed significantly. He only charged her $50 a month for two two-hour massages, and $20 if she needed an additional treatment. After the inappropriate incidents when she stopped seeing the Defendant, she told him she didn’t have the money to continue. He offered to loan her the money so she could continue seeing him.

[157] The gift certificate S.D. used for her visit was for a one-hour massage. She testified it lasted nearly three hours, with no explanation or discussion.

[158] E.S. booked three one-hour massages. The first was an hour. The second was between 1 hour and 30 minutes and 1 hour and 45 minutes. The third was about three hours. Also, E.S. initially paid $70/hour for her massages. When she told the Defendant she only had a total of $500 in coverage, he told her she could pay whatever she wanted, even just $20 per massage.

7. Improper Draping/Exposure

[159] Six complainants alleged either improper draping of their bodies by the Defendant, or that he left their sensitive areas entirely exposed over the course of their massages.

[160] J.S. complained that she was not covered properly during her massages once she stopped wearing underwear at her appointments. On one occasion her entire lower body was exposed but for a small washcloth over her vagina. Owing to the aggressive massaging of her legs, she felt the cloth moved and exposed her. On another occasion, when she had a towel over her breasts, he suddenly pulled it away, leaving her exposed.

[161] A.R. went from being clothed to being entirely unclothed over the course of her dealings with the Defendant. When she was unclothed and lying on her stomach, she testified to only being covered by a cloth the size of a piece of printer paper over her buttocks. As well, during the massaging of her breasts, both breasts were completely exposed whether he was massaging one or both breasts at a time.

[162] S.D. testified to her breasts only being covered by a small washcloth during her chest massage. She felt he surely must have seen her breasts given how small the cloth was. She also expressed concern about her vaginal area being exposed by the way the Defendant stretched her leg out to the side without proper covering.

[163] A.L. said during her chest massages, her entire upper body was exposed with no covering at all.

[164] When J.P. turned from her stomach onto her back, she said the Defendant folded the sheet that had been covering her down such that both her breasts were exposed. She covered herself with her hands. When he asked if she was comfortable and she said no, he gave her a small towel to cover her breasts. He then folded the towel to uncover each breast as he massaged it.

[165] C.M. testified to always being covered by a sheet that she tucked under her armpits. On one occasion, in a movement she likened to putting sheets on a bed, the Defendant suddenly tried to throw the sheet off her. She held onto it, but her lower body was exposed as a result. Following this move, she said he took the edge of her underwear and moved it to the side before massaging her leg. This fully exposed her vaginal area, which remained uncovered for several minutes.

8. Recommending Massages to More Sensitive Areas

[166] With three complainants, the Defendant recommended shifting the focus of massages from innocuous areas to more sensitive areas of their bodies.

[167] A.R. initially presented to the Defendant with pain in her arms, back, and legs. It was the Defendant who suggested a chest/breast massage to assist with lymphatic drainage, a concept A.R. knew nothing about. She testified that there were times he did not get to her requested areas because he’d spent the appointment massaging the areas he’d recommended.

[168] A.L. complained of neck and upper back pain owing to a motor vehicle collision she’d been in. She also had other pains that arose from her athletic pursuits. The Defendant suggested adding the chest massage to help with her breathing, something about which A.L. had not complained.

[169] J.P. first saw the Defendant to address foot pain related to her training for a half-marathon. It was entirely at the Defendant’s suggestion that he started massaging her inner thighs. He also recommended a chest massage, again to address a problem J.P. had not mentioned.

9. Persistence and Anger

[170] For multiple complainants, ending their professional relationship with the Defendant or questioning his conduct led to repeated attempts at communication and, in some cases, anger.

[171] When J.S. stopped seeing the Defendant, he texted her often. He offered to loan her money so she could continue seeing him. He brought fresh produce to her house as a gift. He told her, with tears in his eyes, that half his life had ended when she stopped seeing him. He offered to be her foot or posture specialist if he couldn’t be her massage therapist.

[172] The Defendant texted A.R. sufficiently often that she blocked his number. She testified that he also tried to contact her over multiple social media accounts during and after her time as a client.

[173] When C.M. confronted the Defendant about his conduct, he responded with anger. He told her to lower her voice lest someone in the clinic overhear. When she was upset and crying about what she said he’d done, he told her to toughen up. When she told him her doctor had recommended she reduce her visits to just once a week, the Defendant argued with her and called her doctor a “jack-of-all-trades”. He told her to stick up for herself with him (i.e. to defend her twice weekly massage visits). She testified he told her, “I’m right, he’s wrong.” On her last visit to the clinic, to settle her account, she said he was again very angry and that he threw her receipt at her.

[174] I have not included in these categories any mention of the apparently inappropriate comments made by the Defendant to some of the complainants. For example, he asked E.S. whether she waxed her pubic hair, and told S.D. how his wife was not supportive of his own fitness. In my view, these sorts of comments may well have been inappropriate, but they are also quite different complainant to complainant. I do not think “inappropriate conversations” is a proper category of similarity. Had the Defendant asked multiple complainants the same thing, for example, about waxing their pubic hair, I may have reached a different conclusion. But he did not. The comments he did make were perhaps unfortunate but not sufficiently similar to support granting the application. Counting them as a category of similarity would risk venturing into character evidence given the differences in the various comments.

[175] I have also considered the dissimilarities in the evidence. The conduct complained of is not standardized across all complainants. Some spoke of breast touching, others of vaginal touching, others of both. There was also a disparity in the complainants’ ages. Some said the Defendant encouraged the removal of their underwear; others gave no such evidence. In my view, however, the similarities that do exist among subsets of complainants are compelling and not outweighed by the dissimilarities in the overall totality of the evidence.

[176] The conduct in each of the named categories goes beyond generic similarity. In my view, they show distinctive, unifying features that link them. That view is strengthened when I further apply the principles set out in Handy. There, the Supreme Court required a judge hearing a similar fact application to consider not only the specific conduct alleged to be similar, but also the surrounding circumstances and context (see par. 82, as part of the list of factors that could connect the conduct in question).

[177] When I consider the surrounding circumstances, the connection between complainants is strengthened. All were clients who sought out the Defendant and his services. All had a specific reason for treatment, though that reason varied: some were athletes, others had medical conditions, and others had injuries. That is, none of the complainants engaged the Defendant solely for casual, relaxation-based massages. All had their own specific reason for needing his help.

[178] All were clients between 2014 – 2021, with the bulk of the allegations coming between 2015 – 2017. The temporal proximity of some allegations is stronger than others, but all arose in the same seven-year period. Nearly all arose from the Defendant’s time working at Mifflin Chiropractic.

[179] Part of determining the level of similarity includes a limited assessment of the witnesses’ credibility. If the evidence is not credible, the similarities it provides will not be helpful. In the case of R. v. Larsen [2012] N.W.T.J. No. 47 (C.A.), Justices O’Brien and Bielby said the following at paragraph 25:

The credibility or reliability of the proposed similar fact evidence is one aspect of its probative value. At para 104 of Handy, Justice Binnie stated:

The trial judge's gatekeeper role in this respect was addressed in B.(C.R.) by McLachlin J., at pp. 733-34:

The difficulty of the trial judge's task and the amount of discretion entrusted to him or her is great. As Forbes, [Similar Facts (1987)], puts it at pp. 54-55:

A judge presented with similar facts for the prosecution has to exercise an extraordinary complex of duties and powers. First he has to assess not only the relevance but also the weight of the disputed evidence, although the latter task is normally one for the jury. Second, he must somehow amalgamate relevance and weight to arrive at "probative value". [Emphasis in the original]

And, at paras 134 and 136, he said:

In the usual course, frailties in the evidence would be left to the trier of fact, in this case the jury. However, where admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is a factor that the trial judge, exercising his or her gatekeeper function is, in my view, entitled to take into consideration. Where the ultimate assessment of credibility was for the jury and not the judge to make, this evidence was potentially too prejudicial to be admitted unless the judge was of the view that it met the threshold of being reasonably capable of belief.

If the proffered similar fact evidence is not properly capable of supporting the inferences sought by the Crown, the analysis generally need go no further. ... [Emphasis in the original]

[180] Justice Slatter wrote a separate opinion, concurring in the result but saying this about similar fact evidence at par 74:

Thus, where the trial is by judge alone, the trial judge will consider the credibility of the similar fact evidence at both stages. That is consistent with the approach taken in Handy at para.134. This does not in any respect result in any "circularity". The credibility of the evidence is relevant in both stages. In the first stage, the credibility of the evidence is used to determine if, on a balance of probabilities, the evidence is admissible. In the second stage, the credibility of the evidence is used to determine if the Crown has proven the case beyond a reasonable doubt.

[181] I have assessed the evidence of the complainants as part of this application. This assessment is not as fulsome as the one I will conduct at the conclusion of the trial, where the test will be whether the Crown has proved the charges beyond a reasonable doubt. At this point I consider, as noted in Handy and quoted by the majority in Larsen, whether the evidence is reasonably capable of belief.

[182] I find the evidence of the complainants is reasonably capable of belief. Without question, there were memory issues for some of them, perhaps attributable to the passage of several years between their dealings with the Defendant and their testimony. Counsel for the Defendant pointed out several areas of concern regarding the testimony of various complainants (C.M.’s seemingly positive text sent shortly after she alleges being violated by the Defendant, for example). They were proper submissions and I expect I’ll hear them again at the conclusion of this trial when the bar the Crown faces is much higher. When the credibility assessment is as limited as it is at this stage, however, I cannot say any would be incapable of belief.

[183] In summary, according to the categories noted above, I find the evidence of the complainants in each category is capable of admission as similar fact evidence for the purpose of bolstering the credibility of each complainant and to rebut any suggestion of accidental misconduct. Where the category addresses issues not related to physical contact with the complainants (e.g. unusual business practices), it is capable of enhancing those complainants’ credibility as to how the Defendant otherwise interacted with them. Where the category addresses issues of physical contact with complainants (e.g. breast massage), it is capable of enhancing credibility, providing evidence of the actus reus, and rebutting possible defences.

[184] That said, simply because evidence is capable of being admitted as similar fact evidence does not mean it will be admitted. I must consider other factors before making that determination. While I find the evidence is probative of the issues specified, I must consider other factors that could detract from that probative value, and then determine if it nonetheless outweighs the potential prejudice it could visit on the Defendant.

Probative Value vs Prejudice

[185] Before the proposed similar fact evidence can be admitted, I must balance its probative value against the potential for prejudice. This is the heart of the entire inquiry. As noted by Justice Beveridge of the Nova Scotia Court of Appeal in R. v. Percy [2020] N.S.J. No. 57 at paragraph 49:

The test is easy to state. The Crown must satisfy the trial judge on a balance of probabilities that the probative value of the evidence in relation to a particular issue outweighs its potential prejudice (para. 55).

[186] Easy to state does not mean easy to apply.

[187] Generally, the more similar the acts complained of are, the more probative value they will have as the potential for innocent coincidence or chance similarity decreases.

[188] More specifically, the Court must first consider the issues on which the similar fact evidence is offered. In the present case, the Crown seeks to use it to show the actus reus of the offences, to rebut potential defences, and to bolster the credibility of each complainant.

[189] While the proposed evidence must be probative of these issues, it need not be conclusive proof of them. The Supreme Court in Handy directed judges away from such a test (see pars. 94 – 97).

[190] Another important aspect of the weighing exercise is whether any of the evidence is potentially tainted by collusion. Given the potential prejudice of similar fact evidence, it must be independent of outside influences from other sources. Collusion can, as I stated earlier, undermine the suggestion that the conduct in question is anything other than coincidental. It can be intentional or unintentional.

[191] If the defence shows an air of reality to the possibility of collusion, it will be for the Crown to disprove it on a balance of probabilities.

[192] There are two instances of potential collusion to be addressed in this case. The first relates to J.P. and A.L. The second relates to S.D. and K.M.

J.P. and A.L.

[193] Ms J.P. and Ms. A.L. are spouses. They were clients of the Defendant at the same time. As one might expect, they discussed their experiences with each other. This became more apparent when evidence was heard that both used the same descriptor when explaining how the Defendant massaged their breasts. Both used the term “kneading”. It’s not impossible that they could have independently come up with that word, but I agree with the defence that there is at least an air of reality to the suggestion that they may have influenced each other’s accounts. This influence shows itself in their mutual use of a specific word.

[194] The Crown must therefore disprove collusion on a balance of probabilities. That is, it must be more likely than not that the evidence of J.P. and A.L. was independent and not the product of teamwork.

[195] In her evidence in chief, A.L. used the term “kneading” to describe the Defendant’s actions. In cross-examination she was asked if she knew J.P. had used the term “kneaded like dough” in her police statement. She said she did not know that. She agreed that term may have been used in their discussions. But, she was clear that the substance of her testimony was not influenced in any way by her communication with her wife. She said that while they talked about what happened around the time of the events, after that it would only come up periodically and was not a regular topic of conversation. After J.P. saw a media report about the Defendant and decided to come forward, they had further discussions. A.L. did not remember the specifics of those conversations but again disagreed that they had any influence on her memory of her dealings with the Defendant.

[196] J.P. was also asked about her communication with her wife about the Defendant. She said they talked about it around the time of the allegations, in summer 2015. Mostly they discussed whether she (J.P.) wanted to go to police. She said she may have used the term “kneading dough” to explain his actions. When asked why she would choose those words, she said she was a baker and so the description was a relatable one for her.

[197] It was she who decided to go to police after hearing about the Defendant in the media years later. While she and A.L. discussed coming forward, she did not recall going over the specifics of the massage again with her. She was clear that any discussions they may have had did not affect the content of her statement or testimony.

[198] Having reviewed the evidence of both witnesses, I come to the conclusion that there is a difference between collusion and influence. One is a problem, but the other may not be.

[199] I find that, in discussing what happened, J.P. likely influenced A.L.’s subsequent descriptions. A.L.’s use of the term “kneading” seems to point emphatically in that direction as J.P. admitted that was the word she used in their conversations. But this is where the difference between influence and collusion comes in. Who among us has not picked up some new phrase or slang from people we meet or from movies or television? If I say my new car is “so choice”, that doesn’t mean I’m colluding with anyone to inflate its value. It just means I’ve probably seen “Ferris Bueller’s Day Off” recently. In the same way, while I don’t doubt that A.L.’s use of the word “kneading” came from her discussions with J.P., that doesn’t mean those discussions altered the substance of her testimony.

[200] In summary, while the two witnesses obviously spoke to each other after their experiences with the Defendant, I find the Crown has proven on a balance of probabilities that the substantive content of their evidence was not the product of intentional or unintentional collusion.

S.D. and K.M.

[201] These individuals came to know each other through the local running community. S.D. was questioned about their contact by both the Crown and counsel for the Defendant.

[202] She testified that while she knew K.M. had an issue with a massage therapist, she didn’t know it was the Defendant until K.M. posted about it on social media. This was, she said, well after she gave her statement to police. She admitted they discussed what had happened to them. K.M. recounted her story to S.D., and S.D. recounted hers to K.M. S.D. was adamant, however, that that contact did not influence her testimony.

[203] She said they spoke prior to trial, but that it was only about K.M. being upset she couldn’t testify. They did not discuss S.D.’s evidence and K.M. did not influence her attendance in court in any way.

[204] In cross-examination, she said that they were not really friends, but acquaintances in the running community. They are friends on Facebook, but she said members of the community would typically add each other so they could communicate about races. She denied them comparing their stories. She said K.M. seemed “scarred” from her incident and wanted to talk about it. S.D.’s own incident had happened years earlier, and she said her account was not influenced at all by their conversations. She agreed K.M. seemed quite motivated to see the Defendant prosecuted. She further agreed that their accounts bore some similarities. But she was clear in her denials that her account was in any way shaped by their contact.

[205] It is troubling that their contact post-statement was against the direction of police, who told her not to speak to any other complainants. That direction was likely given to avoid any possibility of intentional or unintentional collusion, but unfortunately it was not followed.

[206] Subsequent to hearing S.D.’s evidence, I received the Agreed Statement of Facts I mentioned. It revealed that S.D. had contacted K.M. after her testimony to tell her she’d been questioned about their contact. At the time, K.M. was a potential Crown witness. This contact violated the witness exclusion order I made at the start of trial and would seem to be the second time a direction not to speak to other complainants was disregarded. This second contact is not relevant to the issue of collusion as it came after S.D.’s testimony. It is relevant, however, to my assessment of S.D.’s credibility. I suspect I will have more to say on this point in my reasons for judgment. At this stage, while it is concerning, I find her evidence is still reasonably capable of belief.

[207] The crown did not call K.M. on the application, so I have no evidence from her on the issue of collusion.

[208] I find their contact in the lead-up to trial creates at least an air of reality to the possibility of collusion. The Crown must therefore disprove it on a balance of probabilities.

[209] S.D.’s denials of collusion were consistent and clear. As well, her statement to police, where her account was first memorialized, was completed before she had any discussions with K.M. about the allegations. Their contact prior to trial, she testified, was only related to K.M.’s unhappiness about not testifying. She was not shaken on any of this. I find the evidence disproves collusion between S.D. and K.M. on a balance of probabilities.

Prejudice

[210] The greatest risk when assessing similar fact evidence is the possibility that it will prejudice the Defendant with the trier of fact. This can happen all too easily when the evidence goes beyond (or perhaps never reaches) sufficient similarity to show a specific propensity to commit a criminal act and shows instead that the Defendant is simply a bad person who must surely be guilty of something. I must be mindful of this risk and weigh it against the probative value of the tendered evidence.

[211] In my view, the potential prejudice of the evidence can be addressed two ways.

[212] First, the risk is attenuated by virtue of this being a trial without a jury. Every day in our courts, judges hear potentially prejudicial evidence and are expected to view it in accordance with the law and their duty of impartiality. For example, judges are regularly required to disabuse themselves of evidence following Charter-based exclusion. In cases like that, judges must ignore evidence that may well have been conclusive of guilt. Certainly, that task is more difficult than the one before me. I remind myself that the similar fact evidence, if admitted, is offered only for the limited purposes set out by the Crown. It is not general bad character evidence. That I am not sitting with a jury makes any risk of either moral or reasoning prejudice much more manageable than it might otherwise be. Further, the proceedings have not been significantly prolonged as five of the seven witnesses relevant to this application would have testified in any event. I rely on Justice Zarnett’s words in Tsigirlash, supra, for support on these points.

[213] Second, the evidence would not be admitted holus bolus across every count and every complainant. Such admission would be far too broad and encourage the interpretation that it is simply evidence of character. By categorizing the evidence as I have done, I am limiting its applicability only to those situations where the similarities are clear and significant.

[214] While the possibility of prejudice can never be completely eliminated, I find it can be managed successfully in this case. It does not outweigh the probative value of the similar fact evidence.

Result

[215] I find the evidence of the complainants, as grouped in the categories listed above, to bear significant similarities that make innocent coincidence objectively improbable. The evidence provided by the complainants is reasonably capable of belief and permits the inferences sought by the Crown to be drawn. In my view, the probative value of the evidence, used in this way, outweighs its potential prejudice. It is important to remember that at this stage, I am not ruling on the ultimate weight to be given to any piece of evidence, or on whether the desired inferences will ultimately be drawn. This application is related solely to admissibility.

[216] I categorize the evidence as I have in recognition that this is a similar fact application, not a similar complainant application. It is the conduct that matters. It is possible that the same complainants will share similarities and dissimilarities. If portions of a complainant’s evidence align with portions of another complainant’s evidence to the requisite degree after appropriate assessment, the application should be granted. It is the conduct that must align, not the identity of the declarants.

[217] In the result, the application to admit similar fact evidence will be granted. The evidence across counts, and from the extrinsic witnesses, as demarcated by the categories and within each category, will be admissible to rebut potential defences, to help prove the actus reus of each complaint, and to bolster the credibility of each complainant.

Released: 2 December 2024 Signed: Justice S. G. Pratt