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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 18 September 2025

Court File No.: Windsor 22-11090

BETWEEN:

HER MAJESTY THE KING

— AND —

JEFFREY YOUNG

Before: Justice S. G. Pratt

Heard on: 29 November 2023; 16, 30 January; 2, 6-9, 12-14, 20 February; 25-28 March; 1, 8 August; 8 November; 2 December 2024; 8, 9 January; 5, 12, 26 March; 2 April; 7, 9 July 2025

Reasons for Judgment released on: 18 September 2025

Counsel for the Crown: Delia Greco and Elizabeth Brown

Counsel for the Defendant: Julie Santarossa

Justice Pratt:

TABLE OF CONTENTS

• Introduction
• The Law
• Admissions
• The Evidence
  • J.S.
  • J.P.
  • A.L.
  • A.R.
  • S.D.
• Extrinsic Witnesses
  • E.S.
  • C.M.
• The Expert's Report
• The Defendant's Evidence
• The Result

Introduction

[1] In 2010, the Defendant Jeffrey Young began working as a Registered Massage Therapist. He held that designation until the end of 2019. After that, he worked as an unregistered masseur out of his house. This trial involves complaints made by several of his former clients, both from the clinic where he worked and from his home operation. Over the course of this lengthy trial, the complainants, all female, variously described touching and exposure of their genitalia and breasts unrelated to any massage treatment they had consented to. These allegations range from 2013 to 2021. The Defendant also faces one count of mischief arising from a claim that he cut a tree on one complainant's property without her permission.

[2] The Crown brought a successful similar fact application at the close of its case. For reasons reported at 2024 ONCJ 623, I granted the application not for all complainants across all counts, but in relation to specific categories of conduct where I found sufficient similarity. My analysis of the evidence in making my ultimate decision in this case will be informed by this ruling.

[3] Counsel for the Defendant urges me to find that the complainants are not credible. She points to what she says are inconsistencies in their evidence and to the lack of memory shown by some of them. On that basis, the defence argues I should find the Defendant not guilty of all charges. Alternatively, it is argued the Crown has not shown the touching in question was anything more than fleeting and entirely accidental. At most, it was misconstrued by the complainants and does not amount to criminal conduct. Regarding the mischief, the defence admits he cut the tree, but says he'd done something similar to the tree in the past with no complaint. Further, there was no intent to damage the tree.

[4] Crown counsel argues that each complainant was credible and reliable. Any lapses in memory can be accounted for by the passage of time since the incidents. While the witnesses were not perfect, their evidence is sufficient, particularly when viewed through the lens of the similar fact ruling, to prove the Defendant's guilt.

The Law

[5] I remind myself that the Crown bears a significant burden in this case, as they do in all criminal cases. A defendant can only be found guilty of an offence if the Crown proves that guilt beyond a reasonable doubt. This principle is central to the Canadian legal system. As Justice Cory stated at paragraph 13 of R. v. Lifchus, [1997] 3 S.C.R. 320:

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is inextricably linked to the presumption of innocence. That jurors clearly understand the meaning of the term is of fundamental importance to our criminal justice system. It is one of the principal safeguards which seeks to ensure that no innocent person is convicted. The Marshall, Morin and Milgaard cases serve as a constant reminder that our system, with all its protections for the accused, can still make tragic errors. A fair trial must be the goal of criminal justice. There cannot be a fair trial if jurors do not clearly understand the basic and fundamentally important concept of the standard of proof that the Crown must meet in order to obtain a conviction.

[6] At paragraph 39 of that decision, Justice Cory offers a sample jury charge that might assist in defining the concept of beyond a reasonable doubt:

The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.

What does the expression "beyond a reasonable doubt" mean?

The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

[7] The Lifchus decision remains good law in Canada and is still cited regularly on this point (see: R. v. Smoke 2025 ONCA 519, R. v. McLeod 2025 ONSC 4319, R. v. Radmehr 2025 ONCJ 387).

[8] The standard of beyond a reasonable doubt applies only to the elements of the charged offence. The Crown need not prove every piece of evidence to this level. It is only the allegations fundamental to the offence that require such proof.

[9] Crown counsel has referred to an absence of evidence that any complainant had a motive to fabricate her allegations. The exception to this statement would be J.S., who defence argued was motivated to fabricate her allegations as a result of the incident that brought about the charge of mischief. I will address that specific point when I review J.S.'s allegations.

[10] A trial court must be very careful in dealing with the issue of motivation to fabricate. The Court of Appeal for Ontario considered this difficult area of the law in R. v. Polemidiotis 2024 ONCA 905. Justice Copeland warned of three potential problems. First, I must remember that even if I find no evidence of a motive to fabricate, that does not equate to a positive finding of no motive to fabricate. Second, I must be careful not to expect the Defendant to provide a motive for the complainants to fabricate. This would shift the burden that is borne exclusively by the Crown and require the Defendant to offer reasons he should be acquitted. Finally, a lack of evidence of a motive to fabricate does not inexorably lead to a finding that a witness is telling the truth. It is a factor that goes into the whole of the credibility and reliability assessment. It is not dispositive.

[11] Rather than repeat this caution with each review, I will state at this point that I have found no evidence of a motive to fabricate the allegations of any complainant (I will address the motivation of the property damage as related to J.S. when I consider her evidence). That there is no evidence of a motive to fabricate regarding any of the complainants is a factor that inures to their credibility but does not cause me, on its own, to accept their evidence.

[12] The essential elements of sexual assault were set out by the Supreme Court of Canada in the case of R. v. G.F. 2021 SCC 20. At paragraph 25, Justice Karakatsanis stated:

The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent: Ewanchuk, at para. 25; R. v. Chase, [1987] 2 S.C.R. 293. The first two elements are determined objectively, while the third element is subjective and determined by reference to the complainant's internal state of mind towards the touching: Ewanchuk, at paras. 25-26. At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent: Ewanchuk, at para. 42. The accused's perception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent: R. v. Barton, 2019 SCC 33, at para. 90.

[13] The elements of mischief, as particularized by the Crown in this case, are:

(1) Wilful damage (2) Without legal justification or excuse (3) Without colour of right (4) Property of the complainant

[14] All of these elements must be proved beyond a reasonable doubt to merit a conviction on that count.

[15] Finally, as this trial included both inculpatory and exculpatory evidence, I must apply the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742. If I believe the evidence that exculpates the Defendant, which may come from him directly or from any other witness, I must acquit him of the related count or counts. If I do not believe that evidence but it nonetheless raises a reasonable doubt, I must likewise acquit him. If I do not believe, nor am I left with a reasonable doubt by the exculpatory evidence, I must determine if, on the basis of the evidence I do accept, the Crown has proved one or more counts beyond a reasonable doubt. Only if the answer to that question is yes should I enter a conviction.

[16] I remind myself that the Defendant's conduct may be unusual, objectionable, or not in keeping with standard massage therapy practices without rising to the level of criminal conduct. The Defendant is not on trial for being a sloppy or inefficient practitioner, or a bad neighbour; he is on trial for multiple criminal offences. He is presumed innocent of those offences unless the Crown is able to rebut that presumption beyond a reasonable doubt.

[17] In these reasons, I will consider the evidence one complainant at a time. I cannot, however, assess the Defendant's evidence in a series of silos. I am entitled, and indeed, required, to assess it as a whole. While he deserves a separate assessment as to each complainant's allegations, that assessment must be informed by my overall appraisal of his credibility and reliability. The same must be said for the complainants' evidence. While I will consider each in turn, all witnesses, whether for the Crown or defence, must be evaluated against all the evidence heard in the trial.

[18] After reviewing all the evidence and the submissions of counsel, I find I reach different conclusions on different counts. The Defendant will be found guilty of some counts, but not guilty of others. I will provide my specific findings in the reasons that follow.

Admissions

[19] At the outset of trial, jurisdiction and identity were admitted. Further, as the trial progressed, several anatomical diagrams were introduced by the parties on consent, as were photographs of the backyard where the mischief is alleged to have occurred. The Crown also took no issue with the filing of various educational materials by the defence.

[20] The Crown also sought to amend two counts to conform to the evidence. The date on count 3 was amended to read from 1 – 6 July 2021, and the start of the date range on count 10 was amended to read 2013. These amendments were made on consent of the defence.

[21] As well, two agreed statements of fact were jointly filed, together with an expert's report.

The Evidence

[22] I will review the evidence of each complainant. Before I do, I pause to note that the assessment of witness credibility in a similar fact application is very different from the assessment carried out when determining a verdict. At the application stage, a judge must only be satisfied that the proposed evidence is reasonably capable of belief (see: R. v. Handy 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. Larsen [2012] N.W.T.J. No. 47 (C.A.)). It need not be accepted as proof beyond a reasonable doubt for an application to succeed. Conversely, that higher standard must be met when determining if the Crown has proved its case. In the result, while I will borrow heavily from my recitation of the evidence set out in the similar fact ruling, I will necessarily supplement it with more detailed evaluation as the standard at this stage is much higher.

[23] The evidence heard and filed in this case has been voluminous. If I do not refer specifically to any one piece of evidence in my analyses, that does not mean I haven't considered it. I have reviewed all the evidence in this trial to come to my decision, whether or not I explicitly refer to particular pieces of it.

[24] In recounting each complainant's evidence, I will quote from the summaries found in the similar fact ruling. In each case where an indented summary is quoted, that is the source.

J.S.

[25] The Complainant J.S. first became a patient of the Defendant in 2014. She was also the Defendant's neighbour.

[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."

[26] J.S. is also the complainant on the charge of mischief. As to that count, she testified that when she and her husband were out of town, someone significantly cut back the large tree in their backyard. She had testified, and it was not contested, that her backyard shared a fence with the Defendant's. The tree was near her property line. She testified that when they returned home, her husband asked if she'd seen what had happened to the tree. When she looked, she saw that the left side of the tree (the side facing the Defendant's property) had been severely cut back. In her words, it was "basically telephone-poled". Exhibits 4 and 5 were photographs taken by J.S. in October 2021. They show the tree in question as she said it looked on their return home. Exhibit 4 shows a large, mature tree with significant growth on the right side of the trunk. It is a tall tree, extending well past the height of the structure behind it, identified by J.S. as their shed. The left side of the trunk has one branch that extends back and over that structure, but no other branches are present. Instead, there are several nubs where it seems branches were cut off, flush with the trunk. Exhibit 5 is a closeup of the tree, showing the cuts made at the trunk. The result is a very lop-sided tree with no growth on the left side. J.S. confirmed in her evidence that the Defendant's property was to the left of the photographs.

[27] On seeing what had been done, J.S. confronted the Defendant over text. These texts, together with many others, were filed as exhibits.

[28] The message exchange began, according to the exhibit, the evening of 7 October. At the times noted, J.S. wrote:

7:44:25 Hi Jeff, we got home from vacation yesterday and noticed you severely butchered our beautiful maple tree. It looks awful and you cut 6 feet into our property line. You never had permission from us to do this. What's going on? You can't do that. It's illegal and destruction of property.

7:45:35 Like who does that?

7:49:03 I'm calling a lawyer in the morning. Just terrible.

[29] Later that evening, the Defendant responded:

10:51:32 Oh my dear!

Kim and I are so sorry you're feeling that way.

Please understand that Kim Emma and I all have very severe allergies to that tree. It's been an absolute nightmare for many years now. We get irritated skin eyes and sinuses from the pollen. Just terrible. Last year was a doozy. Kim and Emma were helping me do the annual cleanup of the pruned and broken off branches leaves and seed pods and we all had a severe reaction. Kim and Emma gave up and I had to finish myself :(

I have to take an allergy pill then immediately after the cleaning up I jump into the bath scrub off as much pollen as I can and use eye drops and a nasal spray.

I can't tell you how many times Kim has cursed the previous owners for selfishly planting a giant sycamore (that grows up to 120 feet tall and 80 feet wide) only 8 feet from the property line.

What kind of people do that? They were terrible neighbours.

We can't even use part of our yard because of the allergens from that tree but we've just gotten used to avoiding it. We've never said anything to you guys about it because you didn't plant it and we have always tried to be good neighbours. We love trees but as the tree gets bigger though our allergic reactions are getting worse. Every year we have to cut the limbs that are growing onto our property. It's not a Maple tree it's a Sycamore tree and the branches grow 3-4 feet each year. This trimming task has been going on for at least 10 years. I'm so sorry that you're [sic] feelings are hurt about the tree. We didn't know you cared about the branches growing towards our yard. We just wanted to trim it back so we don't have to deal with so many allergic reactions it creates. It's a super fast growing sycamore and it will fill out again.

Please accept our most sincere apology for trimming too much and please don't let this tree trimming ruin our relationship Kim often says your [sic] the best neigbors anyone could dream of and I agree!

In case you didn't know we love you guys and think you are awesome [heart emoji]

[30] In the exchange that followed, the Defendant brought up that he'd done some trimming of the tree with J.S.'s knowledge two weeks earlier. She agreed but said his trimming had stopped at the property line. At no point had he gone onto their property to cut any branches.

[31] I note from the photographs that the fence marking the dividing line between the properties does appear to be 6-8 feet from the trunk of the tree, in keeping with J.S.'s estimate of six feet and the Defendant's text, which referenced a distance of eight feet, and testimony, which referenced six feet. The cuts to the branches were done at the trunk, and so were well within the S. property line.

[32] In cross-examination, J.S. agreed that the Defendant had cut the tree in the past, but she was adamant he'd never cut past the property line. She also testified that she had never been told anything about allergies from which the Defendant's family may have suffered.

[33] It was put to her that she was so angry about the tree that when she reported it to police, she also concocted the sexual assault allegations. She denied that suggestion, pointing out that her texts where she told him his massages had left her feeling violated and vulnerable had been sent months earlier.

[34] In cross-examination, J.S. acknowledged she'd gotten along reasonably well with the Defendant and his family from the time they became neighbours. She agreed that when she could no longer use her benefits to pay for treatments, she continued and paid out of pocket. He was, in her estimation, an effective and caring practitioner.

[35] She confirmed signing consent forms for the massages performed at Mifflin Chiropractic. Beyond that, she agreed she was fine with the Defendant massaging areas like her groin, thighs, and glute muscles, as those were areas she specifically wanted him to treat.

[36] She testified to wearing underwear for all treatments until May 2021. She agreed it was her choice to wear it or not, but said she felt pressured not to wear them as he'd told her the massaging would be easier without them. On the first day she did not wear underwear, she said she took them off unintentionally along with her pants. When she told him and asked him to leave so she could put them back on, he told her she could keep them off if she wanted as it would be easier to do the massage. She felt pressured to keep them off as otherwise she felt it would show she wasn't trusting him. She kept them off. She denied she'd simply forgotten to wear underwear that day. It was suggested to her that when she told him she'd forgotten to wear it he gave her time and she put them back on. She denied that suggestion.

[37] Counsel asked about her statement to police, wherein she said there was an occasion "where I forgot to put underwear on". She agreed she'd said that to police but clarified and said she meant that she forgot to put it on when she went onto the massage table.

[38] She agreed with the suggestion that she was generally a vocal person who can stand up for herself but qualified that by saying that she's shy and only speaks up when she has to. There were times, she said, when she didn't have the courage to speak up to him when she felt uncomfortable. Times when she wanted to say something but didn't, or when she froze.

[39] Regarding the hip thrusting incident, J.S. testified that the Defendant did not seek permission to perform that maneuver beforehand and offered no explanation for why it was done. She did not ask questions as she was, in her words, speechless. She disagreed that he did ask for permission and explain to her that the move would be useful for loosening the SI joint.

[40] She did not ask him about this after the massage as she wanted to believe there was a medical reason for him doing what he did.

[41] J.S. was also asked about a time when the Defendant left his hand sitting in the crease near her genitals. It was suggested to her that he was employing myofascial release and had been applying pressure to the area. She disagreed and was clear that no pressure had been applied. She acknowledged that in her statement to police she had offered that he might have been trying to find a pressure point, but said in her testimony that was simply her trying to assign a reason to his action. She said again that he would leave his hand there for at least ten seconds.

[42] She was asked about the Defendant using only a washcloth to cover her vaginal area. She repeated that she was on her back with her feet flat on the table and her knees bent. She testified that her vagina was uncovered for the purpose of him removing the proper draping and replacing it with the washcloth. She agreed she didn't say anything when it happened, as she didn't want him to feel awkward. Counsel asked if it was really his feelings that she was concerned about, and she replied she wished she'd said something. As she said, "lesson learned".

[43] It was put to J.S. that she referred a co-worker, C., to the Defendant. She testified that C. had already been to the Defendant for treatment and that she simply gave her his new number. It was suggested that had events happened as she described, she would not have referred another female patient to him. She said that at the time she gave her his number, while there had been some uncomfortable incidents, she was still trying to rationalize them and downplay them. She did testify that had she been asked for the referral after the incident where he pulled the towel off her chest, she would never have given it.

[44] As to the incident where the Defendant allegedly circled his arms around and under J.S.'s leg and moved in a see-saw motion, she confirmed that she verbalized, "whoa whoa way too close". It was suggested to her that by saying "too close", she was tacitly saying there was no actual contact. That is, had there been actual contact with her vagina, she would not have said "too close", she would have complained of the actual contact. The witness testified she was stressed and nervous when she said what she did, and that is just what came out.

[45] I accept that evidence.

[46] I do not place any weight on the semantics of "too close" and actual contact. The incident was a surprise to J.S. She reacted immediately, with no time given to choosing the right words. I do not take anything from her choice of words made in that moment.

[47] She was asked about continuing to see the Defendant even after the inappropriate incidents. She testified that she believed once she started wearing underwear during the massages again, nothing more would happen. She did not feel there was any chance of further problems. This is from her cross-examination on 9 February 2024:

A. Like, he's not somebody that – that scared me at the time. Like, I wasn't scared that he was going to try to force my underwear off or something terrible. Like, I didn't feel unsafe in his house. I didn't feel like my safety at the time when all this happened, was in jeopardy.

[48] This answer reflects much of J.S.'s testimony. She did not appear to be going out of her way to further incriminate the Defendant. She was unequivocal in praising his abilities as a massage therapist. She relied on him to help her achieve her athletic goals and trusted his expertise. It wasn't until the events of 6 July, when she said he pulled the towel off her chest and later asked about feeding her baby that she was certain he had bad intentions.

[49] When asked about that final incident, where the towel was pulled off, it was suggested that the towel came off accidentally when both she and the Defendant pulled at it simultaneously. She disagreed. It was agreed by counsel, however, that the Defendant asking if she had to go home to feed her baby was not included in her statement to police (though I note in his own evidence, the Defendant admitted to making that comment).

[50] J.S. was asked about feeling pressured to return to the Defendant for more treatments. She testified to his actions causing her to feel that pressure. Following the 6 July massage (where she said he pulled the towel off her chest), the two exchanged text messages. He asked her how her run had gone that day and she replied she'd gotten through it but was still having an issue with her stomach. She sent him pictures of cats from her backyard. They then wrote the following. I have not included times as they are not relevant to the exchange:

YOUNG: See you tomorrow at 9am?

J.S.: I'm out of cash! I'm going to see how it is tmw and go from there :) Thank you though !

YOUNG: Ok sure thing

I can lend you $20 too lol :)

J.S.: Thanks Jeff! I'm going to see if I can get rid of it and if I can't I'll set something up :)

[51] She was asked about carrying on a normal conversation after all that had happened. She said she didn't want to "ruffle feathers" as the Defendant was her neighbour and she didn't know how saying something might affect her or her family.

[52] Four days later, she texted him again. From 11 July, these were the messages:

J.S.: Hey Jeff, my friend K. (rmt), seen me running the other day and we got talking and she agreed to take over my massage therapy treatments. This way I can use my coverage and save some money. As you know running can be a very expensive sport and this will definitely help out! Just wanted to thank you so much for all the help thus far in my running journey

YOUNG: Oh J.

I can understand you need to do what is best for you and your family. I'm sorry that you have to go to someone else and I'm sorry that I couldn't fill the role that you needed on your journey. My sincere apologies to you. Wishing you all the best and thank you so very much for all your compliments. You made me feel like I was special and I helped you in a way no one else could. That made me want to work even harder to help you be your best

Wishing you all the best

J.S.: The thing is the last 2 massages have not been professional. Left me feeling violated and vulnerable. I can't have that. It didn't sit well with me. I have to go with my gut and change things up.

YOUNG: OMG I'm so sorry J.!

I feel terrible for that. Please forgive me for making you feel that way :( You should never have to feel that way. I had no idea! I want you to know that Im [sic] terribly sorry. I will do my best if you feel it in your heart to give me another chance. I don't expect you to. Please let me make this right or at least apologize to you in person.

J.S.: I accept your apology Jeff. Thank you for that.

[53] I pause to observe that it is odd to me, when told he made her feel violated and vulnerable during massages, he never asked her what she was talking about. He never asked what specifically made her feel that way. He just asked for forgiveness and another chance.

[54] She repeated in cross-examination that after she told him she would be going elsewhere for massage therapy he came to her house. She said he gave her some produce from his garden. He had tears in his eyes and told her half his life ended when they stopped working together. All of this led her to feel pressured to return to him.

[55] There was no further contact by text until 24 August, some six weeks later, when the Defendant wrote:

YOUNG: Hi!

I hope you are doing well!

I'm here for you if you need anything

Even to talk

[56] Further texts were exchanged as the Defendant left more produce for her. She texted her thanks. In her evidence, she said she was trying to keep the waters peaceful and live successfully as neighbours.

[57] On 30 August, the Defendant texted her again:

YOUNG: Hey J.!

Hope your [sic] doing great!

I found this on my phone and didn't know I had it lol

Check it out!

Hey Jeff, it's me J.! I have T.'s phone. I just ran the race if [sic] my life today. Full marathon in 3:30:33! I never thought I could run that fast :) Although I narrowly missed qualifying for boston I'm so happy they tightened up the times this year. If it wasn't for that I would have never aimed for 3:30 A huge thank you goes out to you! I really couldn't have done it without you :) Thank you so much Jeff! You are an amazing massage therapist and kept me going through the training cycle

I can't tell you how great it felt to receive that note from you!

Its like an award for a year of hard work for you and I :)

I can only hope that you make me part of your team again!

Maybe I can take care of your feet and monitor your posture and do fascial stretching?

I want you to be your best so I'm here for you if you want me to help

[58] She did not respond to this message.

[59] The next text from J.S. came in October and involved the cutting of their tree.

[60] When asked about the cutting of the tree in cross-examination, she agreed that while he had cut the tree in the past, it had only been the portion on his side of the fence. Prior to 2021 he had never entered their property to cut the tree. She agreed he had done other things for them in the past, like shovel their driveway or fix the lock on their gate.

[61] In his testimony, the Defendant addressed the allegations made by J.S.

[62] Starting with the first massage where she was not wearing underwear, he testified that when he came into the room that day she told him she'd taken them off. He said he was not comfortable massaging her if she'd done it accidentally, and left the room so she could put them back on. When he returned two minutes later, she told him she'd decided to keep them off. He told her he'd use extra draping to ensure she was covered. He testified that at all times, she understood her draping and clothing options.

[63] He was asked about the massage where he lifted J.S.'s hips up off the table. He called it a joint mobilization technique. His description differed from J.S.'s. While she spoke of a thrusting movement where he lifted her hips off the table and moved her up and down, he spoke of a pressing movement meant to open up her sacroiliac joint. He began with lighter presses and gradually increased the weight he put on her with a rebounding movement. He was adamant that they discussed the procedure beforehand and that she was agreeable to it. He said he checked with her through the duration of the movement, 8-10 seconds, and that she never expressed any discomfort.

[64] He confirmed this was the first and only time he performed this technique on her. As he determined her SI joint was in good shape, there was no need to do it again.

[65] While the descriptions of this encounter varied between the parties, I find they can be reconciled. It is entirely possible that in using what he called a rebounding technique and pressing repeatedly on J.S.'s hips, the Defendant could have given her the impression that he was actually lifting her up off the table. She said he had both knees up on the table, while he said he only had one in that position. She said it went on for almost a minute, he said it was 8-10 seconds. I don't believe anything turns on these specifics. In the result, I cannot find beyond a reasonable doubt that this action was undertaken without consent and with the purpose of violating J.S.'s sexual integrity. This incident cannot be the basis for a finding of guilt.

[66] He addressed the incident where J.S. said he rested his hand near her genitals for an extended period for no apparent reason. He testified that this was done as part of a myofascial release technique, and that he was using his hand to search for any areas of restriction. This required subtle movements and, he said, a deft touch. He said she was draped completely except for her right leg, which was uncovered up to the hip area. At the time, J.S. did not express any discomfort with this technique.

[67] Again, I find the difficulty here to arise from contrasting interpretations. It would have been better if the Defendant had told J.S. why he was doing what he was doing as he was doing it. I cannot, however, reject the explanation given in his testimony. I find this incident cannot form the basis for conviction.

[68] The Defendant was asked about his use of a washcloth to cover J.S. He testified that he never used washcloths for that purpose. He only ever used towels that measured approximately 30" x 16", one of which was filed as an exhibit at the trial. He denied ever using a washcloth to cover her vaginal area.

[69] As to the alleged touching of J.S.'s vagina during inner thigh massage, the Defendant denied any intentional contact. At most, he said, he may have made contact with the draping that was covering her.

[70] He testified to the relationship his family had with the S.'s. He said they got along well. He and his wife would often give them produce from their garden, and they would support the various school fundraisers the S. children participated in. On one occasion, he gave them a pool filter he'd obtained. J.S. was always thankful.

[71] The massage on 1 July was the treatment that included what J.S. referred to as the see-saw motion. The Defendant testified that she gave an "improper description" of what he did that day. Rather than circling her leg with his hands, he described a movement where one of his hands moved up while the other moved down on her hip flexor area. He said he was moving quickly, approximately three strokes per second. This only continued for 8-10 seconds as he could feel the area heating up from the friction. He stopped and asked if she was ok. He said she responded that she was, but that "it's just a little close". He said he told her he didn't mean to come close. She said she knew, and that he wasn't doing anything wrong. He said she then said that he was doing what she told him to do.

[72] The massage on 6 July, he said, was at her request. This is borne out by the text messages. She was having difficulty with a side stitch and asked if she could attend that evening. He agreed. He said she showed him where the pain was and physically guided his hand to the right spot beneath her ribs. When massaging that area, he said he had a towel over her chest. At one point he took hold of the bottom corners of the towel to adjust its position, using what he described as a "pincher grip". He said she grabbed the top corners of the towel at the same time and pulled upward. This caused him to lose his grip. The corner of the towel sprung upwards and left her breast uncovered, though he testified that he did not see anything before he took the towel back and returned it to where it had been. He said she said "whoa". He said he didn't know what happened, he had only been trying to get the towel under her ribcage. She said never mind, just go back to what you were doing.

[73] This differed from J.S.'s account. Her evidence was that removing the towel shocked her speechless. She covered herself with her hands and then with the sheet that had been on her lower body. She said he apologized. I would note that she testified to the towel being overtop of her chest and arms, which if true would make it difficult for her to have taken hold of the top corners of the towel, as the Defendant claimed.

[74] His own cross-examination seems to contradict his initial appraisal of her reaction. In chief, he said she simply said never mind and to get back to what he was doing. In cross he said he knew she was "flustered" about the towel flipping up. I'm not sure how to reconcile those two statements.

[75] He testified to their face-to-face interaction following the texts where she discharged him as her therapist. He said he was outside, and she came up to him. It appeared she had just come back from a run. He said she asked how he was doing. He said not very well, considering their last text messages. She told him she wasn't ready to talk then, but that she was now. She then said she would give him a hug but she was sweaty from her run. They then talked about why she felt violated.

[76] Her mention of a hug but for her being sweaty from her run, and about not being ready to talk then but being ready now, was not part of J.S.'s evidence.

[77] Regarding the tree, the Defendant testified to cutting it back on his property in 2015. He said the S.'s knew he was doing this as he'd pointed out to J.S. how the branches were hitting his shed.

[78] His evidence on cutting the tree centred on the fact that he'd done it in the past without controversy. He said the cuts he made in 2021 were the same as those he'd made in 2015. In 2021, he began pruning the tree when J.S. was present. He said he had a pruner on a long pole and that he cut branches "at the trunk of the tree". He told her to throw the branches to his side of the fence and he would collect them, but she said she'd take care of it. He couldn't complete the work that day as his pruner wasn't up to the job. He resumed approximately one week later. It was this second incident that led to J.S.'s anger.

[79] His text to J.S. on 7 October said, "No-one went behind your back and nothing was cut when you were away. The tree was trimmed 2 weeks ago when you were home." By his own evidence, this is at best incorrect and at worst untruthful.

[80] In his evidence, as I said, the Defendant focused on his past trimming of the tree because it was impacting his own property. The only time he mentioned allergies in his evidence was when he acknowledged the texts he sent. In the texts, he focused on his family's allergies as the reason he cut it back and made no mention of potential damage to his shed. As to past cuts, his text only said, "Every year we have to cut the limbs that are growing onto our property." There is no suggestion in his texts of prior cuts that went back to the trunk of the tree.

[81] In his own cross-examination related to J.S.'s allegations, the Defendant reiterated much of what he said in his evidence in chief.

[82] Regarding the hip thrust/SI joint incident, he said she told him the movement felt "a little weird". He did not follow up with her to ask what was weird about it. This exchange then took place:

Q. And you don't ask as her service provider, go, "What do you mean by weird?" That might be an injury. "What do you mean by weird?" What's "weird"?

A. I wasn't a service provider at the time, I was a masseur, not a registered massage therapist.

Q. You were providing her a service, Mr. Young?

A. Yes, I was.

[83] This exchange is notable not for his failure to follow up on what J.S. may have meant by the word "weird", but for his care in differentiating between a service provider and a masseur. It is certainly an inference available to be drawn in assessing the Defendant's credibility that he was framing his evidence in this way to lower the bar for what he was required to do.

[84] Crown counsel also asked him about his communications with J.S. Referring to the text messages, it was suggested that it was he who initiated most of the contact. He also booked her appointments sometimes without her asking for them. It was agreed there was a standing bi-weekly appointment every other Thursday. The 1 July massage was one of those appointments. Despite the schedule being bi-weekly, he told her on 5 July (Monday) that he'd booked her in for 8 July. When she asked him to postpone to the following Thursday (in keeping with the set schedule), he responded with "Okay I have you booked every Thursday lol! We have to get you to your max!" He testified that this was meant as a joke, as evidenced by his addition of "lol". I don't see how this is an attempt at humour as it's followed immediately by him saying he wants to get her to her max. In my view, it shows his involvement in booking her appointments even without being asked.

[85] He was asked about the tree pruning. He admitted he assumed he had the S.'s permission to enter their property and trim the tree. He agreed he never specifically asked for permission to trim it. He denied cutting it when he knew they weren't home, and denied that he did it out of anger over the end of their professional relationship. He testified to a memory of his 2015 conversation with J.S. where she looked at the tree, tilted her head up, and then looked back at him. She agreed he could cut the tree back. His memory of this event, ten years later, is remarkably detailed.

[86] That level of memory is noteworthy when compared to his lack of memory for other events. For example, he could not recall if J.S. attended for a massage on 8 July. He could not recall conclusively what he charged his other clients. He could not recall if, in his conversation with J.S. after the massages ended, he told her he'd been selfish. He could not say for certain if, after the 30 August text, they had a face-to-face conversation about him rejoining her treatment team. It is odd that he would not remember points like these but could recall with clarity J.S. tilting her head towards the tree and then looking at him.

[87] He was asked about the texts he sent J.S. in August. It was suggested to him that his messages were an attempt to continue his relationship with her. This is from 26 March 2025:

Q. All right. So, why are you texting her then on August 24th after a month and two weeks, "Hi, I hope you're doing well. I'm here for you if you need anything. Even to talk"? You're trying to continue a relationship with her, I'm suggesting to you?

A. Well, it was a long-term therapist relationship and I was - and I know how important it was for her to achieve her goals running marathons, and I - I was trying to make sure she had everything she needed.

Q. She didn't want your help anymore, Mr. Young and you knew it, right?

A. I disagree with that allegation.

[88] Remember, this text was sent in August, long after J.S. had told him she no longer required his services. On 7 July she told him she accepted his apology. There was no further communication between them after that until his text, quoted above, on 24 August. He knew then that she was seeing a new therapist. There was no "long-term therapist relationship" still in existence. Her clear words in her July texts, coupled with her silence afterward, made that readily apparent. His disagreement with the Crown's suggestion above shows his skewed and unrealistic view of their association at that point. It was over, but he clearly didn't want it to be.

[89] In the text he sent on 30 August, quoted above, he forwarded a text J.S. had sent in 2019 where she thanked him and complimented his work. This was a message he'd found from years earlier, harkening back to a time when they worked together. He sent it after she'd already told him she was ending their professional relationship and that his massages had made her feel uncomfortable. In his cross-examination he claimed the message "just popped up on my computer" and that he hadn't gone looking for it. In the text itself, however, he said, "I found this on my phone and didn't know I had it". I reject his evidence that this message simply "popped up" on his computer. As he told J.S. directly, he found it on his phone. The Crown's suggestion that he had scrolled back in his text messages with her and found the message is confirmed by the Defendant's own words.

[90] The Defendant then questioned whether the text record filed was complete. This is from 26 March 2025:

Q. Your client, right? When you send that text message, she does not respond, you'll agree with me there?

A. There's nothing in her - what was downloaded off her phone. I can't say something was - messages weren't deleted or whatever, that's what's available here.

Q. Well, tell us about the messages that we deleted that you know about, Mr. Young?

A. No idea. No idea.

Q. Well, wouldn't you have remembered if she responded and came back to you in terms of her care? Wouldn't that stand out in your mind?

A. Well, if that happened, I would definitely remember it.

Q. And it didn't?

A. No, but there could be other messages that are missing from here.

Q. You have a memory of any other messages? Her response to that?

A. No, I don't remember any messages.

[91] His questioning the completeness of the record is troubling. He immediately follows up that question with acknowledging he doesn't remember any other messages. So why question if some have been deleted? The inference he is asking me to draw is that J.S. actually did respond to his texts but perhaps those messages weren't included. There is no evidence the record is incomplete and he himself has no memory of any other messages that do not appear in the record. He is asking me to speculate on the basis of nothing. I decline to do that.

[92] Likewise, he was asked about any messages between 30 August and 7 October 2021. None appear in the record. When asked if he agreed there were no messages in that period, he responded by saying, "I can't be sure." He was then asked if he remembered any other messages from that period and he said no.

[93] One week later, in his cross-examination from 2 April, he was asked about suggesting some messages may have been deleted. This exchange occurred:

Q. But not like normal relations you had with her prior to this, meaning heart emojis, talking about her running, her physical health, that was all done, right?

A. The massage relationship and the things we discussed regarding massage was discontinued, yes.

Q. And heart emojis were discontinued, yes?

A. There were no messages.

Q. That you can remember, right?

A. Well, you have the full printout of J.S.'s phone and all the messages back and forth to her phone.

Q. You told us some might be deleted, Mr. Young.

A. Did I say some might be deleted?

Q. Yes.

A. I don't remember saying that.

[94] He suggests without any foundation that some texts between him and J.S. may have been deleted, and then just a week later forgets ever making that suggestion? I do not accept this lack of memory, especially given how good his memory apparently was for other events that took place years earlier.

[95] Returning to the tree pruning, he agreed with counsel that he did not have specific permission to go into the S. backyard to cut the tree in 2021. He said J.S. asked him to do it in 2015, and he assumed that permission was still in effect. They had not had any discussion in 2021 about him entering their yard to cut the tree back.

[96] I also heard from Kim Young, the Defendant's wife. Her testimony was primarily related to J.S. She testified to a massage where she learned J.S. wasn't wearing underwear. She said she was in the kitchen when the Defendant came out of the dining room (which was also the treatment room). She said he looked "concerned". She asked what was going on and he told her J.S. had taken her underwear off so he'd left the room to let her put them back on. Afterward, he told her she refused to put them back on. She then said he told her she decided not to put them back on. She never explained those two different statements. Her evidence, however, does corroborate the Defendant's that he left the room when J.S. told him she'd removed her underwear.

[97] She also testified to bringing produce to the S.'s, typically from July to September. She was asked in chief if she or the Defendant had done so in 2021 and she said she it was possible but she couldn't remember. In cross-examination, however, she said she had not done it in 2021 nor in the year before.

[98] Candidly, I do not believe Ms. Young's evidence adds very much to this case. I am somewhat troubled by her claim that the Defendant told her J.S. had "refused" to put her underwear back on (something the Defendant himself never testified to), and by the change in her evidence from chief to cross-examination regarding the produce. While I acknowledge she does corroborate the Defendant as I've noted, this corroboration is of less value than it might have been because of my concerns.

[99] In addition to the mischief, the Defendant faces three counts of sexual assault in relation to J.S. Counts 1 and 2 are between 1 May and 1 July 2021, while count 3 is from 1 - 6 July 2021. According to her evidence, the allegations of labial touching took place two to three times during the May – July timeframe, the see-saw motion took place on 1 July, and the pulling off of the towel took place on 6 July.

[100] I have considered J.S.'s evidence in chief and in cross-examination. I find her to be a credible and reliable witness. Her descriptions of events were clear and largely unshaken. She did not attempt to shade her testimony in such a way as to incriminate the Defendant as much as possible. She was factual and, in my view, gave an unbiased account. There were certain details testified to that were not in her police statement, but she explained their omission. Her testimony that the initial inappropriate actions only led her to try to shrug them off and not assume the worst is an entirely reasonable response for a person in that position. Massage therapy, even that carried out in a clinic by a registered therapist, is by its very nature an intimate interaction. It necessarily requires close physical contact. That contact can sometimes involve sensitive areas of the body. J.S.'s attempts to rationalize what she said happened are entirely reasonable.

[101] I reject the notion that J.S. concocted these allegations in retaliation for what happened with the tree. That suggestion is belied by the text messages she sent long before the tree incident.

[102] In addition, J.S.'s evidence must be assessed in light of the Crown's successful similar fact application. When I granted the application, I found the similar fact evidence "will be admissible to rebut potential defences, to help prove the actus reus of each complaint, and to bolster the credibility of each complainant" (see par. 217 of the ruling).

[103] J.S.'s evidence of vaginal touching is bolstered by the evidence of the complainants J.P. and A.R. J.P. testified to the Defendant touching her vaginal area twice. The first was a touch of her labia and the second was a touch of her vaginal opening. Both occurred during an inner thigh massage.

[104] A.R. testified that in the course of an abdominal massage, the Defendant rubbed her clitoris.

[105] The evidence from J.S. that the Defendant said he could do a better job if she wasn't wearing underwear was echoed by the complainants E.S. and A.R.

[106] Her evidence that the Defendant charged relatively little for his services, and ultimately offered to loan her money to continue seeing him, is similar to the evidence of S.D. and E.S. S.D. redeemed a one-hour massage gift certificate and received a massage of nearly three hours' duration. E.S. booked three one-hour massages. The second and third went on for far longer. In addition, when she told the Defendant she only had $500 in coverage, he told her she could pay whatever she wanted, even just $20 per massage. This was a significant reduction from his initial $70 per hour fee.

[107] J.S. also complained of being draped improperly. On one occasion she said she had only a small washcloth covering her vagina. On another, she said he suddenly pulled a towel off her completely, exposing her breasts. Improper draping was also complained of by five other complainants.

[108] A.R. testified to only having a cloth the size of a piece of printer paper covering her buttocks during massages. She also said both breasts were entirely exposed when he was massaging her chest, regardless of which side he was working on.

[109] S.D. testified to her breasts only being covered by a small washcloth. She also was concerned about her vaginal area being exposed given the way he stretched her leg out without proper covering.

[110] A.L. complained of her entire upper body being exposed during chest massages, with no covering at all.

[111] J.P. testified that the Defendant moved the sheet that had been covering her off her chest, exposing her breasts. She covered herself with her hands. He asked if she was comfortable, and she said no. He then gave her a small towel to cover her chest.

[112] Finally, C.M. complained that during a massage, the Defendant tried to pull the sheet that had been covering her entire body off of her. She said she held it in place with her arms.

[113] Of particular similarity with J.S., A.R. and S.D. both testified to the Defendant using a very small towel or washcloth to cover them during their massages.

[114] J.S. was also not the only patient who testified to continuing attempts by the Defendant to rekindle their massage relationship.

[115] A.R. ultimately blocked the Defendant's number given how often he was trying to contact her. He also tried, she said, to contact her over multiple social media accounts both during and after her time as a client.

[116] When C.M. questioned the Defendant's conduct, he became angry with her. When she said her doctor was recommending she reduce her massage visits, the Defendant told her to "stick up for herself" and insist on maintaining more frequent visits. When she tried to settle her final account with the Defendant, she said he threw the receipt at her.

[117] All of these witnesses assist in my assessment of J.S.'s credibility and reliability. In the areas I've noted, they corroborate her testimony and make the defence of accident less likely.

[118] In this analysis, and in all my analyses of the impact of the similar fact ruling, I am cognizant of the fact that by granting the application, I am not binding myself to accept the witnesses' testimony as true. While their accounts may assist each other in the ways I've listed, the burden remains on the Crown to prove each charged offence beyond a reasonable doubt. I am still free to accept all, some, or none of any witness's evidence, regardless of whether I view it through the lens of the similar fact ruling or not.

[119] I have indicated above the areas where I find the evidence of J.S. and the Defendant could both be true. An example is the SI joint mobilization incident. These incidents cannot form the basis for a conviction, and in her submissions, Crown counsel acknowledged as much. The counts related to J.S. relate to the alleged vaginal touching.

[120] I have considered the Defendant's evidence as it relates to J.S. He denied any intentional vaginal touching. Regarding the touches alleged from May – July, he suggested he may have touched the draping that he was using, resulting in J.S. feeling like she may have been touched. But, he said, he never intentionally touched her genital area. He disputed her evidence about the 1 July incident and said her description was not only incorrect but physically impossible. He offered his own explanation for the technique performed that day, and also testified to J.S.'s unremarkable reaction. As for the incident on 6 July, when she said he suddenly pulled the towel off her chest, he testified that he was as surprised as she was when it happened. He said it happened because they were both pulling on the towel and it slipped from his grasp.

[121] I turn to the analysis mandated in R. v. W.D., supra. Before I do, I can advise that while I will consider the Defendant's evidence when I address each complainant, I will also examine his evidence as a whole in greater depth later in these reasons.

[122] Having considered the totality of his evidence regarding J.S., I find I do not believe the Defendant. His answers were frequently non-responsive, requiring counsel to repeat her questions. His memory of events was comprehensive at times, and entirely deficient at others. He professed to remember his exact physical positioning when massaging J.S., including which hands were where and how long movements took, but could not recall if they ever had a conversation about him resuming his treatment of her after she'd discharged him. His memory was, overall, unreliable and frequently self-serving.

[123] In addition, the Defendant went to great lengths to explain his education and experience in massage and similar therapies. His answers were often very technical and detailed, even when the questions didn't require such a response. Throughout his testimony, it was clear to me the Defendant wanted me to understand how knowledgeable he was and how seriously he took his work. That such an experienced practitioner, scrupulous in his attention to his work, might have accidentally and carelessly touched J.S.'s vagina on multiple occasions is not believable.

[124] For the same reasons, his evidence does not raise a reasonable doubt in my mind. I remind myself here, as I do when assessing his evidence regarding all the complainants, that there is no burden on the Defendant to suggest an alternative theory that might reasonably be true. There is no burden on him to offer anything. The question I must ask myself at this stage is whether his evidence leaves me with a reasonable doubt.

[125] It does not. One example of his testimony that I reject as entirely implausible is his claim that when they met outside their houses, after she'd effectively fired him for inappropriate conduct, J.S. told him she'd give him a hug if she wasn't sweaty from her run. That is contradicted by the entire substance and tenor of J.S.'s testimony. The notion that she wanted to hug him is contradicted by the text messages where she described feeling "violated and vulnerable". In short, he was a difficult witness whose answers were often unconnected to the questions being asked. His memory ebbed and flowed throughout his testimony. His evidence does not raise a reasonable doubt.

[126] On the third stage of the W.D. analysis, I accept the evidence of J.S. that on at least two occasions from May to July, the Defendant touched her vaginal area. I also accept that on 1 July he performed a technique that allowed him to rub her vagina. While she gave consent for massage in general, I find as a fact that she never consented to her genitals being touched. I reject the notion that the touches were accidental. Finally, I accept her account of the 6 July incident. In pulling the towel off her chest and exposing her breasts, the Defendant committed an application of force without her consent that violated her sexual integrity. The Crown has proved counts 1, 2, and 3 beyond a reasonable doubt.

[127] As to the count of mischief, I find the Defendant did not have permission to enter the S. property in 2021 to cut the tree. He may have had that permission six years earlier, but there is nothing in the evidence to suggest that permission was ongoing. The Defendant himself agreed he simply assumed he could do it. J.S. had no issue with him cutting the portion of the tree that extended into his yard but was clear in her testimony that she never expected him to do more.

[128] The photographs filed show nearly every branch on the side of the tree that faced the Defendant's yard was cut back to the trunk. Looking at the photographs from 2015 and 2016, the 2021 cut appears to have been far more severe. Indeed, a comparison of the photos from 2016 and 2020 shows that the lower part of the tree doesn't look all that different. The 2016 photo is from a closer perspective so less of the tree is visible. The portion that overhangs the S. shed looks fuller in 2020 but not as full as it looked in the 2015 photo. Part of the problem in comparing the photos is the 2020 photo has significant shadows on the roof of the shed, making it hard to see exactly where the tree ends and the shadows begin. It appears that in 2015 the Defendant cut only the parts of the tree that were over the property line. In 2021 he went much, much further.

[129] The case of R. v. Toma [2000] B.C.J. No 1804 (B.C.C.A.) bears a striking similarity:

3 The appellant, Giuseppe Toma, owned the lot adjacent to the complainants' property. At the time the trees were damaged, Mr. Toma was having a house built on his lot. The other appellant, Harminder Singh Dhanowa, was Mr. Toma's construction supervisor.

4 The cutting down and pruning of various trees on the complainants' property was done by a utility arborist, Mr. David Chisholm, and his assistant. Mr. Chisholm testified that he was told by the appellants that the adjacent property owner had given his permission for the trees to be cut. Had permission been given, no criminal liability would attach but, in fact, the complainants had agreed to nothing more than an overhanging willow tree being trimmed.

5 On 24 May 1997, Chisholm and his assistant cut down the willow and four cedars on the complainants' property, and pruned branches from other trees including a dogwood, a maple and two firs up to a height of about 30 feet. The cutting and pruning on the complainants' property opened up a wide view of the sea from Mr. Toma's lot.

[130] At trial, Toma was convicted of mischief over $5,000, as was his construction supervisor Dhanowa. On appeal, Dhanowa's conviction was set aside in favour of a conviction for mischief under $5,000. The findings of the trial judge were otherwise upheld.

[131] In doing what he did, I find the Defendant damaged the S.'s tree. That it might eventually re-grow is not a defence. Based on the pictures filed, and the Defendant's own evidence, he cut several branches back to the trunk. Whether I choose his explanation that the overhanging branches were damaging his shed, or that the tree was a source of allergens, there was no justifiable reason to cut the branches back to the trunk. He could simply have repeated what it appears he did in 2015: cut the overhanging portions. Instead, he entered the S. property and caused significant damage to the tree. Was this in retaliation for J.S. ending their massage relationship? I find I do not have to answer that question. His motivation is not an element of the offence. He caused damage to the tree intentionally and without any permission. He will be found guilty of count 4.

J.P.

[132] J.P. saw the Defendant at Mifflin Chiropractic in 2015.

[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 expose her entire upper body as noted above. When she told him she wasn't comfortable, he gave her a small facecloth to cover her breasts. She estimated the cloth to be about the size of the Bible that was on the witness stand. I suggested it was approximately 5" x 7" and both counsel agreed. On that point, I have difficulty accepting her evidence. She went on to say that the cloth was used to cover both breasts, and that the Defendant would fold it over to expose one breast at a time. I'm not sure I understand how a cloth that size would be large enough to cover both breasts successfully, with enough excess that it needed to be folded over to expose one at a time. I conclude that J.P. is incorrect in her estimation of the cloth's size.

[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.

[133] J.P.'s evidence, as it relates to counts 5 and 6, involve two unwanted vaginal touches and one allegation of an unwanted breast massage.

[134] The inner thigh massages, which led to the allegations of vaginal touching, were undertaken on the suggestion of the Defendant. He told her the pain in her feet might be related to inner thigh tension.

[135] The butterfly position into which she said the Defendant guided her gave him access to her legs. She testified that the sheet covering her lower body (save for the leg being worked on) was not tucked in. She said it was laid on her. This led to some physical space between the sheet and her body. It was in this space, she said, where the touching occurred.

[136] Her memory of the touches is specific. The first touch was described as a swipe to her labia. The second was a grazing touch not to the labia but to her vaginal opening. She agreed that both were brief and that neither led to penetration. She did not say anything at the time as she wanted to believe they were accidents. While she agreed there may have been discussions about consent related to the inner thigh massage, there was "definitely not" any such discussion regarding touching of her vagina.

[137] J.P. marked on a diagram the areas she said the Defendant touched.

[138] After the massage with the touch of her vaginal opening, she told the Defendant she felt she didn't need inner thigh massages anymore. The appointments from that point focused on her upper body. It was then that he suggested massages to her rib cage, to open her ribs and let her breathe better as a runner.

[139] She then described the massage where she said the breast touching took place. That portion of her evidence began with her rolling over from her stomach onto her back. She testified that he held the sheet that had been covering her in such a way that she thought he could see her. When asked about her knowledge on that point by Crown counsel, she admitted that was only an assumption on her part.

[140] After she turned over, she said he folded the sheet down to expose her entire upper body as noted above. When she told him she wasn't comfortable, he gave her a small facecloth to cover her breasts. She estimated the cloth to be about the size of the Bible that was on the witness stand. I suggested it was approximately 5" x 7" and both counsel agreed. On that point, I have difficulty accepting her evidence. She went on to say that the cloth was used to cover both breasts, and that the Defendant would fold it over to expose one breast at a time. I'm not sure I understand how a cloth that size would be large enough to cover both breasts successfully, with enough excess that it needed to be folded over to expose one at a time. I conclude that J.P. is incorrect in her estimation of the cloth's size.

[141] It was argued in submissions that I had misapprehended J.P.'s evidence in the similar fact ruling. I found she testified to the Defendant uncovering both breasts simultaneously, but counsel said her evidence did not bear that out. Having reviewed her testimony, I can confirm I did not misapprehend her evidence. She did testify to the Defendant exposing both breasts at once, as set out above.

[142] While the Defendant did massage the muscles between her ribs when she was on her stomach, she said there was no such massaging when she was on her back.

[143] After the breast massage incident, she said she discussed her experience with A.L. She learned that A.L. had had a similar experience. They made the decision to cancel their upcoming appointments and stop seeing the Defendant. J.P. went back and forth in her mind over whether to report the Defendant to anyone, but in the end chose not to.

[144] In cross-examination, J.P. confirmed her attendances at the clinic. She said her treatment began with foot massages and there was also discussion of the Defendant massaging her abdomen to help break up scar tissue from a hysterectomy procedure.

[145] Regarding the touching of the labia, she agreed she did not know what part of the Defendant's hand made contact with her. It could have been the side of his hand, his palm, or one or more fingers. As she was looking at the ceiling at the time, she couldn't see.

[146] She was asked about what was used to cover her breasts during the chest massage. She maintained it was a facecloth and estimated it to be 5"x7". Counsel questioned if such a cloth would be large enough to cover both breasts. She said she just remembered that it was a facecloth. She was shown the 30"x16" towel that was made an exhibit and denied the towel used to cover her chest was that size.

[147] She was asked specifically about how the idea of a chest massage came up and whether she consented:

Q. And he suggested to you that he could massage the muscles in between your ribcage?

A. Yes.

Q. And you know those to be the intercostal muscles?

A. I do.

Q. And that's from his explanation?

A. Yes.

Q. Okay. Okay. And he told you that sometimes the muscles in between your ribcage get tight and constricted?

A. Correct.

Q. And it would be good to massage them to open them up, right?

A. Yep.

Q. Which can help with deeper breathing, right?

A. Yes.

Q. Which can help with athletics?

A. Yes.

Q. And that's why you agreed to the massage of the intercostal muscles?

A. Yes.

Q. Okay. And also, in that discussion he told you he would essentially be massaging the muscles in between your ribcage on your chest wall. And I'm going to define "chest wall" for you okay? From your collarbone down to the base of your ribcage into the – from your sternum basically to the side underneath your armpits.

A. It's possible, but I don't actually remember that conversation.

Q. Okay. So, that – again, that could have happened, you just don't remember?

A. Correct.

Q. And included in the chest wall is your breast tissue, right?

A. Sure.

Q. Okay. And so, based on that conversation, the two of you very well could have had a conversation that your breast tissue would have been touched for the intercostal muscle massage?

A. I don't recall, but possibly.

Q. Okay. So, it's possible that you did consent and agree to that, correct?

A. To having my breasts touched?

Q. Yes.

A. Possibly.

[148] She also said, as she did in her examination in chief, that she did not recall any rib massaging when she was on her back.

[149] It appears that in cross-examination, J.P. for the first time referred to the Defendant's actions in the chest massage as "cupping" her breast with his hands. She said he took her breast in his two hands and massaged like a loaf of dough.

[150] She also acknowledged she could not remember if the Defendant massaged the upper portion of her chest, from her collarbone to the top of her breast.

[151] J.P. was asked in detail about her discussions with A.L. She agreed they'd talked as they'd had similar experiences with the Defendant. She consistently denied that those conversations influenced her account in any way. While she did discuss with her new massage therapist that she'd been a client of the Defendant, she did not discuss the substance of the massages she received. She also confirmed she did not know or have any contact with any of the other complainants.

[152] The Defendant testified about his dealings with J.P.

[153] He agreed she initially came to him with a complaint of foot pain. After an assessment, he came to the conclusion that the right side of her pelvis was out of alignment and that this was causing her foot pain. He said he explained this to her and they agreed to his proposed treatment. He also embarked on treating her hysterectomy scar in an effort to promote "linear" scar tissue. He said she agreed to all of this, including massage of her inner thighs and hip flexors.

[154] When massaging the inner thighs, the Defendant said he first loosened up the area with lotion and gliding movements. After that, he would move to myofascial release techniques. He said the leg he was treating was bent and that he put a wedge-shaped block under it for support. He said her other leg was relatively straight during the first inner thigh massage, but that J.P. changed that other leg's position in subsequent massages. She bent that leg also, essentially mirroring the leg being worked on. He put another wedge under that leg to support it.

[155] The only part of her body that was uncovered at these times was the leg he was working on. The draping was tucked under her leg and hip. During the portion of the massage where he was using lotion, he estimated that he was moving his hands at a rate of three to four glides on her leg per second. He kept this up for approximately ten minutes. This would translate to between 1,800 and 2,400 glides on her inner thigh in that ten-minute period. He denied any contact with her genital area during this time. At most, he suggested he may have made contact with the draping, leading her to feel like she'd been touched. He said he had no intention of touching her genitals.

[156] He was also asked about massaging J.P.'s chest. He said he suggested the intercostal massage as she was a runner. They discussed how he would go about the "rib-springing" technique. He told her it would involve touching her chest and that he would make some contact with breast tissue. He would stay away from the fatty tissue of the breast, which either he or she would move out of the way. He said she understood and agreed to the treatment.

[157] As to the massage itself, the Defendant denied uncovering J.P.'s upper body after she turned from her stomach to her back. He said once she turned over, she was covered by the sheet he was using. He then explained how he replaced the sheet with a towel. The towel was placed near her neck. He held the top of the sheet and the bottom of the towel simultaneously. He would pull both down, leading the towel to take the place of the sheet.

[158] With the towel in place, he said he asked for permission to begin. She gave it. He then undraped one side of her chest at a time by folding the towel over. He worked on the intercostal muscles. He said he did touch breast tissue at the top of the breast but avoided the fatty tissue. At no time did he touch her nipple area as he would not be able to access the intercostal muscles that way. He estimated that he massaged each side of her chest for approximately ten minutes. He denied ever using a cupping motion in touching J.P.'s breasts, calling her evidence "completely inaccurate". He also disagreed that the draping he used was ever loose or could have led to him being able to see sensitive areas of her body.

[159] In cross-examination, the Defendant denied instructing J.P. to put both legs in what she called the butterfly position. He maintained that was her idea. Later, however, he suggested it may well have been his suggestion:

Q. No, but you didn't write notes, Mr. Young, about she went into the butterfly position herself, she told me it was more comfortable; that was not in your notes. This whole conversation.

A. I remember I had recollection of her just flipping into that position and putting her feet together.

Q. And…

A. I may have told her that it might be comfortable that way, I don't remember those specific little details.

[160] He denied any breast massage as described by J.P. He said there was no cupping or kneading of breast tissue.

[161] J.P.'s evidence must be assessed in the context of the similar fact witnesses relevant to her allegations. She has alleged vaginal touching. This was also alleged by J.S. and A.R. In particular, J.S. said the Defendant touched her vagina briefly while he was massaging her thigh. This is especially similar to J.P.'s testimony. This similarity can be used in assessing J.P.'s credibility, and in rebutting any defence of accidental touching.

[162] Likewise, she has alleged improper massaging of her breasts. A.R. and A.L. each made similar complaints. Their evidence can be used in the same way as it relates to this allegation.

[163] The Defendant has denied any intentional touching of J.P.'s vagina and touching her breasts in the way she described. If I believe or have a reasonable doubt based on his evidence, I must acquit him. If I have no such doubt, I must be satisfied beyond a reasonable doubt of his guilt based on evidence I accept.

[164] Dealing first with the breast massage, the Defendant has said he only ever massaged the intercostal muscles of her rib cage. To the extent that he ever touched breast tissue, it was incidental. He denied cupping her breasts in his hands or kneading them.

[165] I will turn to the third stage of the W.D. test first as the conclusion I reach obviates the need to address the first two stages.

[166] J.P. very candidly testified that she may well have consented to the Defendant touching her breasts in the course of the chest massage. I have quoted that portion of her evidence above. The balance of her evidence suggests she did not agree to the massage as she described, but I cannot ignore this part of her testimony. The Crown must show beyond a reasonable doubt that the breast touching was without her consent. In the end, I find it is likely the touching was indeed without her consent. Given her admission, however, I cannot make that finding beyond a reasonable doubt.

[167] As well, the idea that he cupped each breast with both hands was something she did not tell police. On its own, this addition to her account may not have caused me significant concern, but added to the potential consent issue, it underscores my reasonable doubt.

[168] On the issue of breast touching, J.P. is tantamount to an extrinsic similar fact witness. While her evidence on that point has not been accepted beyond a reasonable doubt, that does not mean it is entirely off the table. She has testified to conduct by the Defendant that falls under a similar fact category as set out in that ruling. Based on the law as set out in the "Extrinsic Witnesses" section below, her testimony is still eligible for consideration as extrinsic similar fact evidence if I accept it as accurate on a balance of probabilities. I have found it is likely the Defendant touched her breasts as she described without her consent. I accept her evidence on this point as being more likely than not, and so it will be included with other related similar fact evidence when I assess the credibility and reliability of other complainants.

[169] Turning to the alleged vaginal touching, I reach a different conclusion. In those incidents, J.P. was clear there was no consent, and consent was not argued by the Defendant. The Defendant's testimony was that the touching either never happened or was accidental and through the draping that was in place.

[170] I cannot believe the evidence of the Defendant. His testimony as to any potential contact with J.P.'s vagina was argumentative and often non-responsive. His memory of his own prior testimony seemed oddly unreliable, as when he questioned the Crown saying he testified to "quick" gliding movements on J.P.'s thigh. He had previously gone to some length to explain just how fast the gliding movements had been (three to four per second for ten minutes), but then didn't remember he'd used the word "quick"? This was similar to his testimony where he didn't recall suggesting the text records with J.S. were possibly incomplete. Rather than a genuine failure of memory, I find this was an attempt to obstruct the cross-examination.

[171] His testimony does not leave me with a reasonable doubt. His explanation of accidental touching through the draping is contradicted by J.P. I remind myself that a reasoned acceptance of contrary evidence beyond a reasonable doubt is a sufficient basis for rejecting the Defendant's evidence (see: R. v. J.J.R.D., [2006] O.J. No. 4749). In this case, I reject any notion of accidental touching. J.P. testified to two very clear incidents of skin-to-skin touching to two different areas of her vagina. His testimony does not leave me in doubt.

[172] I accept the evidence of J.P. on the issue of vaginal touching. Her testimony was clear and unshaken on cross-examination. I found her to be a credible witness who testified in a fair manner. When she was not sure of something in her evidence, she said so. As an example, she testified to the Defendant being able to see her when she turned over on the massage table, but quickly added that him seeing her was only her assumption. Her credibility is also strengthened by the similar fact witnesses. In the result, I find the Crown has proved the allegation of vaginal touching beyond a reasonable doubt.

[173] In both the similar fact application and the trial, the Defendant has raised the possibility of collusion between J.P. and A.L. It was argued that both witnesses should be viewed as less credible and reliable given the possibility that they coordinated their testimony. Given my finding on J.P.'s allegation of breast touching, which was the focus of the collusion argument, I give no weight to the issue as it relates to J.P. The remainder of her allegations were specific to her and not similar to those made by A.L. There is no basis for finding that J.P.'s testimony resulted from collusion. I will return to this issue when I consider A.L.'s evidence.

[174] The Defendant faces two counts related to J.P., counts 5 and 6. The counts are identical. Both allege sexual assault between 1 January and 31 December 2015. The Crown has not specifically said which incidents relate to which counts. On my view of the evidence, it seems clear the fairest way to deal with this issue is to ascribe the breast touching to one count and the vaginal touching to the other. J.P. did testify to two different vaginal touching incidents, however, and so conceivably each could be reflected in its own count. Given the Crown has not framed the counts in this way, I will interpret the evidence in a way more favourable to the Defendant.

[175] In the result, the Defendant will be found guilty of count 5 and not guilty of count 6.

A.L.

[176] A.L. also saw the Defendant at Mifflin Chiropractic in 2015.

[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.

[177] A.L. testified that the massages to her rib cage did not seem to be addressing tight muscles. This is from her examination in chief:

A. …it didn't feel like the rest of a massage feels where you're physically treating a knot or treating a tight muscle. It just felt different.

Q. Can you describe what you mean by it just felt different?

A. Uncomfortable. Not like – Not like uncomfortable like a pain, just it didn't feel like anything was being treated. It more just felt like being taken advantage of.

[178] She said the breast massages took place on at least two occasions, and estimated they lasted 5-10 minutes. Prior to the Defendant undertaking these massages, she said they discussed the reason for massaging her rib muscles. She agreed she gave consent to that being done. She did not consent, she said, to her breasts being massaged.

[179] She agreed that conversation between them continued throughout the breast massages.

[180] She described the Defendant's actions at the relevant times. She said she was covered by a sheet, but that after they discussed the rib massage, he pulled the sheet down. He exposed her entire upper body. She said he massaged one breast at a time and that the other breast remained uncovered throughout. The massage involved the entire breast. A.L. was asked about her rib muscles being massaged at this time. This exchange is also from her examination in chief:

Q. When you agreed to having your rib muscles massaged, in your mind what did having rib muscles massaged mean?

A. I thought there would be more direct pressure applied between my ribs, so obviously knowing that my breasts are in the way of that. I thought it would be more methodical, like starting at the top and working your way down throughout my ribcage and there might be just a little bit of breast tissue touched, whereas that never happened, it was always just massaging of the breasts.

Q. Were – do you recall whether or not your ribs were massaged?

A. I'm going to say yes just because they're in that area, but it never felt like that was the intention. When I was on my front and he was massaging my back, definitely you can tell that – when those muscles are being intended and reached, and it didn't feel like that from the front.

Q. Sorry, I didn't get that. Can you say that again? You said, when you were on my - how were you laying?

A. So, when my breasts are massaged, I'm laying on my back. But when, when I would lay on my front and he would massage my back, like it's – you can definitely tell when your rib muscles are being massaged. Like it's a very firm pressure that's applied. When I was on my back and that same manipulation was supposed to be happening to my ribs from the front, that's not how it felt. It was just centered on the breast area, and it wasn't like a direct pressure, it was more of a kneading. Yeah.

Q. Were there – when you were laying on your back, so with your breasts facing up or out, were any part of your ribs massaged? So, that are not – that were not connected to your breast; because I asked you that question and you said, well, I have to – your answer was "I'm going to say yes because they're in that area. Never felt that was the intention." So, my question is, was there any part of your ribs, that are not connected to your breasts, massaged when you were laying on your – on your – laying on your back.

A. No.

Q. and when I say "connected", meaning that you can – you can get to without touching breast tissue?

A. No.

[181] A.L. was asked what areas of her breasts were massaged by the Defendant. She explained that it was the entirety of both breasts, including the nipples and areolas. She was given a drawing of a breast to indicate what areas were massaged, and circled the entire thing.

[182] Crown counsel asked A.L. about the Defendant's draping of her body when she would move from faceup to facedown. She said she had no issue with his conduct on that point. She also testified that he helped her with the issues she brought to him.

[183] In cross-examination, A.L. described the motion the Defendant used when massaging her breasts. Rather than a "linear" motion that went along her ribs, she said the Defendant moved his fingers in a firm, circular motion. As stated in the summary above, she likened it to dough being kneaded.

[184] Counsel put her police statement to her. When asked by police to describe how the Defendant massaged her breast, A.L. said he was "definitely acting like he was trying to get to the deeper tissue". When asked if he ever worked on her rib cage, she answered yes. In her testimony, A.L. agreed that it did seem like he was trying to get to deeper tissue, but said he never worked on any of the intercostal region above, below, or beside her breasts. It was always only on the breast tissue. She clarified her affirmative answer to whether he ever worked on her rib cage by saying she was referring to his work while she was on her stomach. In that position, she said, he did work on her ribs on the back side of her body.

[185] She agreed she never used the word "circular" when describing the Defendant's hand movements to police. She said that to her, kneading is done in a circular motion. She did use the word kneading in her statement, but did not used the adjective circular. Her evidence is that a circular motion is part and parcel of a kneading motion.

[186] On further cross-examination, A.L. confirmed she did not voice any discomfort with the Defendant at the time of her massages, and agreed he would not have known anything was wrong. She also agreed his touch of her nipples was brief and part of the overall breast massage. That is, he did not focus on touching the nipple area.

[187] The Defendant also testified as to his dealings with A.L.

[188] He said she came to him with upper back, neck, and shoulder pain as a result of her work in a hardware store. She spent a lot of time at a computer and so had some stiffness. They discussed her needs and potential treatment.

[189] Regarding massage of her intercostal muscles, he said it may have been A.L. who first suggested it. He said they discussed the nature of intercostal work and he told her it could be, in his words, invasive and tender. He said he explained he would be touching the front chest wall, sometimes making contact with breast tissue. He offered her the choice between working through a sheet or directly on her skin. He said she indicated to him that she was "completely comfortable with me working directly on the skin and having her undraped."

[190] On the issue of who first suggested intercostal massage, A.L. said it was the Defendant who recommended the treatment to help with her athletic performance. In cross-examination, it was put to her that the Defendant offered an intercostal massage. It was never suggested to her that it may have been her idea. Again, this is important as it goes to the nature of the chest massage and A.L.'s state of mind when it happened. I note that in cross-examination, the Defendant himself agreed intercostal massage was his idea.

[191] The Defendant described the chest wall massage performed on A.L. He said her upper body was draped with a towel. He undraped only the side he was working on. He said he got her permission to move the towel before he did so. He worked on the front and side of her rib cage. He said he worked around the fatty tissue of the breast to get at the muscle underneath. When he needed to move her breast out of the way so he could access the tissue, he said he got her permission. He denied any contact with her nipples, saying that area was "off limits". When he finished the first side, he said he re-draped it and moved to the other side.

[192] He was asked if A.L. expressed any discomfort with this massage:

Q. Okay. All right. A.L. said that - never mind. Okay, and did she express any discomfort to you at all or being uncomfortable in any way?

A. No, she was the opposite. She was engaging and she was encouraging me to continue it, and it wasn't too painful for her. I was constantly checking in with her and we were in regular conversation throughout the whole time.

[193] According to him, not only was A.L. comfortable with what he was doing but she was actually encouraging him to continue.

[194] He testified that the chest massage performed on A.L. was the same as the one he did on J.P. In that description, he discussed beginning with superficial layers of the intercostal muscle and gradually working deeper into the tissue. He compared it to toffee, where it might first feel firm but eventually soften up with manipulation.

[195] He said that while he may not have had written consent for the touching inherent in the intercostal massages, he did have ongoing verbal consent from A.L.

[196] In summary, the Defendant has denied any inappropriate touching of A.L.'s breasts. He testified that at all times she was appropriately covered and that his touching of her chest area was only ever focused on reaching the intercostal muscles. At times, this required moving breast tissue out of the way, but he said he always had her permission to do that. He said she was a willing and encouraging participant in this treatment.

[197] As with the other complainants, I remind myself that A.L.'s evidence is supported by the other witnesses as categorized in the similar fact ruling. A.L.'s similarities are that 1) she presented as athletic, 2) she alleged her breasts were inappropriately touched, 3) she received a massage that did not accord with the explanation she was given, and 4) she was draped improperly at certain times. On all these points, other complainants have made very similar allegations. This can benefit A.L. in my credibility assessment, it can reduce the likelihood of innocent, accidental conduct, and it can strengthen the Crown's evidence as to the actus reus of the offence charged. As I have said, however, it is not a ticket to automatic acceptance of her evidence as proof of the charged offence.

[198] I cannot accept the Defendant's evidence on the first stage of the W.D. test. He contradicted himself on who first suggested intercostal massage. Taking his evidence in totality and viewing it against the backdrop of all the evidence in this case, I find I do not believe his account.

[199] Further, his denials of improper touching and claims of consent and appropriate draping do not raise a reasonable doubt in my mind. Taking into consideration the frailties I have already mentioned, and viewing his evidence as a whole keeping the ratio in J.J.R.D., supra, in mind, I find it does not meet the second stage of the W.D. test.

[200] I found A.L. to be a very straightforward witness. She admitted without hesitation that the Defendant was a talented therapist who addressed her issues. She did not attempt to shade her evidence to the Defendant's detriment. Even when testifying to her breasts being touched, she acknowledged that he likely did touch some intercostal muscle at the same time. Her evidence was frank and unvarnished.

[201] I return now to the issue of collusion with J.P.

[202] A.L. has complained of incidents where the Defendant touched her breasts. She described a pressing motion with his hand that moved all over the entirety of her breasts, including her nipples. She agreed he did not use a cupping motion. She testified that his movements were like kneading dough and were in a circular direction. She said both breasts were uncovered when this was happening.

[203] J.P. also testified to a kneading motion being used on her breasts, both of which were exposed. But that is essentially where the similarities end. She denied any contact with her nipples. She did allege a cupping motion, unlike A.L. She said he offered her a washcloth to cover her breasts. She also made a separate allegation about vaginal touching, again unlike A.L.

[204] I agree that both witnesses using the same simile might appear unusual and worthy of further attention. Considering all the surrounding circumstances, however, including that the two witnesses are married and live together, I am not unduly troubled by their shared used of the word. It does not prevent me from accepting A.L.'s evidence beyond a reasonable doubt. I adopt my reasoning as set out in paragraphs 193-200 of the similar fact ruling on this point.

[205] I find as a fact the Defendant touched A.L.'s breasts in a manner that went beyond any consent she may have given. I accept A.L.'s evidence beyond a reasonable doubt and find the Crown has proven count 7. The Defendant will be found guilty.

A.R.

[206] Ms. A.R. saw the Defendant several times at Mifflin Chiropractic.

[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.

[207] While A.R. did not recall signing consent forms when she started seeing the Defendant, she did agree he performed an assessment to determine her treatment plan. She agreed she would consent to areas of need being treated, and that she would tell him on each visit which areas she wanted treated.

[208] As noted above, her level of clothing during massages gradually changed. Ultimately, she would be entirely unclothed and covered only by a blanket or towel. The towel was quite small and was used to cover her buttocks.

[209] On every occasion, to help with what the Defendant called lymphatic drainage, he would massage A.R.'s breasts. As she'd never been to a massage therapist before, she was accepting his professional opinion that this was necessary and beneficial. She said at first one breast at a time was exposed but that it progressed to both being exposed for the entire massage.

[210] A.R. drew on a diagram the areas of her breast that were touched. The diagram was made an exhibit on the trial. She circled nearly the entire breast, excluding the nipple. When asked if he'd touched her nipple, she said, "I don't recall so that's why I did not do that".

[211] She had no memory of discussing consent to a breast massage but did recall the Defendant telling her the benefits of lymphatic drainage. While she felt uncomfortable with being uncovered, she said she didn't say anything as she was going along with what she thought he felt was best.

[212] The last massage she received from the Defendant took place at night. She didn't recall if he massaged her breasts on that occasion but said it was "typical" that he would. She said that appointment included a pelvic massage that progressed to the rubbing of her clitoris with his finger. She could not recall if her breasts were exposed at that time. The massage ended after that. She testified to feeling violated and taken advantage of.

[213] She said she and the Defendant communicated over text regarding appointments. During massages, they would discuss her work, vegan food, and her ongoing health concerns. She said he messaged her and tried to add her on various social media platforms but she did not accept his invitations. Eventually, she blocked his number.

[214] In cross-examination, A.R. agreed her belief in when she started and stopped seeing the Defendant was based on texts in her phone. She began seeing him in the fall of 2014. She denied she'd only seen the Defendant for a month but agreed it was possible she had a total of only nine treatments. She said she'd texted with someone in April 2015 about feeling uncomfortable and it was based on that text that she deduced she stopped seeing him in May. She estimated her entire time seeing the Defendant was five or six months.

[215] She agreed they went through a health history at her first appointment, but did not remember everything that was discussed. She could not say for certain that she told him about her back or neck pain, or about digestive issues. She agreed she did not have a specific recollection of that first meeting. She did not remember him mentioning lymphatic drainage or John Barnes myofascial release at the first meeting, though she did recall hearing the term myofascial.

[216] She was asked about their discussions regarding lymphatic drainage. She remembered it being discussed but said she simply trusted his professional opinion on whether it would be beneficial to her. She agreed she knew one breast at a time would be exposed, and that some parts of her breast tissue might be massaged. Further, she agreed they may have discussed her breasts being exposed but she didn't recall.

[217] She agreed she could not say the chest wall massage was non-consensual and could not say he did not inform her of the reasons for that massage.

[218] Regarding the clothing she wore, she agreed she did not tell police that in the beginning she wore either jeans or tights. She differentiated between the early massages and the later ones. Her concern, she said, centred on the massages where she said she was naked.

[219] On that point, she said the Defendant encouraged her not to wear underwear during massages as it would make his work easier. Again, she trusted his professional judgment and stopped wearing them.

[220] On the issue of the lymphatic drainage massages, she agreed that he likely asked for permission to undrape her breast at the beginning, but as the sessions continued, he may have just done it without asking. She wasn't sure about that point. A point she was sure about was that there were times, in later massages, when both her breasts were exposed at the same time.

[221] A.R. confirmed she consented to the massage of her legs as this was an area she specifically wanted treated. That consent extended to her inner thighs to the extent that he felt it was necessary in his opinion. She agreed the inner thigh massage never extended to her vaginal area. In addition, the massage of her lower abdomen was also done with her consent.

[222] She was asked about the massage she said led to the rubbing of her clitoris. She believed she was not draped with a sheet, but based that belief only on the progression of draping she experienced; that is, she was draped with less and less as the appointments went on. She had no specific recollection of how she was draped at that final massage.

[223] She was asked about her statement to police, given on 28 October 2021. She agreed the statement did not include allegations that both breasts were exposed at the same time, or that she was ever improperly draped. Her evidence of the towel covering her buttocks, and of him standing behind her and touching both breasts at once, were points she only remembered close to the trial date.

[224] It was also put to her that in her statement she said only that the Defendant touched her clitoris, not that he rubbed it. She responded as follows:

A. Okay. I'm sorry for not being so specific.

Q. Do you agree with that?

A. But it was – like he rubbed it because it was there for a while. So, I – I don't know. Rubbing, touching – what – what's the difference?

Q. Well…

A. It's my clitoris and I'm in a massage chair right now.

Q. Okay. So….

A. So, I'm sorry. Like – it's a – like I'm not, like I'm in a setting where your clitoris should not be touched period, so I don't know why I should justify what kind of touching.

[225] She agreed that she didn't say anything at the time of this incident. She said she was in shock, and afterwards too uncomfortable to confront him.

[226] In his testimony, the Defendant said A.R. started seeing him in November 2014. She had been referred by S.D.'s mother. He maintained their therapeutic relationship lasted only into December of that year.

[227] A.R. testified to being referred to the Defendant by her co-workers. When asked if she knew S.D. by the Crown, she said no. I suspect the Defendant may simply be mistaken in how it was A.R. came to see him. I take nothing from this possible error in his evidence.

[228] He said she presented with a large number of complaints he called "nonsensical". In using that term, he said he meant they did not follow a regular pattern. These included neurological pain in her arms and legs, and digestive issues. She was concerned she suffered from ALS. He understood she had a diagnosed mental illness.

[229] As a result of the diffuse nature of her complaints, he said he arrived at a treatment plan that encompassed her whole body. She was in agreement with this approach. It included giving attention to her lymphatic system. He told her there would be massages to her chest wall and that he would be in contact with her breast tissue. As well, he would massage her abdomen and glutes. He said she consented to all of this.

[230] When he massaged the chest wall, which he said was for an impingement of the pec minor muscle as well as lymphatic drainage, he said he would first seek permission to undrape one side of her chest. When finished, he would re-drape and do the same on the other side. He denied A.R.'s claim that both her breasts were exposed at any one time. He also denied ever standing behind her and massaging both breasts at once, and leaving her breasts uncovered while performing massages of other areas.

[231] He was asked about the abdominal massages he performed. He said A.R. would be covered with a sheet on her lower body and a towel on her chest. Her torso would be exposed, from approximately her belly button to her rib cage. After again asking for permission, he would begin with gliding techniques to soften the area.

[232] He said his hand would be 1-2" above the pubic bone, which he estimated to be 1-2" above A.R.'s clitoris. He denied ever touching or rubbing that part of her body. He offered that his wrist may have touched the draping, leading to A.R. feeling like she was being touched. At no point did he ever touch her vaginal area.

[233] Finally, he testified that after she stopped being his client, he did not text her or reach out to her in any way to get her to return.

[234] When asked in cross-examination about A.R.'s claim that there were times she asked for a certain area to be treated and it wasn't, he said she either didn't remember or simply didn't understand the treatment he was providing. The lymphatic drainage techniques, he said, could be useful in treating her random pains.

[235] He said he asked for consent to perform lymphatic drainage directly on her skin, which he said was necessary. He said she consented to removing her pants and shirt.

[236] He denied that she was ever covered only with a small towel. When on her stomach, he said she was covered with a twin sheet. When on her back for lymphatic drainage, he would only undrape the side on which he was working. He was asked about touching breast tissue during this portion of the massage and said it would only be to the extent necessary as the lymph nodes were not in the breast tissue.

[237] At that point, despite having referred to breast tissue throughout his testimony, the Defendant then suggested the very definition of "breast tissue" was subjective:

Q. Would her nipple be exposed?

A. It was, she was undraped. One whole side of her chest was undraped so her whole breast and nipple on one side was exposed when I was doing that treatment.

Q. And when you say nowhere near the nipple, what do you mean by that?

A. I'm not doing lymphatic drainage on breast tissue.

Q. Just around it.

A. As good as I can, yes. It depends on what you're defining as breast tissue, everyone has their own definition of exactly what their breast tissue is.

Q. Well, how do you define it?

A. I don't define it; it's defined by the client.

[238] I'm not sure what to make of this statement. The notion of what is and isn't breast tissue, and more broadly what is and isn't an appropriate area for a massage therapist to touch, is central to this trial. I don't see how the Defendant, with the knowledge and experience he has emphasized repeatedly, can suddenly disavow any objective knowledge of what constitutes breast tissue.

[239] Lastly, he denied the evidence given by A.R. in re-examination. He denied inviting her to a local restaurant and denied asking her to remain after a massage so they could continue talking and eat together.

[240] A.R.'s evidence is hampered by her lack of clear memory on several points. For example, she had an uneven recall of their first meeting, and didn't remember if he told her about the additional training he had in myofascial release. Her memory of her statement to police was lacking at times.

[241] I must consider if these deficiencies in memory extend to core issues or only to peripheral matters. Certainly, the entirety of a witness's evidence must be taken into account when determining their credibility and reliability. But, not all memory lapses are created equal. If they relate to central, crucial points, they can and likely should give a trier of fact significant pause. If they relate to secondary, collateral issues, they may more easily be chalked up to the passage of time or innocent forgetting. It is for the trier of fact to determine where the evidence lies on that spectrum.

[242] I have already noted the other witnesses who complained of breast touching and vaginal touching. J.P. and A.L. both complained of unwanted breast touching. Like A.R., both said that contact came as a result of the Defendant suggesting a particular type of massage. In their case, it was intercostal massage while in A.R.'s case it was lymphatic drainage. I have found the conduct to be sufficiently similar that the evidence of J.P. and A.L. can be used to bolster the credibility and reliability of A.R.

[243] J.S. and J.P. also complained of unwanted vaginal touching. All said it came when the Defendant was massaging a nearby area. J.S. and J.P. said the touches were brief, while A.R. said it wasn't long but it was long enough to realize what was happening.

[244] On both points, the similar fact evidence can rebut the defence of accident, assist in proving the actus reus of the offence, and can enhance the credibility of A.R.

[245] For reasons specific to his evidence about A.R. and for reasons related to his evidence in general, I find I do not believe the Defendant's denials. Again, he suggested that he may have accidentally contacted A.R.'s vaginal area through the movement of the sheet that was covering her. This is the same suggestion he made as to how other complainants' vaginal areas were touched. The notion that someone who is otherwise so careful and methodical in his work would accidentally (if indirectly) touch the vaginal areas of multiple women does not follow common logic. I remind myself that the Defendant is under no obligation to provide an explanation of any sort. When he does, however, that explanation becomes part of his evidence. The plausibility of it is an appropriate consideration in my assessment of his credibility.

[246] His denial of using a small cloth to cover A.R.'s buttocks is belied by the similar fact witnesses who also complained of small cloths being used to cover their bodies. Again, pursuant to J.J.R.D., supra, an acceptance of contrary evidence is a sufficient basis for rejecting the Defendant's evidence. I accept the evidence of the complainants who said the Defendant used a facecloth to cover them at various times in their massages. That no facecloths were ever seen by Dr. Mifflin does not mean they were not there. While I do think J.P. was incorrect in her estimate of the cloth's size, her evidence that it was a very small cloth is clear. I accept the evidence of those complainants on this issue, and reject the Defendant's denials.

[247] I am also not left with a reasonable doubt by his evidence regarding A.R. I make this finding based on the same reasons I do not believe his evidence. Despite the bar being lower at this stage of the W.D. test, I come to the same conclusion. I am especially troubled by the Defendant's sudden claim that the definition of breast tissue is variable and entirely subjective. As I said, the inappropriate touching of some complainants' breasts is a central issue in this case. Suddenly saying he doesn't even know how a person defines breast tissue is, respectfully, preposterous.

[248] A.R.'s memory as to certain aspects of her dealings with the Defendant was not entirely clear. She did not recall what was said at their first appointment. In her last massage, where she alleges he touched her clitoris, she did not recall any discussions about consent. She did not recall what she was wearing during that massage or how she was draped. She did not have an independent memory of when she stopped seeing the Defendant. There were aspects of her testimony that were not included in her statement to police.

[249] On that last point, A.R. agreed she did not tell police she wore either jeans or tights for her first massages. It was suggested to her that if she had done that she would have told police. She responded that the early massages weren't the problem and she didn't focus on them. The important part, she said, came later. I do not put any weight on A.R. not telling police about her clothing in the early massages. I accept those appointments did not stand out to her.

[250] She did not recall telling police that the touching of her breasts was a pushing and massaging motion. In my view, while she may not have recalled using those specific words, her testimony on the breast touching conveyed the same sort of motion. She described massaging and times where the pressure was firm. I don't see an issue with her not remembering that she used the word "pushing" in her statement.

[251] There were other areas of her testimony that were not included in her statement that give me more concern. She did not tell police about the Defendant only covering her buttocks with a small towel. Indeed, she did not mention any draping issues to police at all, including her claim that both breasts were exposed at the same time.

[252] When asked about these omissions, A.R. said some aspects of her massages only came back to her memory recently. She said she suffered from anxiety and post-traumatic stress disorder. This is from her cross-examination:

MS. SANTAROSSA: Q. All right. Okay. And again, when you gave your statement to the police, you knew you were meant to be truthful?

A. Yes, but I also don't remember everything. So, when I'm going in there I'm obviously under stress, and I remembered everything I can at that time. It's not that I wasn't being truthful, it's that I just didn't remember everything at that time. It's been – it wasn't last week this happened. It's been since 2015.

Q. Right. So, are these memories just coming to you right now then?

A. There's a lot of things that have just come – like some things have just come to me. Like there was a few things that have just come to me within the last little while. And I'm sorry that's kind of how things happen. Like, when someone experiences trauma or any type of issue, it – they're not supposed to remember everything at once. Like, I work in health care. Like people get flashbacks. Things just start to – they just start to recall things.

Q. In relation to the allegation where both breasts were exposed, that is something that just came to you at this trial?

A. Because I remember – not at this trial, but within the last little while, like I remember having them exposed and feeling uncomfortable about that because I remember them not being covered at times.

Q. And is that a flashback that you had?

A. Yes.

Q. All right. So, essentially ten years go by and then you remember it in the last little while?

A. Yes. There's things called PTSD, you know, like flashback [Audio Cut Out]….

[253] A.R. was then asked specifically about not mentioning the towel on her buttocks to police:

Q. Okay. My question was, in relation to the towel, you remember that the first time at around this trial?

A. No, I remembered it for a bit, I just – you know, I don't know – when you're giving a statement, to remember everything on top of like with COVID going on and then – there was just a lot going on. I tried to give whatever I could. I have anxiety, so this is part of the reason why I'm in this room right now. Like I can't possibly remember everything, and to even ask that of someone who experienced it in 2015, that's a lot. If this

was last year, sure, that's different, but this has been a long time and I'm doing – there's points that I remember significantly and I've mentioned those points, and I think those are quite significant.

[254] One area where A.R.'s testimony was clear dealt with the areas of her breasts that were touched. She noted on the diagram where she said the Defendant touched her. She circled almost the entire breast, but did not circle the nipple. She said in her examination in chief that she did not recall him touching her nipple so she did not want to include that in the circles. In cross-examination she confirmed this testimony and disagreed that her memory on this point was not very good.

[255] She was also clear in her cross-examination that she remembered, despite this not being in her statement to police, the Defendant standing behind her and touching both breasts at the same time.

[256] Assessments of credibility and reliability can be among the most difficult tasks a trier of fact must accomplish. As Justice Shaw said in R. v. R.C. [2023] O.J. No. 3323 (S.C.J.) at paragraph 60:

Assessing a witness' reliability and credibility is not a science. As we instruct juries, there is no magic formula in deciding how much or little to believe of a witness' evidence. We are to be guided by our common sense and experience in human affairs.

[257] The trauma that attends some events in a person's life can wreak havoc on their memory. It can cause lapses in memory, as noted by Justice Presser in R. v. Eze [2022] O.J. No. 379 (S.C.J.) at paragraph 54:

J.K. explained her memory gaps by saying that the assaults occurred a long time before trial and that they were very upsetting and dramatic for her. She acknowledged that her memory of the details of the assaults was not great because the incidents were traumatic for her. She did not talk about the assaults every day, and had wanted to try to forget what happened to her. J.K. candidly acknowledged that, given the passage of time and her trauma, her memory was fading. However, J.K. explained that the transcript of her police statement and the surveillance video refreshed her memory. And she adamantly maintained that she did remember that she was sexually assaulted in the washroom.

[258] The Court of Appeal for Ontario considered trauma and its effect on memory in the case of R. v. G.M.C. 2022 ONCA 2 at paragraphs 38-40. Chief Justice Strathy (as he then was) stated:

[38] After his general observations with respect to the assessment of evidence, the trial judge simply expressed some propositions, grounded in common experience, that are familiar to every trial judge and lawyer and to lay people. Although he used different language, I would express these as:

-- observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date;

-- a witness cannot be expected to have a faithful memory of minor incidents that occurred during a traumatic event and the inability to recall a minor or insignificant event does not detract from the witness's overall reliability or credibility; [page573]

-- it is human nature to try to make sense out of bits and pieces of memories about an event, and this may impact the accuracy of a witness's testimony concerning events; and

-- a child caught up in a conflict between his father and his father's partner is likely to have conflicting loyalties and a judge should be cautious of accepting the child's recollection, recounted several years later, about events that may not have been particularly significant to the child at the time.

[39] Although dressed up in unnecessarily scientific jargon, the trial judge's application of these common experiences does not reflect error in his assessment of the evidence.

[40] I would dismiss this ground of appeal.

[259] In my view, this statement from the Court of Appeal directly addresses A.R.'s memory issues and the omissions of certain aspects of her dealings with the Defendant from her police statement. Consequently, the gaps in her memory and later recall of certain conduct do not lead me to question her overall credibility or reliability. I find A.R. was doing her best to tell the truth about incidents from several years earlier. She was cross-examined vigorously and appropriately. That cross-examination brought out the issues I've mentioned above. Taking the entirety of her evidence into account, I find her to have been a credible witness. Was her recall of events perfect? No, it wasn't. But that isn't the test. I must only concern myself with whether the Crown has proved the counts related to A.R. beyond a reasonable doubt.

[260] I find as a fact that the Defendant did touch A.R.'s breasts in a manner divorced from any sort of therapeutic approach. I accept her evidence that he massaged her breasts, sometimes one at a time and sometimes both at once. While she agreed to a massage for what she was told was lymphatic drainage, the touching went far beyond the location of the axillary lymph nodes and included almost the entirety of her breasts.

[261] I also accept A.R.'s evidence that the Defendant touched her clitoris in the context of an abdominal massage. Her evidence on this point was clear and entirely unshaken. While she may have had difficulty remembering other specifics of their meetings, she was consistent on this point.

[262] Like J.P., A.R.'s allegations are reflected in two counts in the information. While not specifically delineated by the Crown, I find I can ascribe the breast touching to count 8 and the vaginal touching to count 9. The Defendant will be found guilty of both counts.

S.D.

[263] Ms. S.D. testified to a single encounter with the Defendant.

[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 that covered her chest. 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.

[264] On meeting the Defendant, S.D. said he seemed knowledgeable and appeared to like having athletic clients.

[265] She said the massage began with her on her stomach. She had concerns about how she was draped and felt her buttocks were exposed to an unnecessary degree. She said her legs would be uncovered one at a time and the sheet tucked into her underwear. She said her buttocks cheek would be "pulled out" for the massage. The massage went on for a long time and she said it felt different from other glute massages she'd received in the past.

[266] When she turned over onto her back, she said she her chest was covered with a washcloth. She acknowledged her memory on how this happened was "a little vague" but believed he must have seen her exposed when the cloth was put in place.

[267] The massage of her chest, as noted above, was primarily to her sternum area. She said the Defendant used both hands and had them under the cloth. He did not touch her breasts. She said there was no discussion about what he was doing, the reason for it, or whether she was agreeable to it.

[268] The massage of her stomach area also made her uncomfortable. Again, there was no discussion about the reason for the massage. She said he moved low on her abdomen, and that it felt like the area of her pubic hair was moving a bit as a result.

[269] Finally, near the end of the massage, he stretched each leg out to the side. She was concerned that her vaginal area was exposed as a result.

[270] In general, she said she felt like areas of her body were touched that didn't need to be touched. She felt exposed. She also questioned why a massage paid for with a one-hour gift certificate stretched into three hours.

[271] In cross-examination, S.D. agreed she didn't remember exactly what was discussed prior to the massage. It was put to her that the Defendant proposed a full-body, deep tissue massage. She agreed that was possible. She did not recall discussing any specific body parts. She denied that he explained the reason for massaging certain areas, like the abdomen. She said she'd never had that area worked on before and wouldn't know why it would be done.

[272] She agreed she told police the massage was "somewhat normal" until she flipped onto her back. While the glute massage was different from others she'd had in that it was skin to skin rather than through the sheet, she testified that she was not "totally alarmed yet". She denied giving consent to a glute massage beforehand. She agreed she never asked questions during the massage, but denied that was because she'd already consented to what was happening.

[273] Regarding the massage of her sternum area, it was put to her that the Defendant offered an intercostal massage. She did not recall that. It was put to her that he suggested he could do the entire area, which would involve exposing her breasts, or he could just do a few of the intercostal spaces in the middle of her chest. She was clear that conversation did not happen. It was suggested she opted for the more limited intercostal massage only in the middle of her chest. She denied that suggestion.

[274] She further denied that the towel filed as an exhibit was the same size as the one he used on her chest. It was suggested that he'd actually put two of the exhibit towels on her chest and she disagreed.

[275] S.D. was also asked about receiving a phone call during the massage. She said it was possible but didn't recall. She denied the Defendant offering to end the massage after the call, and denied telling him not to worry about her boyfriend as he was a control freak.

[276] The remainder of the cross-examination concerned her contact with K.M. She agreed they met as a result of their shared interest in running and were friends on Facebook. She agreed they had told each other about their experiences with the Defendant. She denied her account was influenced by their discussions.

[277] Count 10, as I have noted, was amended on consent to change the start of the date range to 1 January 2013.

[278] The Defendant testified that the one massage he gave to S.D. took place on 7 January 2013. He testified that on meeting S.D. at the clinic, he had her fill out a health history form. He said they discussed her needs and she requested a full-body massage. He told her that would take two hours, rather than the one hour her gift certificate entitled her to. She was fine with a longer massage. He was asked if he charged her for the second hour, and he said he did not recall. He may have done it for free in appreciation of S.D.'s mother, who had bought the gift certificate.

[279] He said they had a detailed discussion of the areas he would treat. He assessed her and found her to be well-balanced. He said she listed off the areas she wanted treated. This included her feet, legs, hamstrings, glutes, back, neck, shoulders, arms, and other areas as well.

[280] They also discussed intercostal massage. He said he worked on the back and sides of her rib cage, but that she didn't want the front of her chest treated as she was sensitive about that area. He offered reflexology for her sternum area instead, and she agreed.

[281] He began the massage on her back, and then moved to her glutes. He testified that she consented to the glute massage and to being undraped for that purpose.

[282] As he was massaging the second glute, just short of the one-hour mark of the massage, he said she got a phone call. He handed her the phone. She spoke briefly and hung up, throwing the phone on a chair. She told him it was her boyfriend. He offered to stop the massage, but she said no. He testified that she said, "Don't worry about him, he's a control freak. You're doing a great job; you can keep going."

[283] After she turned onto her back, he massaged her legs. He recalled using a combination of Swedish and myofascial release techniques. He said she gave her consent for a massage to her legs, hip flexors, and abdomen.

[284] Following the leg massages, he moved on to the sternum. He said he overlapped two towels on her chest and only exposed ½ - ¾" of her sternum. At no time did he expose her breasts or touch them.

[285] He denied any stretching of her leg out to the side as S.D. described.

[286] Overall, he estimated the massage to be between two and two-and-a-quarter hours. He denied contacting her afterward in an attempt to get her to come back.

[287] Cross-examination began with questions about S.D.'s payment for the additional time. The Defendant's testimony on that point was hard to follow. He first said he told her the gift certificate covered the first hour "and if she wanted longer, she was going to have to pay for the rest." He then said he could not remember exactly how much she paid, despite agreeing that his fee schedule dictated a two-hour massage cost double the price of a one-hour massage. He then agreed he could not recall if he charged her for the second hour. When it was suggested to him that he didn't charge her anything, he responded, "Suggest whatever you want."

[288] He confirmed he had verbal consent for each portion of the massage. He said she "opted out" of the full chest wall massage and chose the sternum treatment instead. He repeated how he had the towels arranged on her chest.

[289] It was suggested that the sternum treatment was not part of the full-body, deep tissue massage S.D. wanted. His response was simply, "It's part of the body." That response is really not helpful and borders on flippant.

[290] In my view, the evidence related to count 10 is different from the other counts. Unlike the other allegations, the disputed conduct here is a massage of S.D.'s glutes and the touching of her sternum. There is no allegation of breast massage or vaginal touching.

[291] Returning to the elements of sexual assault as set out in the G.F. decision, supra, Justice Karakatsanis said there were three:

The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent…

[292] Each element must be proved beyond a reasonable doubt.

[293] The first element is satisfied. It is common ground that there was touching by the Defendant. That is the whole point of massage therapy.

[294] It is the second and third elements that present difficulties for the Crown. I will deal with the second element first.

[295] Is the massaging of S.D.'s glutes or buttocks "of an objectively sexual nature"? That is, would a reasonable person view that touching as sexual? It's important to define who the reasonable person is and perhaps more importantly what their knowledge of the surrounding context is. The reasonable person in this situation would be someone familiar with the reason the Defendant and S.D. are together (i.e. massage therapist and client), familiar with the general nature of massage therapy, and familiar with the physical demands of athletic training. Would a person, armed with that knowledge, find a glute massage to be sexual in nature when done by a registered massage therapist in a clinic environment?

[296] I find the answer is no.

[297] Even taking S.D.'s evidence at its highest, I find the Crown has not proven beyond a reasonable doubt that the glute massage was a touching that was objectively sexual in nature. When asked about the actual contact, S.D. said, "Yeah, just like a regular – just like pushing." She did not testify to any unusual movements by the Defendant. Is it possible the Defendant took an accepted therapeutic massage too far? It is possible, but possible is far short of proof beyond a reasonable doubt.

[298] I reach the same conclusion with regard to the sternum treatment. This was not a case where the Defendant is alleged to have massaged S.D.'s breasts. On her evidence, he rubbed the middle of her chest, between her breasts. She was asked if he ever touched her breasts and she said no. I find the Crown has not shown the sternum touching to be objectively sexual in nature beyond a reasonable doubt.

[299] As to the third element, the lack of consent by the complainant, I find I am unable to accept the evidence of S.D. beyond a reasonable doubt. I will explain why that is.

[300] In her evidence, she did not recall discussing specific body parts to be massaged but agreed it was possible. She also did not recall signing any forms, though she said he did do a physical assessment of her while she was standing. When asked if there was any conversation about consent, her response was "Not that I know of". Further, she was unclear on the year when the massage took place.

[301] I have also considered the message she sent to Lindsay Cole where she said, "I'm just trying to remember some of the details" of an inappropriate massage she'd had. It was suggested to her that in saying that, she was tacitly admitting she didn't remember the details. She disagreed, and said she was really just trying to bring the Defendant to Ms. Cole's attention. She said she remembered the details despite what she wrote. That contention is supported by the fact that she gave her police statement shortly after sending that message. While I do have some concerns about S.D.'s memory, those concerns do not arise from this message.

[302] S.D.'s contact with K.M, however, is troubling.

[303] I have no issue with the two of them knowing each other prior to trial, or even with them discussing their allegations. As S.D. said, her incident was years prior to K.M's. There are, however, two significant problems with their contact.

[304] The first is that after she gave her statement to police, S.D. was told not to speak to K.M (or any other complainant) about her allegations. Despite this direction, they continued to discuss their experiences. There's a good reason police tell complainants not to speak to each other in the course of an investigation: they don't want accounts to be tainted by other witnesses. That was clearly the intention of police in this case. Unfortunately, their direction was not followed.

[305] The second involves S.D.'s contact with K.M after testifying. An agreed statement of facts submitted by counsel reads in part:

On February 15, 2024, S.D., after completion of her testimony, communicated with K.M via a Facebook message, indicating that she was asked questions in court about her contact with Karly about these allegations. K.M advised the Victim Witness Assistance program about this, who disclosed the information to the Crown Attorney's Office.

[306] At the start of trial, I issued a witness exclusion order. Witnesses were enjoined from discussing their evidence with any other party. That order was still in effect on 15 February 2024. At that time, K.M was still a potential Crown witness. Had she been called to testify, questions about her interactions with S.D. would surely have been asked by both parties. In speaking to K.M, S.D. violated the witness exclusion order and put any evidence that might have been given by K.M at risk of seeming tainted.

[307] I do not have sufficient evidence to find that S.D. wilfully violated the Court's order. While I cannot, and do not, ascribe any nefarious intention to her actions, her failure to follow both the police direction and the witness order are factors I can consider in determining her credibility and reliability.

[308] S.D.'s evidence on the issue of consent was already equivocal. When I add to that equivocality my concerns about her contacting another potential witness, I find I am not satisfied beyond a reasonable doubt that the touching, neither to the glutes nor to the sternum, was done without her consent. The Defendant will be found not guilty of count 10.

[309] I do, however, accept her evidence regarding the use of the washcloth to cover her chest. She was clear and unshaken on that point, and the use of a small cloth to cover a complainant's body was testified to by multiple other witnesses. While I have not accepted her evidence as proof of the alleged offence beyond a reasonable doubt, I do accept her testimony on that issue. Given the acquittal on count 10, I view S.D., like J.P. regarding the breast touching, as tantamount to an extrinsic witness. Her evidence does not prove a charged count, but, following the reasoning set out in the next section, I accept her evidence as to the washcloth on a balance of probabilities. It can be used by me when assessing claims of other witnesses that the Defendant covered them with small washcloths rather than large towels or sheets.

Extrinsic Witnesses

[310] The final two witnesses are not named complainants on the information. They are extrinsic witnesses called only to provide similar fact evidence. In my ruling on that application, I found the evidence of both E.S. and C.M. to be reasonably capable of belief and therefore admissible. At this stage of the proceeding, I must conduct a more demanding assessment. I do not, however, need to determine if I accept the entirety of their allegations beyond a reasonable doubt. I have ruled that their evidence, in the categories set out in the similar fact ruling, is admissible. It is the evidence related to those similarities I must now consider to determine what weight, if any, I assign to them.

[311] The test to be applied is set out with clarity in the case of R. v. Thurston [2016] O.J. No. 4600 (S.C.J.) by Justice Lalibert é. Referring to evidence admitted as similar fact, His Honour stated:

213 As the judge of the facts in this trial, I must instruct myself as to the proper use of such evidence.

214 The Supreme Court of Canada in R. v. ARP, [1998] 3 S.C.R. 339, provides guidance on the correct use of such evidence on the ultimate question of guilt or innocence.

215 The Court states the following at paragraph 72:

"Similar fact evidence, on the other hand, as circumstantial evidence, must be characterized differently, since, by its nature, it does not carry the potential to be conclusive of guilt. It is just one item of evidence to be considered as part of the Crown's overall case. Its probative value lies in its ability to support, through the improbability of coincidence, other inculpatory evidence. As with all circumstantial evidence, the jury will decide what weight to attribute to it."

216 The Court must keep in mind that this extrinsic evidence is relevant for the limited purpose for which it is admitted.

217 It must not be used to infer that the accused is a person whose character or disposition is such that he is likely to have committed the offence. Nor should he be convicted because he is a bad person.

218 In assessing the weight of this evidence, I must do so on a balance of probabilities. This notion is found at paragraph 70 of ARP where the Court states:

"...a preliminary finding of fact governing the use of evidence is normally subject to the civil standard of proof...preliminary questions of facts may be decided on a balance of probabilities..."

219 Finally, at paragraph 66, the Supreme Court explains that:

"...Though the similar fact evidence, standing alone, may fall short of proof beyond a reasonable doubt, it can be relied upon to assist in proving another allegation beyond a reasonable doubt. Two separate allegations can support each other to the point of constituting proof beyond a reasonable doubt, even where a reasonable doubt may have existed in relation to each in isolation."

220 In the end, the evidentiary value of other discreditable conduct lies in its "objective improbability of coincidence."

[312] I must examine the evidence of the extrinsic witnesses to see if proves the specific conduct alleged on a balance of probabilities. If it does, it will be capable of supporting the other allegations in that category.

E.S.

[313] This is the summary of Ms. E.S.'s testimony from the similar fact ruling:

[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.

[314] In the similar fact ruling, I found E.S.'s evidence to be admissible in the following categories: "Underwear Removal Encouraged" and "Unusual Business Practices". While I must consider the totality of her evidence, it is on those discrete issues only where I must make a determination of acceptance or rejection.

[315] Much of E.S.'s evidence was qualified on cross-examination. Areas she testified to in chief, like there being no discussion about the Defendant massaging her legs, were questioned. She agreed that the Defendant may well have offered a full-body massage for her third appointment. They may also have discussed a full-body massage during the foot soak at that last appointment. Likewise, they may have discussed a massage of her chest wall. On these areas, and others, E.S. agreed they may have had conversation but she could not recall. She agreed it was possible. These admissions are important because the picture painted in her evidence in chief was of an unexpected full-body massage where the Defendant touched areas she wasn't expecting. That may well not have been the case.

[316] Later in cross-examination, E.S. remembered they did in fact discuss a leg massage. She was adamant that discussion did not include the Defendant potentially massaging her inner thighs.

[317] On the issue of the Defendant lifting up the sheet and seeing E.S. was still wearing her underwear, the witness was clearer. She agreed that she did not see him lift the sheet up but rather only felt it. I have no issue with her testifying to feeling the sheet that had been covering her move in this way. Immediately after she felt the sheet move, she said he made a comment about her still wearing her underwear. This led her to believe he'd seen her underwear. It was put to her that she was making an assumption on that point, and she agreed. In my view, it's a reasonable assumption. It was then put to her that the Defendant made the comment based on what he could see through the sheet, not under it. While the witness agreed, I find that explanation to be speculative. I have no evidence that this sheet was anything other than a standard bed sheet. Nothing to suggest it was especially thin or translucent. The Defendant himself described it as a twin cotton sheet of average thread count. I also have no evidence of the colour or style of the underwear E.S. was wearing, and whether that might have made them more visible through the sheet. In the circumstances, I have no reason to accept the notion that he could see her underwear through the sheet. I accept her testimony that she felt the sheet move off her and he then made the comment. The only reasonable inference is that he saw her underwear when he moved the sheet.

[318] E.S. made no complaint about improper draping, though she did testify to both her legs being uncovered at once during the leg massage. Again, however, it was suggested to her that only one leg at a time was uncovered, and she agreed that was possible.

[319] In his evidence, the Defendant denied making any comment about being able to do a better job if E.S. was not wearing underwear. He also denied any massage of her upper thigh or groin area. He did agree he massaged her quadriceps "From the inguinal fold on down", though he denied going into the groin area or the inner thigh. By his evidence, he only massaged the front of her upper thigh and the outer area closer to her hip. It's unclear, therefore, why it was put to her in cross-examination that he did tell her he could massage her inner thighs and that she agreed. In any event, she denied that suggestion.

[320] The Defendant was also asked about his massage of E.S.'s sternum area. He described how she was draped and the work he did. He said he could not recall whether he treated only one side of her chest or both. While certainly this massage was done several years earlier, and E.S. herself admitted to some vagueness to her memory, the Defendant's testimony on this point is curious. Elsewhere in his evidence, his recall of events is comprehensive. For example, he could remember how many inches above A.R.'s pubic bone his hand rested during her massage, and which finger he said J.S. used to point to areas she wanted treated, but he could not recall whether he massaged one or both sides of E.S.'s chest? This is another example of the Defendant's intermittent memory of events.

[321] He denied any discussion of pubic hair. He said that conversation arose from their discussion of pulling off band-aids, and the relative pain tolerances of men and women. He agreed he talked about waxing body hair, but said it was only in relation to him telling her about a time when he had leg hair waxed.

[322] In cross-examination, the Defendant disagreed on the length of the second and third massages. He also disagreed that he was in jogging pants or pajamas when E.S. arrived for the second appointment.

[323] When asked about how E.S. paid for her massages, he agreed she could have only paid cash or cheque as he had no way to accept credit card payments. He was unable to say what he charged her for any appointment. He was asked if it was important for him to be paid for his work. He said:

A. I've never worried about money in my practice. I was actually the highest paid massage therapist in Canada on record, and I never, ever worried about money. The money just came.

[324] He offered no support for the assertion that he was "the highest paid massage therapist in Canada on record". It is surprising to hear, though, that a person, no longer a registered massage therapist, working out of his home in Belle River, would be the highest paid practitioner in the country.

[325] Perhaps he was referring to his time as a registered massage therapist at Mifflin Chiropractic. He was asked about his hours of work in his examination in chief:

Q. All right. Tell us about your typical hours of work?

A. For massage therapy, it was a little different for a massage therapist versus a doctor, a chiropractor, a medical doctor because people would take work off to go to those appointments, but it seemed like the majority who were for massage therapy, they were coming after work.

My typical day would be at any time from eight in the morning and because we're an automotive community, people who would be working on afternoons or midnights, might be a morning client, and people later afternoon might be a day shift client, but more people worked days. So, my schedule would go all the way up until 10 o'clock at night sometimes because after 4 p.m., that's when you get an influx of people who want massages and you want to be available for them. So, it was a pretty broad schedule as far as the time of day.

Q. So, you worked days like during the day and into the evening?

A. Into the evening, yeah.

Q. What about weekends?

A. Weekends, Saturday is another big day because a lot of people are off work on Saturdays, and it's just an opportunity to fill a schedule for sporadic times during the week where you might have open appointments. But Saturdays are definitely a day where you can see a few patients.

[326] He testified to his hourly rate being perhaps $70-80, and that it changed over the years.

[327] Candidly, I see nothing in his evidence that supports the notion that he could have been the highest paid therapist in Canada. Whether at the clinic or in his home, he worked when he was booked, and charged fairly standard rates. I view his evidence on this point as little more than hyperbole.

[328] He denied suggestions that he told E.S. he could do a better job if she wasn't wearing her underwear. It was put to him that he massaged her upper inner thigh, and made that comment. He responded by detailing an Epsom salt technique he used on her legs. He testified he used a coffee grinder to grind the salt and mixed it with oil He would let it sit on the skin, then remove it with a hot towel from his roasting pan. He did this to let the magnesium penetrate the skin and relax the tissues.

[329] None of that was responsive to the question he'd been asked.

[330] It was put to him in cross-examination that he only treated the right side of E.S.'s chest. Unlike his evidence in chief, when he said he didn't remember, he said no, he'd done both sides.

[331] Again, the question I must ask is whether I accept E.S.'s evidence on the issues of underwear removal and the Defendant's business practices on a balance of probabilities. In answering that question, I must consider the totality of her evidence and also assess the impact of any contradictory evidence.

[332] E.S. testified both in chief and in cross-examination that the Defendant told her he could do a better job massaging her if she was not wearing underwear. She said he told her this initially, after she felt the sheet move on her body, and again as he was massaging her legs. She maintained this evidence in cross-examination.

[333] Throughout her evidence, E.S. readily agreed with suggestions she could not remember particular points with clarity. When she did not remember something, she admitted it. As to the Defendant saying he could do a better job massaging her if she was not wearing underwear, E.S. was consistent and unshaken. While the Defendant denied saying this, I prefer E.S.'s evidence on this point. The test as I have stated is a balance of probabilities. On that standard, I accept E.S.'s evidence and it can be used to bolster the credibility of J.S. and A.R. as to what they say happened.

[334] I reach the same conclusion regarding E.S.'s evidence on the Defendant's billing practices. She testified that while his rate was $70 per hour, when she told him she had only $500 in coverage he told her she could pay what she wished. He suggested she could pay as little as $20 per session. She also said the second massage was between one hour and thirty minutes and one hour and forty-five minutes, while the third massage was three hours long.

[335] When asked about his discussions with E.S. as to billing, the Defendant said he did not remember what he told her about rates. He estimated he was charging about $70 per hour at that time but could not recall exactly. He also had no note or memory of how much she paid, or if she even did pay, for any of her appointments. On this point, if anything, the Defendant's evidence supports the notion that his billing practices were very fluid.

[336] He agreed the second massage may have gone over one hour. He testified the third massage was two hours, not three. Given how loose the Defendant's approach to billing was for these appointments, I am unable to place very much confidence in his time estimates.

[337] I accept E.S.'s evidence on this issue. It supports the evidence of J.S. and S.D. as to the Defendant's desire to keep them as clients regardless of their ability to pay (as in J.S.'s case) and his willingness to go far beyond the allotted appointment time (as in S.D.'s case).

C.M.

[338] Ms. C.M.'s evidence is summarized as follows from the similar fact ruling:

[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.

[339] C.M.'s evidence is relevant only to the issues of improper draping and the Defendant's reaction to being discharged.

[340] In her evidence, C.M. confirmed the Defendant explained the need to massage her inner thighs, though it seemed she didn't fully understand the reason. She agreed in cross-examination that he performed an assessment of her at the first appointment and mentioned an issue with her pelvis. She said he gave her exercises to do to help stretch out her inner thighs.

[341] Her massages were typically about 90 minutes long, and the Defendant stuck to that timeframe, more or less. Certainly, there was no evidence of two or three hour massages from C.M.

[342] She testified to the Defendant using a heavy, grinding pressure when massaging her, to the point of making her cry. He told her he needed to break up fascia or tissue so she could heal properly, so she let him do it. She also said that pressure got "absolutely worse" after she confronted him about moving the sheet and her underwear.

[343] While she testified that he may have accidentally touched her vaginal area when moving her underwear, she did not recall feeling his hand touch her. She confirmed she told the College of Massage Therapists investigators that he did not touch her genitals.

[344] It was suggested to C.M. that when she was in the frog position (the position described by other witnesses as the butterfly position), there was no actual massage going on. Rather, he was simply stretching her legs. While I remind myself that counsel's suggestions are not evidence, that suggestion was contradicted by the Defendant's own evidence when he was asked about stretching S.D.'s legs:

Q. Okay. You didn't stretch her leg out to the side?

A. There was no stretches.

Q. Okay. And you remember that distinctly?

A. I've never done stretches with any client in my whole career. I've given stretches to people to do at home on their own time, but I've never stretched clients. That's not part of my practice.

[345] C.M. was asked about the text messages she'd sent to the Defendant over the course of their professional relationship. Specifically, she was asked about messages she'd sent following the massage where she said he'd exposed her vagina. She texted the Defendant that she was feeling really good after their session, and that she'd faxed the treatment plan identifying the Defendant as her massage therapist to her insurance company. She also thanked him. When asked to comment on these texts, she said she didn't remember sending the one where she said she felt good after their session. Further, she said that while she may have sent the texts, it didn't change what she said he did.

[346] In my view, this was proper cross-examination that pointed out an apparent inconsistency between her testimony of being very upset after the massage and her texts, where she was seemingly happy and grateful.

[347] C.M. also explained her subsequent texts as being what she felt was necessary to secure her medical treatment given what the Defendant had told her about potentially losing her benefits if she changed therapists. As she put it:

A. Can I explain something for a second? If I was feeling vulnerable that somebody would take away my healthcare and I wouldn't be able to go to work, I would sure be doing a little bit of butt kissing. And that's all I'm going to put there. Okay? Because I do not like conflict and I wanted to smooth things over, and I wanted my massage therapist to fix me.

Q. Okay. So, that's what this is? In your words, butt kissing?

A. Somewhat, because I was threatened.

Q. Okay.

A. I was feeling threatened because I'd been told over and over again that if you go from one massage therapist to another, you've already gone here, you've gone to this one, you've gone to that one. That was always explained to me when I was there.

[348] In cross-examination, when asked if she "continued to choose" the Defendant as her massage therapist, C.M. said the following:

A. I'm going to say the same thing that I said all along. I needed treatment. I needed to make sure my benefits continued, and I continued to go where I felt I had to instead of opening and calling the insurance company and telling them that something happened to me. Oh, now you have to go report here. Now we have to find you another massage therapist. Now you need to do this. I already had went through issues. See what happened when I even went to another massage therapist? Right away they called somewhere, reported, and then I had people calling me, asking to look at all my records, my notes. I didn't call. I just wanted to get better. I just wanted to heal.

[349] She did not dispute the suggestion that she may not have told police about the Defendant claiming her benefits were at risk if she switched therapists. She said she'd just had surgery and may not have remembered everything. In re-examination, however, she refreshed her memory using her statement and confirmed that she did, in fact, tell police the Defendant had warned her that she would lose her benefits if she went somewhere else.

[350] The Defendant denied all of C.M.'s claims regarding the 16 July massage. He did not try to pull the sheet off her, nor did he expose her vaginal area. Prior to that date, he said she'd expressed discomfort with him massaging her hip area close to her genitals. He said they discussed the issue and he told her he didn't have to treat that area. Instead, he gave her a series of stretches to do. This discussion took place on 5 July, and he never treated that area of her body again.

[351] He maintained she was properly draped throughout.

[352] He denied any argument following the 16 July massage. The only time she ever voiced any issue with draping was at the start of the 5 July treatment as noted above. He said her account of her confrontation, with him telling her to lower her voice, never happened. He also never advised her about her benefits being jeopardized if she tried to change therapists.

[353] On that point, Crown counsel asked the Defendant if, based on his knowledge, those accident benefits might well be at risk if C.M. switched therapists. This is from his cross-examination:

Q. Okay. Do you know if that's the case? Meaning this, do you know if you switch massage therapists too much, your insurance company might cancel your benefits? Do you know whether or not that's even true?

A. I don't believe that's possible. When there's a motor vehicle accident claim, for example, I wasn't privy to all of her history from the motor vehicle accident and every single doctor and therapist that she went to, but I know that each individual has to fill out a request for treatment and stipulate the areas of body being treated, length of treatment plan, what the length of the treatment sessions are, how many per sessions per treatment plan, and they give recommendations based on their assessment and how they review the claim, and everyone can be individual and different.

For example, there's also something on a motor vehicle accident claim that's called "MMR", Maximum Medical Recovery, and every practitioner and professional that fills out one of those forms and is responsible for a treatment plan, is required to determine whether or not they've reached maximum medical recovery and the treatment plan at that point, which requires multiple conversations with the insurance adjuster who's in constant touch with us, and my plan for somebody else is based on my skill, my ability, what I assess, where I am in the treatment, and if I can offer any more benefit.

So, for her to leave one massage therapist who did an assessment a certain way, whatever reason she decided to leave that person for, it doesn't really have anything to do with my treatment plan, what I suggest, what my assessments are, and when I determine whether or not I'm offering any more benefit and I've reached maximum medical recovery.

[354] As that answer was non-responsive, counsel repeated her question:

Q. Okay - do you know, thank you for clarifying -do you know whether or not the insurance company might take issue or cancel benefits or coverage if a client or patient switches massage therapists or service providers?

A. I know, performing my job as a massage therapist over several motor vehicle accident claims over the years, that I have no authority to have someone's insurance canceled. I report based on what my findings are, and I have no information that would lead me to believe that anyone had that power or authority.

[355] It was only on the third time of asking that the Defendant answered the question:

Q. Have you ever heard of an insurance company canceling someone's coverage because they switched around too much?

A. Never.

[356] The Defendant was asked in cross-examination about C.M. getting into what she termed the frog position, and whose idea it was. This exchange occurred:

Q. And she was in that position because you told her to get in that position?

A. Yes, I did.

[357] It was the Defendant who directed C.M. into that position.

[358] But, seconds later:

Q. But you told C.M. to do it?

A. I don't remember 100 percent for sure if I instructed C.M. to get into that position.

[359] In my view, there is no other reason C.M. would have been in that position other than she was directed into it by the Defendant. I find as a fact he did so.

[360] Lastly, both parties were questioned about seeing each other at church in late 2022 and early 2023. The Defendant said C.M. sat next to him during one service around Christmas time. He called the encounter "upsetting" and had physical difficulty testifying on this point. He said after the service where she sat next to him, she looked at him and said "Merry Christmas" in a loud voice. He told her he didn't think she sat next to him by accident, and she said, "Yeah, I know."

[361] He said she then started attending the 9am service. He began seeing her regularly through February and into April. One day, near the end of April, he saw her sitting in front of him. He tapped her on the shoulder and said "hi".

[362] He said that after that encounter, he changed where he normally sat because "I didn't want to encounter or see her anymore".

[363] C.M. testified that on one occasion, she saw someone who she thought was the Defendant while at church. She said he tapped her on the shoulder after the service. She said she froze, then said, "I have to go, I'm going to get prayers". She then "made a very clear beeline to get away".

[364] I do not need to resolve this conflict in the parties' evidence for the purpose of this trial. The encounter took place some six years after C.M.'s last massage and is not connected to any alleged misconduct. I note only the incongruity in the Defendant saying how upsetting and unnerving seeing C.M. was, with him actively tapping her on the shoulder and saying hello. In any event, I do not put significant weight on this part of their evidence, collateral as it is to the charges.

[365] C.M.'s evidence is relevant only to the similar fact issues I have identified. That is, improper draping and the level of the Defendant's reactions in their therapist/client relationship.

[366] C.M. was a compelling witness. It was clear to me she did not wish to report any of her dealings with the Defendant to police or to anyone. It was the College and the police who came to her. She testified to the Defendant trying to remove the sheet from her body and to him moving her underwear in a way that exposed her vagina. I find her to have been a credible witness. She was questioned about her texts following the 16 July massage and provided an explanation. Had I been asked to accept C.M.'s evidence beyond a reasonable doubt, I may well have come to a different conclusion. The test, however, is whether I find her account to be more likely than not. Regarding the attempted removal of the sheet, I do find her evidence to be believable on a balance of probabilities.

[367] I have considered if I can make the same finding regarding her evidence about her underwear. After much consideration, I cannot. I accept C.M.'s evidence that she felt something brush over her vagina before the Defendant started massaging her inner thigh. She was candid in saying she did not look at what was happening. Can I say it is more likely than not that what she felt was the Defendant moving her underwear? No. It's equally likely that she felt the sheet moving across her genitals, and felt the Defendant tucking the sheet into her underwear. I am not saying I do not believe C.M.; I am saying I cannot find her assumption about what happened to be sufficient proof on a balance of probabilities.

[368] In the result, C.M.'s evidence regarding removal of the sheet will be admissible to bolster the credibility of the other witnesses who have claimed improper draping. Her evidence about her underwear will not.

[369] I have considered her evidence in its totality, together with the contradictory evidence provided by the Defendant, on the issue of his anger when she questioned his methods and ultimately ended their relationship. I find C.M. to have been a credible witness on this issue as well. I accept her evidence that she confronted him about the 16 July massage and that he reacted angrily. I further accept her evidence as to how his demeanour with her changed after that point, and about his anger at being questioned by her doctor. I find her evidence as to the issue of the Defendant being unusually persistent in trying to keep control of her as a client can form part of my credibility assessment for other witnesses. Specifically, this refers to J.S. and A.R.

The Expert's Report

[370] The parties filed an expert report in this case as part of an agreed statement of fact. The report was prepared by Simone Valere. Ms. Valere has been a registered massage therapist since 1997. She also holds a diploma in osteopathic manual practice and a bachelor of science degree from the University of Guelph. She has taken several additional courses and been retained as an expert witness by the College of Massage Therapists of Ontario on five occasions. On two of those occasions, in addition to authoring a report, she provided testimony. She also provided expert testimony in a sexual assault trial in 2021.

[371] Her report acknowledges her duty to be impartial in her review of this case.

[372] The qualification and acceptance of an expert witness relies on the four criteria set out by the Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9. Those criteria continue to be used by courts today. They are:

(1) Relevance (2) Necessity in assisting the trier of fact (3) The absence of any exclusionary rule (4) A properly qualified expert

[373] Ms. Valere is offered as an expert in the field of massage therapy. Her evidence is clearly relevant to the case before me. As well, this area is not one that is commonly known to the general population. Without assistance, I would be less able to evaluate the actions of the Defendant against the professional standards that governed him or what might be expected in a massage practice. Finally, I see no exclusionary rule that would prevent the reception of expert evidence in this case.

[374] Ms. Valere is a massage therapist of long standing. She has assisted both the College of Massage Therapists of Ontario as well as the Court by providing expert evidence. She states in her report that she understands the need to be unbiased and to provide evidence only on areas of her expertise. Having reviewed her qualifications, I accept Ms. Valere as an expert in all aspects of the massage therapy profession.

[375] It must be remembered, however, that her report is based on the statements of various witnesses. Ms. Valere was not present for the trial and so did not opine on the incidents as presented by the complainants in court. I must keep this limitation in mind when considering her evidence as it is the complainants' evidence that will lead to a decision in this case.

[376] The report stated that all massage therapists are expected to know the legislation and standards that apply to their work. It is part of their initial education and is also part of their yearly license renewal.

[377] Ms. Valere referred to the power differential that exists in the therapist/client relationship. This is from page 7 of the report:

Therapeutic relationships have an inherent power differential. In this case, the Massage Therapist would have an inherent power over the client in that the therapist is considered an expert in their field. For this reason, there is an intrinsic level of trust, compounded when the therapist has been referred to the client by someone they know and trust (as many of the complainants in this case were).

[378] The report then examined specific allegations against the Defendant.

[379] Regarding chest wall massage, the report confirmed this to be a valid therapeutic undertaking. At page 12 of the report, Ms. Valere set out "an inexhaustive list" of indications where chest wall massage might be useful. I note that increased athletic performance is not one of the listed indications, but again the list is not exhaustive. The agreed statement of fact that accompanied the report includes the statement that "reducing muscle tone to improve respiratory ability" is another indication for a chest wall massage. The effect of this part of the report is to confirm that chest wall massages can be a legitimate part of massage therapy.

[380] Massage of the breast itself can also be an accepted practice, so long as the client consents. Notably for this case, lymphatic drainage is listed among the conditions where massage of the breast may be indicated.

[381] It explained proper draping techniques and emphasized the importance of communication between the therapist and client to ensure client understanding and comfort. Exposing both breasts at the same time, and touching the nipple or areola (in the context of a chest wall massage) would both be breaches of professional standards.

[382] An important change came about in the profession on 11 September 2017. As of that date, written consent to treat sensitive areas was mandated. The report stated that written consent could be obtained for the gluteal area once at the beginning of a treatment plan, but that written consent for other sensitive areas such as the inner thighs, chest wall, and breasts, must be obtained at each session.

[383] Relevant to the present case, that change had not come into effect at the time of the Defendant's interactions with the complainants. The exception to that statement is his treatment of J.S., which began before the change and continued for years afterward. In her evidence, however, she testified to having no issue with the Defendant's massages until 2021, by which time he was no longer a registered massage therapist.

[384] There was not, therefore, any obligation on the Defendant to obtain written consent to treat sensitive areas at the time he was seeing the other complainants. J.S. takes no issue with the massages she received from 2017 to 2020, where there would have been such an obligation.

[385] There was, however, a duty on the Defendant to inform his clients why he was treating certain areas. As the report noted, there were complainants who felt ill-informed of the reasons he massaged certain areas. I remind myself that it is the evidence of the witnesses on which I must rely, not the statements used by Ms. Valere.

[386] The report also addressed the issue of draping. Unless the client wishes otherwise, only the area being treated should be uncovered. Ms. Valere fairly noted a situation where both breasts of a female client could be uncovered simultaneously. This is a "specialized lymphedema treatment" that still requires the consent of the client. The standard also requires a therapist to position themselves in such a way when the client is turning over on the table that they cannot see the client's body.

[387] Ms. Valere also stated that putting clients in what has been described in this trial as the butterfly position would not be standard practice. The client placing both legs in this position at the same time would not follow the practice of only treating one side at a time, and would potentially leave the client feeling vulnerable and uncomfortable.

[388] The report also contained several appendices. These included materials from the College of Massage Therapists of Ontario related to professional standards on which Ms. Valere relied in the creation of her report.

[389] In Ms. Valere's opinion, based on the statements of the complainants, the Defendant violated the standards of his profession in multiple ways. Improper draping, poor communication, and touching of complainants' genitals were all noted by her as examples of the Defendant falling short of the stated requirements.

[390] I have considered this report in light of the testimony I have heard. Based on the evidence, much of what Ms. Valere found was borne out. Evidence I have heard and accepted described improper draping and undraping, the touching of forbidden areas, and massages undertaken with little or no medical explanation. Further, the actions and words of the Defendant when questioned or when complainants sought to cease their relationship with him, could certainly be seen to have crossed the boundary of professionalism set out in the materials.

[391] I want to be clear that the Defendant is not on trial for being a bad massage therapist. He can fall short of the standards for massage therapy without being found criminally liable for his actions. I am not tasked with making findings related to the materials set out in the expert report. I am solely concerned with whether the Crown has met its burden in proving the charged offences.

[392] That said, the content of the report is useful to me as evidence of the Defendant's approach to his work. The concerns set out by the complainants in their evidence were all confirmed to be violations of his professional standards and ethics. In my view, this shows a reckless disregard towards his obligations as a therapist. Rather than the knowledgeable, careful practitioner he portrayed himself to be, the Defendant has been shown to engage in repeated professional misconduct. This extended to his conduct during massages and to his pushing of personal boundaries, as with the repeated attempts to connect with A.R. on social media. Whether any of that misconduct rises to the level of criminal offending is the question in this trial.

[393] Before leaving the expert report, I remind myself that as of 2020, the Defendant was no longer acting as a registered massage therapist. The standards and expectations of the profession no longer applied to him. This affects his later dealings with J.S., at which point he was simply a masseur. Ms. Valere confirmed that anyone can use that title as it is not regulated.

The Defendant's Evidence

[394] I have already reviewed the Defendant's evidence in my assessment of each count. As my count-by-count review of his evidence should not and cannot be carried out in vacuums, I will make further observations on his evidence as a whole. These observations should be taken as informing my count-specific determinations as well.

[395] I remind myself that criminal trials are not credibility contests. There is a temptation, when trial evidence is one person's word against another, to choose the preferred account. Doing so is an error of law in the criminal context. It relieves the Crown of its burden to prove offences beyond a reasonable doubt. A defendant does not have to convince the trier of fact of anything; the burden always remains entirely on the Crown to prove guilt.

[396] On key points, I do not find the Defendant to be a credible witness. I accept that he is or was an expert in the field of massage therapy. He made his knowledge clear throughout his testimony. That he was an effective therapist is a point made by several complainants. That is not an issue.

[397] If anything, this knowledge and expertise undermine his claims of accident. It is simply not credible that a person so well-informed on the techniques and practice of massage therapy would, over and over, accidentally engage in conduct that left the complainants feeling they'd been touched vaginally. I reject his suggestion that in each case, perhaps it was the sheet they felt moving, and mistakenly thought it was his hand.

[398] I am unable to accept his evidence as a believable description of his dealings with the complainants. I have set specific examples of why that is in the reasons above. I found the Defendant to be a difficult and frequently non-responsive witness. When asked simple questions, he often gave lengthy technical explanations that had little to do with what he was asked. I further note that credibility or reliability issues in the Defendant's evidence that arise with respect to one complainant can and should be considered in my assessment of his evidence related to other complainants and overall.

[399] A court should not place undue emphasis on demeanour evidence. Testifying is a difficult task for anyone. It brings out nervousness and causes stress even to experienced witnesses. I must, however, disagree with counsel's suggestion that the Defendant was flustered in giving his evidence. On the contrary, I found the Defendant to be very controlled and deliberate in his testimony. He had extensive technical knowledge and bristled at that knowledge being questioned.

[400] It is striking to me that at times his recall of complainant appointments was astonishingly complete. When asked about S.D., he listed from memory seventeen different areas of her body that they discussed treating. But again with S.D., he couldn't remember if he ever charged her for the second hour of her massage. The result of this intermittent memory (together with the other concerns I've detailed) is that I simply cannot accept his evidence.

[401] I recognize that I have viewed the Defendant's memory lapses as detrimental to his credibility and reliability, while excusing to some degree the memory lapses of some complainants. Lest I be thought to have applied uneven scrutiny to the witnesses' evidence, I will address that concern.

[402] The memory lapses of the complainants often related to peripheral events, like what was discussed at initial meetings. I have addressed situations where important points were left out of a police statement but testified to at trial, such as A.R.'s evidence about the touching of her breasts, or J.P.'s failure to use the word "cupping" when telling police how the Defendant touched her breasts. I have noted the impact of trauma on a person's ability to recall events completely and immediately. I have stated in the foregoing reasons why I have accepted the evidence I have, despite potential memory concerns. As can be seen, there have also been occasions where complainants' memory issues have played a role in my rejection of their evidence to the required standard.

[403] The memory issues of the Defendant, however, are of a different sort. Where the memory issues of complainants could be said to have weakened the substance of their testimony, the Defendant's intermittent memory came and went in self-serving and inexplicable ways. When he testified about the specifics of his physical motions at the time of the alleged misconduct, he remembered precisely where his hands were, how long he treated various body parts, and even how many times per second he would move his hands. But when asked about his objectively loose billing practices, he claimed he couldn't remember how much (or even if, in the case of S.D.) he charged his clients. How the self-professed "highest paid massage therapist in Canada" would have almost no memory about billing makes little sense. As another example, he remembered the exact words used by complainants at the moment of questionable conduct, like J.S. saying that she knew he didn't mean to come too close to her vagina, he wasn't doing anything wrong, and he was doing what he told her to do at the time of the see-saw incident. But he also could not remember something as basic as whether he treated one or both sides of E.S.'s chest. The context in which the Defendant's memory lapses arose are markedly different, both in kind and in import, than those of the complainants. They do not warrant equal treatment.

[404] I do not find his blanket denials of wrongdoing, or possible innocent explanations, believable, nor do they leave me with a reasonable doubt.

The Result

[405] This has been a difficult case. The trial has been very lengthy. The evidence has been voluminous. The findings I have made are a result of considering all evidence in this case bearing in mind the burden on the Crown. The Crown has proved most, though not all, counts beyond a reasonable doubt.

[406] The Defendant will be found guilty of counts 1, 2, 3, 4, 5, 7, 8, and 9. He will be found not guilty of counts 6 and 10.

Released: 18 September 2025

Signed: Justice S. G. Pratt