COURT FILE NO.: CR-18-66
DATE: 2021 Sep 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
COEL FRANCIS FINDLAY
Accused
Elisabeth Foxton, for the Crown
Pieter Kort, for the Accused
HEARD at Kingston: August 16, 17, 2021
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Tranmer J.
REASONS FOR DECISION
[1] Mr. Findlay is a registered massage therapist (“RMT”).
[2] He is charged with one count of sexual assault alleged to have been committed against a client, who had scheduled a treatment session with him, on February 2, 2017.
[3] The primary issues in this judge alone trial are, generally stated, what did Mr. Findlay do to the complainant, and did the complainant consent to what he did.
[4] The Crown called the complainant, her previous, regular massage therapist and an expert witness who was qualified to give opinion evidence on the relevant subject matter.
[5] The defence called Mr. Findlay as a witness.
THE EVIDENCE
[6] The allegations arise from treatment performed by Mr. Findlay on the complainant at the end of their session on February 2, 2017. The subject treatment followed treatment while she was on her stomach and occurred while she was lying on her back on the treatment table.
1. The complainant, J.C.
[7] She is involved in the healthcare profession as an ophthamology technician.
[8] She had attended at the Annex Spa for massage therapy treatments both before and after back surgery in the fall of 2016. Her regular therapist was Tiffany Brick. Her treatments were for lower back issues mainly, but also in the areas of her hip, hamstrings, shoulder and often a scalp massage. Her surgeon had recommended physiotherapy and massage therapy.
[9] When her regular therapist was not available, she set up sessions with Mr. Findlay who she knew to be a therapist at the Annex Spa.
[10] She booked appointments with him for January 17, January 24 and February 2, 2017.
January 17, 2017
[11] The first session involved a get to know you. She told him that Ms. Brick was her primary therapist, that she had had back surgery and that the doctor recommended massage therapy, that she was using a walker and a cane, and that she suffered from foot drop of her right leg.
[12] In the first session, she noticed that his procedures differed somewhat from those of Ms. Brick, including in how he draped her body during treatment. She felt she was much more exposed. She did not raise this with him because she felt she should not question him as to how he did things.
January 24, 2017
[13] The next session on January 24 involved treatment that was different to what Ms. Brick had provided. Mr. Findlay worked on her chest and pectoral area, which Ms. Brick had not done previously. He explained that it was important to open up the chest area because she was using the walker and the cane. On this occasion, the manner in which he draped her, left her feeling quite exposed. During the treatment, which went low on her chest, she felt uncomfortable and felt that he should have picked up on her squirming and tucking the sheet back in by herself to limit her exposure.
[14] She did not say anything to him because she did not feel comfortable to do so, there was a power imbalance because she was lying naked on the table.
[15] She testified that before he started this treatment, he did not explain what he was going to do, and he did not ask for consent. While he was massaging her, he explained the need to open up her chest area.
[16] He also worked on her glutes area during the second session and again the draping concerned her.
[17] She testified that during this session, he commented that he sleeps naked with fans on him. She told him that she had recently lost her significant other.
February 2, 2017
[18] At the outset of this session, he commented on how good her sweater looked on her and he touched it. She found this odd.
[19] She told him that she had issues with her sciatica and sacral iliac joint.
[20] At the outset of this session, as in the previous sessions, he removed the heavy blanket that was on top of her and he treated her with just the sheet covering her. She wore only her underwear.
[21] The treatment began with her back and glutes. She was face down on the table.
[22] She testified that as usual, they talked throughout the session, as she did with Ms. Brick. She testified that she asked questions so that she could report back to her surgeon.
[23] After he had worked on her back and glutes, about three quarters of the way through the session, he asked her to turn on to her back on the table. He talked about the hip and the pelvis being all connected.
[24] He put the palm of his hand on her vagina with his fingers pointing up toward her head. His hand was on top of the sheet. He moved his hand to the left in a circular motion. In examination in chief, she said that he touched her vagina with the meaty part of the palm of his hand with his fingers pointing up. She said that she felt like he was cupping her entire vagina over her clitoris.
[25] She asked him what he was doing. He said he noticed something when he was working on her back.
[26] He repeated this action a second time. Then he asked her to put her left leg up onto the table and to push her left knee into his palm. She expressed discomfort and he told her that people undergo anal adjustments so that what he was doing was not so bad.
[27] She said she was panicking about what was going on. She asked him what was going on and why.
[28] He repeated the action a third time and then he tapped her knee and said that it was okay now.
[29] She testified that he did not tell her that he was going to touch her vagina and he did not get her consent to do so.
[30] On each of the three occasions, he touched her vagina for 10 to 20 seconds with just his one hand. She asked him a bunch of times what he was doing and why. Each time, he answered that he noticed something while she was on her stomach. He would not stop touching her vaginal area.
[31] She testified that she did not consent for him to touch her in that area.
[32] She said that she trusted him as a professional during one of the sessions, but it was not in connection with giving her consent to be touched in the vaginal area.
[33] She testified that when he first touched her vagina, she winced and jerked in reaction. This was because she was tender, and it was a personal moment.
[34] She thought that there must be a medical reason for what he was doing. He was the first male person to touch her intimate parts since she had lost her significant other.
[35] She said that when he left the room, she started to cry. She felt that she had been assaulted.
[36] She said he never explained to her what he was doing and why, his only comment was that he noticed something while she was on her stomach.
[37] She testified that during that third session, Mr. Findlay did not say the words pubic symphysis. He did not say that he wanted to treat her pubic area. She did not recall him making any reference to alignment. All that he said was that he had noticed something while she was on her stomach.
[38] She had never complained of pain in her pelvic area or upper thighs and she had no such pain.
[39] She was asked specifically whether Mr. Findlay was touching near her pubic bone when he was touching her vagina, and she responded that he was below her pubic bone.
[40] She pointed out that her right leg was never up on the table because of the foot drop problem, she could not get it up onto the table.
Facebook Messages
[41] The next morning, February 3, 2017, she sent a Facebook message to Ms. Brick. There followed a series of Facebook messages back and forth into the middle of February 2017.
February 9, 2017
[42] She met in person with Ms. Brick to discuss what had happened. After this meeting, she was 100% sure that she had been sexually assaulted.
Complaint to College
[43] Subsequently, Ms. Brick and she both made complaints to the College of Massage Therapists for Ontario.
Complaint to Police
[44] She made a video recorded complaint to the police in September 2017. She understood that the college process could take years.
Cross-examination
[45] She agreed that when she was being treated by Ms. Brick, they would talk about what treatment was going to take place, Ms. Brick would say what part of her body she was going to work on and the complainant would say okay. Consent was arrived at in a conversational manner.
[46] A point of the cross-examination highlighted the evolving description by the complainant as to what Mr. Findlay had done to her, with the suggestion that on each successive recounting of what he had done, her allegations were of more aggravating conduct on his part.
Facebook Messages with Ms. Brick
[47] On the morning of February 3, she wrote that he had “mentioned about the hip and groin and pubic bone being all connected” and “asked if that was fine” and that she had responded, “You’re the professional so do what you feel is best.”
[48] She continued that what he had done involved her pubic bone, and described him putting the palm of his hand “to the pubic bone fingers up, like using the palm of his hand for the pressure and pushing upwards on the pubic bone, which is like the top of the vagina.”
[49] She wrote that she winced because it was painful.
[50] She testified in cross-examination that he did not say that he was going to manipulate her pubic bone or that he was going to touch her vagina.
[51] She testified that she was referencing the “pubic bone” at this time because she was afraid to accuse him until she knew for sure. She said also she did not want to get Ms. Brick into trouble or affect her business until she knew for sure. She also testified that it would be embarrassing to her to divulge to Ms. Brick that he had touched her vagina and clitoris.
[52] In a later message on February 3, she wrote that he had “asked if he could work on everything, which I of course said you’re the professional, cuz how would I know what would help me.” She repeated that he pushed with his low palm on her pubic bone and shifted to different spots of the pubic bone and then brought her legs up.
[53] She testified that at no time did she consent to him touching her vagina.
[54] She testified that on February 9, she met in person with Ms. Brick and as a result of that discussion, she felt certain that she had been sexually assaulted.
[55] On February 15, she wrote “I don’t know how you could think your palm where my clitoris is, would be anywhere the pubis.” She wrote that “the circular/side-to-side motion right there plus the bending of the leg and pushing the knee almost opening my leg up kept replaying” over and over in her mind.
[56] She said that she referred to him touching her clitoris on this occasion because she was now comfortable to divulge that information.
Rebuttal to College Response – May 2017
[57] It was pointed out to her that she wrote that she was upset and disgusted and sick to her stomach that Mr. Findlay would say that she stopped him in the middle of explaining why he was on her pubic area saying something to the effect that I trust you you’re the professional.
[58] The point is that this is inconsistent with her Facebook messages, of February 3, where she wrote that she did say that.
[59] She testified that she never said for him “to work on everything” in connection with respect to touching her vagina.
Police statement - September 14, 2017
[60] She described to the police officer that he had the palm of his hand facing towards her face, “his palm literally is on my vagina like, not my pubic bone…”. “This part of his palm was so far down enough that it was like below like where my clitoris is”.
[61] She said that she “literally jumped so far off the bed because it completely startled her”.
[62] She told the police that his response that he had asked for her consent and that in midsentence she stopped him and said “you’re the professional I trust you to do whatever you want”, makes her sick. She denied making any such statement to him “nothing was even mentioned about anything”.
[63] It was pointed out that this is in contrast to her Facebook message of February 3, as noted above.
[64] She responded that that was because he had made no reference to her vagina. She did not think that there were any references made by him to her vagina. She did not feel comfortable being videotaped in the police station concerning such things.
[65] She agreed that she knew where the pubic bone was on her body, above her vagina.
[66] She confirmed that after he had her turn over from her stomach onto her back, that is when he talked about the connection between the hip, pubic symphysis and groin and pelvis and that he had noticed something while she was on her stomach. She agreed that she replied you’re the professional do what you think you should.
[67] At this point in her testimony, when asked to confirm that it was only the palm part of his hand that touched her, she replied, “No”, his fingers touched my vagina too. This was the first time that she had ever made that allegation, Facebook messages, in person meeting with Ms. Brick, College complaint, police statement, preliminary inquiry testimony. She explained that she had used the term “cupping” previously and that that meant using his fingers. She agreed that she had never used the words “fingers” in describing what he had touched her vagina with, she used the word “cupping”.
[68] She confirmed that, at no time, did he explain to her that he was doing a pubic adjustment or use the word malalignment. There was no conversation about activating her groin or her pubic bone.
[69] She testified that at each session he did not get her consent in advance, but rather he would explain what he was doing as he did it.
[70] It was pointed out to her that her testimony in chief was that it was on the February 2 date that he mentioned that anal adjustments would be worse than what he was doing to her. She was referred to her 2 Facebook messages on February 13, where she had written that that had occurred on the second session. In cross-examination, she tied that comment, to after she had winced when he touched her vagina on February 2nd, the 3rd session.
2. Tiffany Brick
[71] She was co-owner of the Annex Spa and was the complainant’s regular massage therapist. She had treated the complainant on and off for about a year prior to January 2017, six or seven times. She was seeing Ms. Brick because of struggles with her back.
[72] They would assess what treatment was required each time she would come in. She was treating the lumbar, glutes and hips. She described that the first 30 to 40 minutes of the appointment would be on the glutes and lower back with the complainant face down on the table. The last five minutes of the session would involve the complainant faceup on the table and treatment to the shoulders, neck, head and pectorals.
[73] She testified that she required consent for assessment and for treatment. She testified that she would not seek consent for the same work on each occasion for the same client. At the relevant time, written client consent was not required by the College.
[74] The college did require verbal consent before treatment was commenced.
[75] She described where the pubic symphysis is located on the body between the two pubic bones on each side. She has never been taught to manipulate the client in that area and has not done so as part of her practice. She had no reason to believe that the complainant required treatment in that area and the complainant had not asked for such treatment of her.
[76] She testified that touching of the genitalia is not part of any RMT practice. Touching the vagina is not within the scope of RMT practice, nor is touching a man’s penis or testicles or a woman’s nipples.
[77] The only areas that the complainant asked her to focus on were her lower back and right hip.
[78] A client can revoke her consent during treatment and the clinician can also notice cues such as squirming or emotion during treatment.
Meeting with Mr. Findlay
[79] When she first learned of the complaint, and before she met with the complainant, she met with Mr. Findlay with her business partner. He said that he had performed a pubic adjustment. He said nothing about obtaining her consent. He did not say how he had explained that treatment to her. He said that such treatment was indicated.
[80] She asked him to show her what he had done. She lay on her back on a table. He palpated the top of her anterior hip bones and iliac crest with both hands moving to the top of the pubic bone. She stopped him. She felt his hands were very close to her genitalia, despite the fact that she had her clothes on. She told him that he was in close contact with her genitalia. She cannot recall whether at that point he had one or two hands on her. She described that he was working with the base of his hand and palpating with his fingers pointed towards her head and that the palm of his hand was touching her body.
[81] When asked whether he had done this before, he said that he does it all the time. They told him not to do it at their spa.
[82] She confirmed that she met with the complainant following her meeting with Mr. Findlay.
[83] In cross-examination, she confirmed that during treatment a therapist might assess another issue and the treatment plan could change.
[84] She confirmed that during his demonstration to her of what he had done, he contacted her pubic bone. She confirmed that that was pretty close to her genitalia.
[85] He told her that he had taken an additional course to learn about such treatment.
3. Jason DuBois
[86] The Crown called Mr. Dubois as an expert in massage therapy treatments and protocol to offer opinion evidence with respect to massage therapy, protocols, procedures and scope of practice. The defence conceded his expertise and agreed that he was qualified to give such evidence. After hearing evidence concerning his qualifications and experience and education, I accepted him as an expert as proposed.
The Pubic Symphysis
[87] Exhibit 5 is a diagram showing the pelvic bones, and the pubic symphysis. It is located just above the genitalia. It is a cushion attached to and between both sides of the pubic bone.
[88] He was asked whether manipulation of the pubic symphysis is taught to RMT students. He said that there are joint mobilization techniques taught. Students are not taught to make direct contact with the pubic symphysis itself. He said to do so is out of the scope of RMT practice.
[89] He said you can palpate this area with your fingers. You start at the hip bones and palpate down with your fingers. The fingers are moving down each side of the abdomen but not into the genitalia area. This technique is used to assess whether there is an imbalance in the anterior [front] of the pelvic bones.
[90] He testified that if one finds an imbalance, one determines why it exists. It could be that a muscle is weak on one side or that there’s been a recent pregnancy or that one’s posture causes related issues. He said that lower back issues may cause a person to move or hold his or her body in a certain way.
[91] He said that RMTs do not work in the area of the pubic symphysis in their practices. There is no legitimate issue that arises in the practice of an RMT such that they are taught to address that area of the human body.
Consent
[92] He testified that the RMT obtains informed consent, before any treatment or touching begins, before the client undresses.
[93] The therapist must inform the client of all aspects of the treatment to be performed. The consent is designed around the goals, benefits, risks and side effects of the proposed treatment.
[94] The consent involves the therapist telling the client how to get onto the table, how to dress, advising the client that he or she at any time can ask a question, empowering the client that if he or she feels uncomfortable he or she can stop the treatment or adjust the treatment method.
[95] There is an initial consent, obtained before the informed consent, during which the client is interviewed about his or her case history and health. The therapist and the client put together an assessment protocol of consent to do these tests to determine what and how to treat the client.
[96] He testified that if in the course of a massage treatment, the therapist discovers a new area that requires treatment, he would make a note of that, and discuss it with the client after the subject treatment and follow-up in a next appointment with a new consent for that procedure on that new part of the body. This is because no consent had been obtained in the current session to do it in the current session. That is what an RMT is taught.
[97] He testified that it is, in his opinion, never appropriate during a massage treatment to try to get consent for a new treatment on a new body part.
[98] He testified that an RMT would never have a reason to touch a person below the pubic bone on the front of her body.
Cross-examination
[99] He agreed that a pubic symphysis dysfunction is an asymmetry in the pubic bones where they meet. He agreed that if there were a misalignment of the pubic bones where they meet, it could be concluded that the person suffered from a pubic symphysis dysfunction. He agreed that to assess for misalignment it would help to touch the area of the pubic bone.
[100] He agreed that an RMT is trained to do joint mobilization.
[101] He agreed that to treat a misalignment of the pubic bone, one would apply pressure to one side of the pubic bone or the other. Another indirect way is by muscle activation, by putting the fist on the inner knee of a client and having the client push inwards.
[102] It was put to him that one would use one’s hand to treat pubic symphysis dysfunction if an assessment disclosed an asymmetry of the pubic bones. He testified that he would not use the palm of his hand. He had demonstrated coming down with his fingers pointed downwards along the sides of the abdomen. His hand would not come in and upward toward the head direction.
[103] He agreed that one would have to put part of the hand on the pubic symphysis with some pressure, on whatever side is misaligned. He said this is within the scope of practice for an RMT. He said this is taught. This is contrary to his evidence in chief.
[104] He repeated in cross-examination that if during the course of the treatment to which he had already obtained consent, he identified another part of the body that required treatment, he would not treat the new area of the body at that time because it requires an additional consent for a new part of the body. That treatment would take place at a subsequent session for which consent had been obtained.
[105] He agreed that if a client was suffering from sacral iliac joint pain that could be because by a misalignment of the sacrum because the sacrum had rotated out of position.
[106] He agreed that the SI joints are connected with the pubic area.
[107] He testified that it “could be” that an RMT would think that an SI misalignment was being caused by pubic symphysis dysfunction. Pubic symphysis dysfunction could be a cause of SI pain.
[108] He agreed that to assess whether it was the cause, one would do the procedure that he had described with his fingers palpating downwards on either side of the abdomen.
4. Coel Findlay
[109] He is presently 35 years of age. He has no criminal record.
[110] He graduated from University with a degree in kinesiology.
[111] He took a two-year RMT course graduating in 2014. Initially, he taught at the college, then he took on employment at the Annex Spa in January 2017.
[112] In chief, his testimony focused on the session that occurred on February 2.
[113] He testified that while they were both fully clothed, there was a pre-treatment interview. He asked her how she felt and how the prior treatments had been going and what the treatments would be that day.
[114] He said that she said she had a painful SI joint. That is consistent with her testimony.
[115] He stated that they agreed on the areas of the body that he would work on. He instructed her to get onto the table.
[116] He said that he got consent before he left the treatment room, then he left, and knocked before he re-entered.
[117] She was lying face down under the blanket and sheet.
[118] He treated her lower back, hips, glutes and sacrum for 50 to 55 minutes. The last thing he did was to mobilize her sacrum.
[119] She turned face up.
[120] He testified that he had mobilized her sacrum and that this was the third occasion during treatment that he had done that. He testified that he had done that in each of the first two sessions as well.
[121] He testified that he told her that the underlying cause was pubic symphysis dysfunction. He told her that he had taken a course about such treatment.
[122] He testified that he explained to her that he could test to see if the two pelvic bones were misaligned.
[123] He testified that in the middle of his explanation she interrupted him and said, “You’re the professional. I trust you.”
[124] He understood that this meant that she understood and that she trusted him and that she consented to him treating her pubic symphysis.
[125] He then did an assessment of the pubic symphysis to see if there was a misalignment. He used both hands. He said that his thumbs and index fingers landmarked the top of the hip bones. He said that he then used the heel or palm of his hand and moved down onto her pubic bones. This orientation of his hand and fingers is consistent with the testimony of the complainant, but she said that he moved his hand in an upward direction, and that he used only 1 hand.
[126] He testified that when the heel of his hands covered the pubic symphysis, he could feel the pubic bones. He determined that the right side was pushed forward.
[127] He testified that he did a joint mobilization. His fingers were pointed up. He tried to push the right pubic bone down to the table and up to her head.
[128] He testified that he then asked her to bend her knees so that her feet were flat on the table and then put them down again. She had testified that she was unable to do that with her right leg.
[129] He testified that he then repeated land marking the top of the hip bones. He did this to check if he had mobilized the right pubic bone, but he found that it was still forward.
[130] He said that he again asked her to bend her knees so that her feet were flat on the table. He had her press her knees into his fist and elbow. Then he asked her to put her legs back onto the table
[131] He testified that he repeated land marking the hip bones a third time. He used the palm of his hand to check for pubic bone alignment and found that there was now no misalignment.
[132] That was the end of his treatment.
Cross-examination
[133] He testified that there was conversation during each session mostly about the treatment, but some small talk. He said he was not aware that her fiancé had passed away. He knew that she knew he had a wife and daughter. He denied making any comment about his sleeping preferences. He said there was one occasion that she had a nice sweater, but he did not say that she looked good in it and he did not touch it.
[134] On January 17, the session was one hour. On January 24, the session was 45 minutes. On February 2, the session was 60 minutes.
Previous observations of Rotated Sacrum
[135] Although his testimony is that he had noted this problem and treated it on the two prior occasions, it was not raised at the outset of the February 2 treatment session.
[136] He responded that it was only after he had done work on her sacrum for a third time that “it occurred to me that there may be an underlying cause and I explained it to her”. He agreed that it would have made sense to have discussed that at the beginning of the third treatment session because he had noticed it and treated it during the first two sessions, but he explained that at that point had not yet noticed that her sacrum had rotated out of position a third time. It had not yet occurred to him that there may be an underlying cause.
[137] He said it was only after he had rotated her sacrum again for a third time on February 2, that it occurred to him that there may be an underlying cause.
[138] He agreed that she did not tell him that she had pain in the pelvic area or radiating pain and she did not ask him to investigate that area of her pelvic bones.
[139] He could not recall where his hands were during the treatment to mobilize the sacrum, which he had done at each of the three sessions.
[140] It was pointed out to him that in contrast, he gave a detailed account as to how he did the pubic symphysis treatment, which he had only done once with respect to the complainant.
[141] He testified it is because he had taken the additional course with respect to pubic symphysis treatment that he had that recollection. In contrast to what he said to Ms. Brick, “lots of times”, he told the Crown that he had only done the pubic symphysis procedure 5 to 10 times and added that it was on males and females. He also said that to treat the sacrum can be done in different ways and therefore, that is why he could not recall.
[142] He identified the name of the course, who taught it, at what college and that it was a two day course. He had taken it in late 2014 or early 2015. He said he had never had to refer back to the materials from the course because it was fresh in his mind. He agreed that he had taken the course some two years before treating the complainant. He was not challenged on this evidence.
Consent
[143] He agreed that he had discussed with her his observations, that this was the third time he had noticed her sacrum had rotated, and that that may be related to the pubic symphysis and that he had specialized training in that procedure. He agreed that he explained to her his assessment, and why the pubic symphysis treatment was indicated and what areas of the body that it would involve but that in the middle of that she said to him, cutting him off, that he was the professional and that she trusted him.
[144] He was asked what he had not been able to tell her so far as the matters that relate to informed consent were concerned before she interrupted him. He responded, “I don’t remember”. He testified that he had not explained everything to her. He testified that he explained what he could before she interrupted him. He said it took seconds explaining these things to her.
[145] He agreed that there are a lot of things involved in obtaining consent including empowerment, the ability to modify the treatment and confirming with the client that he or she could stop the treatment at any time. He testified that “I did not get to say this to her”.
[146] On his testimony, it is unclear where in his explanation to her to obtain consent to this new treatment on a new area of her body, he got to before she interrupted him.
[147] He testified that she cut him off before he explained fully everything that would lead to informed consent.
[148] He could not state what he had been able to tell her or what he had not been able to tell her before being cut off.
[149] The fact that she cut him off indicated to him that she was aware of what part of the body was going to be touched and why she was going to be touched.
[150] He testified that he did not say that she knew everything she needed to know. He testified that he thought she was aware of everything she needed to know. That was because he understood her to be a competent adult experienced with massage therapy and consent.
[151] He testified that she would not have cut him off if she had not heard enough.
[152] “I took that as consent”.
[153] He testified that he took her interruption to mean that she did not need to hear the remaining part of the treatment that it meant she was giving him consent to proceed.
[154] It was put to him that he had more to tell her and therefore she did not consent. He disagreed.
[155] It was put to him that he knew that the procedure meant that his hands would be close to her vaginal area. He replied, “that did not occur to me”. He testified that he did not know the distance between the pubic symphysis and the vagina. It had not come up to him previously. He believes that they are close.
[156] When it was put to him again that it should occur to him that his hands would be close to her genitalia, he replied that he did not think of it.
[157] Although he agreed that there are special considerations for consent to touch a client in this private area, it did not occur to him.
[158] He said he thought that she would know where her pubic region was.
[159] He disagreed that she was unable to lift her right leg onto the table. He maintained that she had both knees up and feet flat on the table.
[160] He disagreed that when he pushed down towards the table and up towards her head on her pubic bone that that was a circular motion.
[161] He agreed that there were three times he put his hands on her pubic symphysis region.
[162] He confirmed that the discussion concerning the pubic symphysis assessment and the treatment that he described took 90 seconds to 2 minutes. He testified that during that period of time she asked no questions, she was silent.
[163] He agreed that the initial discussions on February 2 involved consent to treatment in the SI area but that that consent did not include the pelvis, pubic bone or pubic symphysis.
[164] He disagreed with the evidence of the complainant that he worked on her with only the sheet covering her. He said he used the blanket to cover her. When pressed as to whether he treated her over the blanket, he responded that he could not recall specifically. He agreed that he told the College that he performed the pubic symphysis over the blanket. He then said that he did not understand the question, but thought counsel was speaking about his treatment of her glutes. He said that he performed the pubic symphysis always over the blanket and sheet.
LEGAL PRINCIPLES
[165] The legal principles that are particularly relevant to this case are as follows:
1. Presumption of Innocence
[166] Every person charged with an offence including Mr. Findlay is presumed to be innocent, unless and until Crown counsel proves his guilt beyond a reasonable doubt.
[167] The presumption of innocence means that Mr. Findlay started this trial presumed to be innocent of the specific crime with which he is charged. This presumption of innocence stays with him throughout this trial, including your deliberations. The presumption of innocence is only defeated if and when Crown counsel satisfies the Court of Mr. Findlay’s guilt of the offence charged by proving every essential element of that offence beyond a reasonable doubt.
2. Burden of Proof
[168] The obligation to prove Mr. Findlay’s guilt rests with Crown counsel. From start to finish, that obligation never shifts. Mr. Findlay does not have to present evidence. Mr. Findlay does not have to prove anything. To be more specific, Mr. Findlay does not have to prove that he is not guilty of the offence charged or is guilty only of some less serious offence than the offence charged.
[169] To prove Mr. Findlay’s guilt of an offence, Crown counsel must prove each and every essential element of that offence (but only the essential elements), beyond a reasonable doubt. This requirement, as I have said, applies to each and every essential element of an offence, but not to individual items of evidence introduced at trial.
[170] I must find Mr. Findlay not guilty of the offence charged unless Crown counsel proves all the essential elements of that offence beyond a reasonable doubt.
3. Reasonable Doubt
[171] The phrase, “beyond a reasonable doubt”, is a very important part of our criminal justice system.
[172] A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence (lack) of evidence.
[173] It is not enough for me to believe that Mr. Findlay is probably or likely guilty. In those circumstances, I must find him not guilty, because Crown counsel would have failed to satisfy me of his guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.
[174] I should also remember, however, that it is nearly impossible to prove anything to an absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. However, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.
[175] If, at the end of the case, after considering all the evidence, I am sure that Mr. Findlay committed the offence, I should find Mr. Findlay guilty of it, since I would have been satisfied of his guilt of that offence beyond a reasonable doubt.
[176] If, at the end of the case, based on all of the evidence or the absence (lack) of evidence, or the credibility of one or more of the witnesses or the reliability of his or her evidence, I am not sure that Mr. Findlay committed the offence, I should find him not guilty of it.
4. Sexual Assault/Therapeutic Context
[177] In R. v. S.L., 2020 ONSC 4036, Justice Lemon dealt with a scenario similar to that in this case. He observed at paras. 108 and 120:
108 In R. v. Clottey, 2018 ONCJ 536, Brown J. summarized that:
487 Sexual assault is defined as intentional, non-consensual touching, occurring in circumstances of a sexual nature. Whether circumstances of a sexual nature are present in a given situation is determined on an objective test by the trier of fact.
488 No specific sexual intent or motivation is required for a finding of sexual assault. However, the intent of the accused is one of several factors to consider in determining whether the alleged conduct is sexual, including the situation in which it occurred, any words and gestures accompanying the act.
489 Doctor-patient sexual assault cases are somewhat different from other sexual assault cases because there can be legitimate medical reasons for a practitioner to examine a patient's sexual organs. So the "part of the body touched"-admittedly a relevant factor as per Chase - requires contextual consideration.
490 So long as the practitioner has a valid medical purpose and, objectively, a legitimate reason for examining the breast or genital area, then unless the touching is of a sexual nature, the part of the body touched is of less significance in the analysis. That is why the British Columbia Court of Appeal in R. v. Buna and the Supreme Court of Canada in R. v. Litchfield have emphasized that in order to convict a physician in this context, the doctor's touching must have been of a sexual, and not simply medical, nature; the doctor's touching must have been used to "sexualize" the interaction.
491 R. v. Maurantonio raised the question of what a patient actually consents to during a medical examination. That case stands for the proposition that patients can only provide consent to a bona fide medical examination, conducted for a legitimate medical purpose.
493 The appropriate question to ask is whether the examinations were "medically justifiable" or "clinically reasonable" rather than "clinically necessary," as doctors may often disagree as to whether a medical test or exam is strictly necessary or not.
499 Patient perceptions, while obviously relevant, are not determinative ...
501 Where there was a legitimate medical rationale for the examination, and the examination was not performed in a sexual fashion, there can be no finding of a sexual assault. [Citations omitted, emphasis in original]
120 The Crown relies on R. v. Chase, 1987 CanLII 23 (SCC), [1987], 2 S.C.R. 293, where it is said:
Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer" The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. [at p. 302, citations omitted]
[178] Justice Mossip dealt with a similar issue in R. v. Lai, 2020 ONSC 231:
ii. Essential Elements of the Offence of Sexual Assault
10 In order for me to find Mr. Lai guilty of sexual assault against any of the complainants, the Crown must prove beyond a reasonable doubt the following elements of the offence:
Mr. Lai knowingly touched a complainant;
The touching of a complainant was of a sexual nature; and
The complainant did not consent to the sexual touching.
11 With respect to C.B. and L.B., the main issue the defence submits is whether the touching, which forms the basis of the charges, was of a sexual nature.
12 If I find the touching was not of a sexual nature, I must find Mr. Lai not guilty with respect to these complainants.
13 If I find the touching was of a sexual nature, the issue of consent to that touching must be analyzed in a medical or clinical context. More will be said about this issue below.
[179] In Lai, unlike the case of Mr. Findlay, the Crown did not argue that the complainants had not consented to the appropriate therapeutic treatment. Justice Mossip stated:
337 The Crown also did not argue that the complainants had not consented to Mr. Lai touching them for appropriate clinical touching or diagnosis.
338 In a recent decision, R. v. R.K., 2018 ONSC 2590, Justice de Sa, had to consider whether a doctor improperly touched two separate complainants during the course of medical examinations he carried out on them.
339 I agree with the following paragraphs from the above decision as to what I must consider in deciding if the touching in question was of a sexual nature:
89 ... all the circumstances surrounding the conduct in question will be relevant to the question of whether the touching was of a sexual nature and violated the complainant's sexual integrity.
90 As the Supreme Court explained in R. v. Litchfield, the importance of looking to all the circumstances surrounding an accused's impugned conduct is particularly important where the allegation is made in the context of a doctor-patient relationship. In this context, the complainant has consented to some touching but not to touching of a sexual nature: in such a case, the court must have at its disposal as much relevant information as possible in order to determine whether the conduct was of a nature to which the complainant did not consent.
92 Where the nature of the touching was not for a valid medical reason, a patient's decision to comply with a request will not amount to a valid consent (See 273.1(2) (c) of the Criminal Code). It must not be forgotten that a patient is in a position of vulnerability when he/ she is in the care of a medical professional. As recognized in Norberg v. Wynrib, a doctor is in a position of trust in relation to a patient. He/she assumes a measure of control over the patient's body, and accordingly he/she must exercise that control over the patient purely in the interests of the patient and with the patient's consent. [Citations omitted].
340 In an earlier decision from the Court of Appeal, R. v. Orpin, 2002 CarswellOnt 1327 (ONCA), the court was reviewing the convictions against a psychotherapist accused of sexual assault against five former patients. There were allegations of sexual assault both within the therapeutic relationship of doctor/patient, and allegations that occurred outside of the therapeutic relationship. At paragraph 13, Finlayson, J.A. distinguished the issue of consent as it applied to both of those contexts:
13 In the case at bar, the judge made a number of fatal errors in relation to the charge on consent. He failed to instruct the jury that its first task was to determine whether the criminal acts alleged in fact occurred. He then should have instructed them to distinguish between the alleged sexual acts that occurred within the therapeutic relationship and those which occurred outside of the therapeutic relationship. His instruction failed to specify that in order to convict with respect to the acts that occurred within the therapeutic relationship, the jury would have to determine that the complainants consented to the therapy and that it was not bona fide therapy because to the extent the jury found the complainants consented to treatment, that consent would only have extended to acts done for a bona fide therapeutic purpose. Finally, the trial judge failed to instruct the jury that in relation to those alleged acts, if any, which the jury found occurred outside of the therapeutic relationship, that they were to approach those acts as they would sexual assault in any other case: i.e. by determining whether the complainants gave valid consent.
ii. Touching in Circumstances of a Sexual in Nature
341 In R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, the accused was alleged to have sexually assaulted the complainants when they attended at his office for medical diagnosis and treatment. The patients had consented to being touched on their body, but the consent was based on the touching being for valid medical purposes.
342 Litchfield set out the starting point for the nature of the offence of sexual assault, as well as the specific issues related to a sexual assault in a doctor/patient relationship.
343 Iacobucci, J. wrote for the majority about the nature of the offence of sexual assault at paras. 12-13:
12 The sexual aspect of a sexual assault forms part of the actus reus; there is no requirement that a person accused of sexual assault have any mens rea with respect to the sexual nature of a sexual assault. This was the holding of this Court in R. v. Chase, which decided that sexual assault is a crime of general intent and that the Crown did not have to prove a specific intent with respect to the sexual nature of the assault. As McIntyre J. wrote for the Court at p. 302:
The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual ... It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.
13 The test to be applied in determining whether an accused's conduct had the requisite nature to constitute a sexual assault is therefore an objective one. As this Court indicated in Chase, all the circumstances surrounding the conduct in question will be relevant to the question of whether the touching was of a sexual nature and violated the complainant's sexual integrity. It is therefore important in individual cases that courts not create unnecessary barriers to considering all the circumstances surrounding conduct which is alleged to constitute a sexual assault. This is particularly true where the complainant has consented to some touching but not to touching of a sexual nature: in such a case, the court must have at its disposal as much relevant information as possible in order to determine whether the conduct was of a nature to which the complainant did not consent. [Citations omitted.]
344 In a recent Court of Appeal decision, R. v. Trachy, 2019 ONCA 622, Benotto, J.A. wrote the following about the offence of sexual assault principles which are relevant to this case:
73 The objective test requires the court to look to all the circumstances surrounding the conduct to determine on an objective basis whether it was of a sexual nature and violated the sexual integrity of the complainant: R. v. Litchfield. While the intent or motive of the accused may be a factor in considering whether the conduct was sexual in nature, the Supreme Court in Chase went on to state, at p. 302:
It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.
74 The mental element in sexual assault and indecent assault is the intention to touch. Proof of sexual purpose is not required because the "factors which could motivate sexual assault are said to be many and varied . . . To put upon the Crown the burden of proving a specific intent would go a long way toward defeating the obvious purpose of the enactment", which is to protect the sexual integrity of all persons: Chase, at pp. 302-303. As the Supreme Court stated in R. v. Ewanchuk, at para. 28:
Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy . . . It follows that any intentional but unwanted touching is criminal.
81 ... There was no analysis with respect to the sexual integrity of the complainants and whether that integrity was violated by the respondent's touching of their breasts. The trial judge did not address the position of trust between the child-students and their teacher. He did not address the sexual nature of the touching.
84 As Lutoslawski makes clear, the sexual nature of the touching is determined by an objective standard. The question is whether a reasonable observer would perceive a sexual or carnal context to the touching in light of all the circumstances. [Citations omitted].
345 In considering all of the circumstances to decide if the touching was of a sexual nature in a medical or clinical setting, the court must consider the difference between conduct that might suggest professional incompetence or conduct that does not meet professional standards and conduct that must meet a criminal standard to be a crime.
5. Consent
[180] The Supreme Court of Canada has set out the principles governing the law of consent in R. v. Ewanchuk (1999), 1999 CanLII 711 (SCC), 131 C.C.C. (3d) 481:
25 The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused's actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, and R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293.
26 The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred.
27 …While this may be true in the general use of the word, for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant's perspective. The approach is purely subjective.
28 The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society's determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual's right to physical integrity is a fundamental principle, "every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner": see Blackstone's Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.
29 While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.
30 The complainant's statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct is consistent with her claim of non-consent. The accused's perception of the complainant's state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.
31 … If the trier of fact accepts the complainant's testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law.
40 Section 265(3) identifies an additional set of circumstances in which the accused's conduct will be culpable. The trial judge only has to consult s. 265(3) in those cases where the complainant has actually chosen to participate in sexual activity, or her ambiguous conduct or submission has given rise to doubt as to the absence of consent. If, as in this case, the complainant's testimony establishes the absence of consent beyond a reasonable doubt, the actus reus analysis is complete, and the trial judge should have turned his attention to the accused's perception of the encounter and the question of whether the accused possessed the requisite mens rea.
(2)Mens Rea
41 Sexual assault is a crime of general intent. Therefore, the Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement. See R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63.
42 … the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. See Park, supra, at para. 39.
44 The defence of mistake is simply a denial of mens rea. It does not impose any burden of proof upon the accused (see R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, at p. 936) and it is not necessary for the accused to testify in order to raise the issue. Support for the defence may stem from any of the evidence before the court, including, the Crown's case-in-chief and the testimony of the complainant. However, as a practical matter, this defence will usually arise in the evidence called by the accused.
46 In order to cloak the accused's actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused's speculation as to what was going on in the complainant's mind provides no defence.
47 For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said "yes" through her words and/or actions. …
48 There is a difference in the concept of "consent" as it relates to the state of mind of the complainant vis-à-vis the actus reus of the offence and the state of mind of the accused in respect of the mens rea. For the purposes of the actus reus, "consent" means that the complainant in her mind wanted the sexual touching to take place.
49 In the context of mens rea - specifically for the purposes of the honest but mistaken belief in consent - "consent" means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. This distinction should always be borne in mind and the two parts of the analysis kept separate.
50 …
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) …
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
[181] The Supreme Court of Canada further articulated the governing principles of consent in R. v. Barton, 2019 SCC 33:
87 A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea. A person commits the actus reus of sexual assault "if he touches another person in a sexual way without her consent" (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consists of the "intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched" (R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 42).
88 "Consent" is defined in s. 273.1(1) of the Code as "the voluntary agreement of the complainant to engage in the sexual activity in question".6 It is the "conscious agreement of the complainant to engage in every sexual act in a particular encounter" (J.A., at para. 31), and it must be freely given (see Ewanchuk, at para. 36). This consent must exist at the time the sexual activity in question occurs (J.A., at para. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see Code, s. 273.1(2)(e); J.A., at paras. 40 and 43). Further, as s. 273.1(1) makes clear, "consent" is not considered in the abstract. Rather, it must be linked to the "sexual activity in question", which encompasses "the specific physical sex act", "the sexual nature of the activity", and "the identity of the partner", though it does not include "conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases" (R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57 (emphasis deleted)).
89 Consent is treated differently at each stage of the analysis. For purposes of the actus reus, "consent" means "that the complainant in her mind wanted the sexual touching to take place" (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on the complainant's state of mind, and the accused's perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent -- plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see J.A., at para. 37).
90 For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent, "consent" means "that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused" (Ewanchuk, at para. 49). Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed "the complainant effectively said 'yes' through her words and/or actions" (ibid., at para. 47).
92 Therefore, in my view, it is appropriate to refine the judicial lexicon and refer to the defence more accurately as an "honest but mistaken belief in communicated consent". This refinement is intended to focus all justice system participants on the crucial question of communication of consent and avoid inadvertently straying into the forbidden territory of assumed or implied consent.
93 Focusing on the accused's honest but mistaken belief in the communication of consent has practical consequences. Most significantly, in seeking to rely on the complainant's prior sexual activities in support of a defence of honest but mistaken belief in communicated consent, the accused must be able to explain how and why that evidence informed his honest but mistaken belief that she communicated consent to the sexual activity in question at the time it occurred (see S. C. Hill, D. M. Tanovich and L. P. Strezos, McWilliams' Canadian Criminal Evidence (5th ed. loose-leaf), at s.16:20.50.30). For example, in some cases, prior sexual activities may establish legitimate expectations about how consent is communicated between the parties, thereby shaping the accused's perception of communicated consent to the sexual activity in question at the time it occurred. American scholar Michelle Anderson puts it this way: "prior negotiations between the complainant and the defendant regarding the specific acts at issue or customs and practices about those acts should be admissible. These negotiations, customs, and practices between the parties reveal their legitimate expectations on the incident in question" (M. J. Anderson, "Time to Reform Rape Shield Laws: Kobe Bryant Case Highlights Holes in the Armour" (2004), 19:2 Crim. Just. 14, at p. 19, cited in Hill, Tanovich and Strezos, at s.16:20.50.30). These "negotiations" would not, however, include an agreement involving broad advance consent to any and all manner of sexual activity. As I will explain, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact.
94 However, great care must be taken not to slip into impermissible propensity reasoning (see Seaboyer, at p. 615). The accused cannot rest his defence on the false logic that the complainant's prior sexual activities, by reason of their sexual nature, made her more likely to have consented to the sexual activity in question, and on this basis he believed she consented. This is the first of the "twin myths", which is prohibited under s. 276(1)(a) of the Code.
96 But the law draws a distinction between mistakes of fact and mistakes of law. As a general rule, the latter offer no excuse (see Code, s. 19; R. v. Forster, 1992 CanLII 118 (SCC), [1992] 1 S.C.R. 339, at p. 346; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 58). As the Court of Appeal in this case put it, "[n]o one in this country is entitled to their own law" (para. 245). Therefore, to the extent an accused's defence of honest but mistaken belief in communicated consent rests on a mistake of law -- including "what counts as consent" from a legal perspective -- rather than a mistake of fact, the defence is of no avail (see Stewart, at s. 3:600.30.10).
99 "Broad advance consent" refers to the legally erroneous notion that the complainant agreed to future sexual activity of an undefined scope (see J.A., at paras. 44-48). As summarized in J.A., the definition of "consent" under s. 273.1(1) "suggests that the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind" and "this Court has also interpreted this provision as requiring the complainant to consent to the activity 'at the time it occur[s]'" (para. 34, citing Ewanchuk, at para. 26). Thus, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact.
(d)The Reasonable Steps Requirement
101 …
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) …
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
104 Section 273.2(b) imposes a precondition to the defence of honest but mistaken belief in communicated consent -- no reasonable steps, no defence. It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time (see R. v. Cornejo (2003), 2003 CanLII 26893 (ON CA), 68 O.R. (3d) 117 (C.A.), at para. 22, leave to appeal refused, [2004] S.C.C.A. No. 32, [2004] 3 S.C.R. vii, citing K. Roach, Criminal Law (2nd ed. 2000), at p. 157; see also Sheehy, at pp. 492-93). Notably, however, s. 273.2(b) does not require the accused to take "all" reasonable steps, unlike the analogous restriction on the defence of mistaken belief in legal age imposed under s. 150.1(4) of the Code7 (see R. v. Darrach (1998), 1998 CanLII 1648 (ON CA), 38 O.R. (3d) 1 (C.A.), at p. 24, aff'd 2000 SCC 46, [2000] 2 S.C.R. 443 (without comment on this point)).
106 Keeping in mind that "consent" is defined under s. 273.1(1) of the Code as "the voluntary agreement of the complainant to engage in the sexual activity in question", what can constitute reasonable steps to ascertain consent? In my view, the reasonable steps inquiry is highly fact-specific, and it would be unwise and likely unhelpful to attempt to draw up an exhaustive list of reasonable steps or obscure the words of the statute by supplementing or replacing them with different language.
108 It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated. For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent.The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes. At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case.
109 Overall, in approaching the reasonable steps analysis, trial judges and juries should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Moreover, trial judges and juries should be guided by the need to protect and preserve every person's bodily integrity, sexual autonomy, and human dignity. Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care -- mere lip service will not do.
6. The W. (D.) Principle
[182] If I believe the evidence of the accused, then I must find him not guilty.
[183] Even if I do not believe such evidence, if the evidence favourable to the accused leaves me with a reasonable doubt as to his guilt, I must find him not guilty.
[184] Even if I do not believe the evidence favourable to the defence and it does not leave me with a reasonable doubt, then if on consideration of all of the evidence, I am left with a reasonable doubt, I must find the accused not guilty.
[185] The court is not to simply choose either the evidence favourable to the prosecution, or the evidence favourable to the defence. Rejecting one does not mean the court must accept the other.
[186] The stark alternative of believing one side’s evidence over that of the other side excludes the possibility of being unable to resolve conflicting evidence, and thus being left in a state of reasonable doubt on whether the Crown has proven its case.
[187] The issue is not which of two versions is true, but rather, on the whole of the evidence, whether the Crown has proven the guilt of Mr. Findlay beyond a reasonable doubt.
[188] Justice Michael Code, in a paper entitled “Applying the W.D. Framework – What Has Changed”, in May 2011, states:
[17] … No evidence, whether favouring the Crown or the defence, should ever be assessed in isolation when determining credibility. Indeed, the first and third steps in W. (D.) are closely related because acceptance of a powerful Crown case that proves guilt beyond a reasonable doubt (at step 3) is a perfectly good rason for completely rejecting the accused’s exculpatory account (at step 1), and vice versa.
[18] Accordingly, it should be made clear in your reasons, and in instructions to the jury, that steps 1 and 2 in the W. (D.) formula are only to be undertaken in the context of considering all the other conflicting evidence. The bare formula, set out in Cory J. in W. (D.), does not make this point clear and many judges will therefore elaborate on it. As Feldman J.A. explained in R. v. Hoohing (2007), 2007 ONCA 577, 74 W.C.B. (2d) 676 at para. 15 (Ont. C.A.), in relation to a trial judge who had elaborated on steps 1 and 2 in the manner suggested herein:
He also properly told the jury that they were to weigh the evidence cumulatively and not in isolation. A jury does not consider an accused’s version of events in isolation as if the Crown had led no evidence. When the jury is applying the first two prongs of the three-pronged test in W. (D.), they are deciding whether they accept the accused’s version of events or whether it leaves them with a reasonable doubt. Clearly they can only do that by assessing the accused’s evidence and the other evidence that favours the accused in the context of all the evidence. See: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para 5 (C.A.). The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt. [Emphasis added.]
Also see: R. v. Campbell (2003), 2003 CanLII 48403 (ON CA), 57 W.C.B. (2d) 363 (Ont. C.A.).
[189] To this effect is the decision in R. v. Hull, 2006 CanLII 26572 (ON CA), 2006 CarswellOnt 4786:
5 W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
7. The Nyznik Principles
[190] In R. v. Nyznik, 2017 ONSC 4392, senior, respected Justice Anne Molloy has stated the principles that apply to cases alleging sexual assault as follows:
12 First of all, the very nature of the act underlying a sexual assault usually means that there are seldom any eye-witnesses apart from the complainant and the person or persons accused of the offence. Often, these cases come down to the word of one person against the other -- the classic "he said/she said" scenario. In that situation, it would be wrong for the trial judge to decide the case based on which is the more credible version of the two. To do so would be to misapply the burden of proof on the Crown to establish guilt beyond a reasonable doubt. The correct application of the burden of proof requires the judge to acquit if the evidence of the accused, when seen in the context of all of the evidence, raises a reasonable doubt as to his guilt. It is possible that the judge might not fully believe the defendant's version of the events, and might find the complainant's version to be more credible, but still be uncertain as to what actually happened. In that situation, there is a reasonable doubt, the benefit of which must go to the defendant, even where the complainant's story is more plausible or more believable than that of the defendant.
16 It is sometimes said that the application of these principles is unfair to complainants in sexual assault cases, that judges are improperly dubious of the testimony of complainants, and that the system is tilted in favour of the accused. In my opinion, those critics fail to understand the purpose of a sexual assault trial, which is to determine whether or not a criminal offence has been committed. It is essential that the rights of the complainant be respected in that process and that decisions not be based on outmoded or stereotypical ideas about how victims of assault will or will not behave. However, the focus of a criminal trial is not the vindication of the complainant. The focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt. In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eye-witnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions. While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequence of ensuring that innocent people are never convicted.
8. Credibility and Reliability
[191] Justice Molloy also pointed out, at para. 15.
15 … Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.
[192] In R. v. Slatter, 2019 ONCA 807, Trotter J.A. pointed out, at para. 60:
As this court has pointed out, credibility and reliability are not the same thing. "Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue". Thus "[c]redibility ... is not a proxy for reliability: a credible witness may give unreliable evidence." [Citations omitted]
[193] Justice Mossip in Lai put it as follows:
iii. Reliability and Credibility of a Witness
346 There is probably no criminal trial which requires the assessment of the credibility and reliability of witnesses' testimony more than in a sexual assault case. It is trite law to state that a sexual assault case is not decided by comparing the defence evidence with the Crown evidence. The outcome of this case does not depend on my decision as to what is more likely to have happened. This case, like all criminal trials, depends on whether, after considering all of the evidence at the trial, the Crown has proven the guilt of Mr. Lai beyond a reasonable doubt with respect to each complainant.
347 In order to reach my decision, I must assess the credibility and reliability of the witnesses who testified at this trial. What does that mean?
348 The distinction between "credibility" and "reliability" has been discussed in evidence texts and jurisprudence for decades. The following definition of those two determinations was set out clearly by Blair, J.A. in R. v. Sanichar, 2012 ONCA 117:
36 Here, a regular theme in the trial judge's acceptance of the complainant's testimony was that she was "sincere," she was "honest," she was "doing her best to be truthful." But he does not appear to have focused on whether her testimony was reliable or accurate. David M. Paciocco and Lee Stuesser describe the distinction between "credibility" and "reliability" in this context as follows in their text, The Law of Evidence, rev. 5th ed. (Toronto: Irwin Law, 2010), at p. 29:
"Credibility" is often used to describe the honesty of a witness. "Reliability" is frequently used to describe the other factors that can influence the accuracy of testimony, such as the ability of the witness to make the relevant observation, to recall what was observed, and to communicate those observations accurately.
349 The court in Sanichar, stressed that it was crucial for a trial judge to assess both these attributes of a witness' testimony. As trial judges tell juries, an otherwise credible witness may give unreliable testimony for one reason or another. Of course, the application of those definitions to the testimony I heard at trial is at the heart of assessing whether I can rely on that testimony.
350 Appeal courts have provided guidance on what can and cannot enhance a witness' credibility and/or reliability. I will set out a few examples here.
351 Importantly, trial judges must not ignore "troubling aspects" of a witness' evidence; they must address them and make a finding about that evidence (see R. v. R. (D.), 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291).
352 A trial judge must consider the following, among other questions when assessing a witnesses' testimony.
- Consistency of the witnesses' evidence:
• Internally;
• Between examination-in-chief and cross-examination;
• With other witnesses/documentary or physical evidence;
• Is there a prior inconsistent statement;
• Is there an explanation for any inconsistency?
Is the witnesses' evidence inherently plausible?
Did the witness answer the questions asked or was the witness evasive, unresponsive, or argumentative?
9. Assessing the Evidence of a Witness
[194] In R. v. M.G. [1994] 93 C.C.C. (3d) 747 (ONCA), the Court of Appeal held that the most valuable means of assessing the credibility of crucial witnesses is to examine the consistency of their evidence.
[195] Inconsistencies on minor matters or matters of detail are normal and are to be expected. Where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The court must then decide if it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.
[196] The totality of the inconsistencies is also an important consideration in order to assess whether a witness' evidence is reliable. What is important is the significance of the inconsistency.
[197] The court may accept all, part or none of the evidence of a witness. The trier of fact is entitled to accept part of the witness' evidence and reject other parts. Similarly, the trier of fact can afford different weight to different parts of the evidence that the trier has accepted (R. v. A.(F.), [2010] SCJ No. 44, at paragraph 65).
[198] In R. v. M. (A.), 2014 ONCA 769, 2014 CarswellOnt 15263, the Court stated,
[12] Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies [page540] may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.
10. Disclosure and Reaction to Sexual Assault
[199] The D.D. principle is also relevant. In R. v. D.D. 2000 SCC 43, [2000] 2 S.C.R. 275, at paragraph 65, the Supreme Court of Canada says:
65 A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
[200] The Court of Appeal, in R. v. Kiss, 2018 ONCA 184, goes on to explain, at paragraph 101, that:
The principle in D.D. is not confined to delays in reporting. It relates to any stereotypical assumption about how sexual assault victims are apt to behave, and it is stereotypical to assume that sexual assault victims tend to scream for help. Some will, others will not.
[201] Also relevant in this case is the concept of piecemeal disclosure as identified in R. v. D.P., 2017 ONCA 263:
30 The trial judge concluded that J.E.'s explanation for his delayed disclosure and for his failure to disclose all of the assaults in his first interview with the police was "perfectly plausible". The trial judge observed:
The decision to disclose is a difficult one that can be very painful for victims. It cannot be surprising that it would take [J.E.] more than one occasion to shed a burden that had been weighing on him for years.
31 We see no error in the trial judge's assessment of the impact of J.E.'s delayed and bifurcated disclosure on his credibility. Nor do we accept the argument that there is a fundamental difference between delayed disclosure and piecemeal disclosure of prior sexual abuse. The comments in R. v. D.D. are potentially applicable to both, depending of course on the circumstances revealed by the evidence in any particular case.
[202] I am guided by the words of Justice Lemon in S.L. where he commented:
103 The evidence of the complainant must not be approached with any unwarranted assumptions as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not be the complainant of a sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say. With respect to sexual offences, there is no typical victim or typical assailant or typical situation or typical reaction.
104 I must caution myself against reaching conclusions based on common misconceptions. Instead, I must approach the evidence with an open mind and without preconceived ideas. I must make my decision based solely on the evidence and in accordance with the law.
11. Same Level of Scrutiny
[203] The Ontario Court of Appeal in Kiss makes it clear that,
It is an error of law for a trial judge to use a higher degree of scrutiny in assessing the credibility or reliability of defence evidence than Crown evidence. Where that happens, a trial will be unfair to the accused.
12. Breach of a Regulatory Provision or Standard of Care is not a Crime
[204] In this regard, the decision in S.L., para. 131, confirms this to be the law.
131 However, the breach of regulatory provision does not amount to a criminal act. The Crown relies on R. v. Chen, 2003 BCSC 1363. The accused in that case, however, gave evidence which allowed the trial judge to find that the accused knew and understood the limits of permitted physical examinations according to the provincial regulations. There is no such evidence here.
[205] In Lai, Justice Mossip held,
345 In considering all of the circumstances to decide if the touching was of a sexual nature in a medical or clinical setting, the court must consider the difference between conduct that might suggest professional incompetence or conduct that does not meet professional standards and conduct that must meet a criminal standard to be a crime.
POSITION OF THE PARTIES
Crown
[206] The Crown submitted that there was no legitimate therapeutic rationale for the accused to treat the complainant’s pubic symphysis.
[207] The Crown submitted that this court should accept the testimony of the complainant that what was done to her was sexual in nature.
[208] The Crown submitted that the complainant was not evasive in her testimony and when confronted with inconsistencies she provided reasonable explanations. The Crown acknowledged that the inconsistencies in her testimony could give rise to concerns about the reliability of her evidence but that such concerns are alleviated by her explanations. Her explanations including her embarrassment, knowing the seriousness of her allegations she wanted to be sure, and her concern for Ms. Brick and her business are reasonable in the submissions of the Crown.
[209] The Crown points out the testimony of the complainant that her use of the word cupping meant he used his fingers in her mind.
[210] The Crown submits that I should reject the testimony of Mr. Findlay as not credible and not reliable. She points to the evidence that he recalled details about his treatment of the public symphysis, but had no recollection as to how he treated her sacrum. The Crown argues that his testimony acknowledging that they talked throughout the sessions mostly about treatment is completely inconsistent with his testimony that she was silent during the subject treatment. She submits the court should be concerned with his testimony that it did not occur to him until after he had treated her sacrum for the third time that there could be an underlying problem involving the pubic symphysis. The Crown also points out that his testimony about use of the blanket was inconsistent with his statement to the college.
[211] The Crown submits that Mr. Findlay’s description of obtaining informed consent does not amount to doing so in law. He could not testify as to what he had said to the complainant and what he had not yet said to her before she interrupted him.
[212] The Crown submits that if the court does not find that the touching was sexual in nature then Mr. Findlay should be found not guilty of sexual assault. In that case however, the court should go on to consider that Mr. Findlay did not obtain consent to touch the complainant in the pubic area, in which case, he should be found guilty of assault.
[213] The Crown points out that with respect to the defence reliance on the case of Lai, the complainants had consented to the therapeutic treatment, para. 337. The Crown submits that there is no such consent in the present case.
[214] The Crown submits that if this court finds that the touching was of a sexual nature, then it does not matter at all whether the complainant said words to the effect that you’re the professional I trust you, because she did not consent even on the evidence of Mr. Findlay to be touched in the vaginal area in a sexual fashion. S.L., para. 108 and Lai, para. 339 and 340. Sexual touching is not a legitimate therapeutic purpose.
[215] On the question of consent or not to therapeutic purpose as asserted by Mr. Findlay, the Crown asked the court to consider the following factors, Mr. Dubois’ evidence that he would not seek consent for a new treatment of a new area of the body until the next session, that the words “you’re the professional I trust you”, do not amount to consent, that Mr. Findlay did not seek consent to treat the pubic symphysis at the outset of this session despite treating her sacrum on the two prior occasions, that the consent obtained at the outset of the sessions does not amount to a general consent for any treatment to any part of the body, and finally that the court should accept the complainant’s evidence that at no time did she consent to be touched in her pubic bone area.
[216] The Crown submits that it does not need to prove specific intent to commit a sexual act. The Crown asks the court to find that this touching was sexual in nature considering the area touched, the circular motion, the complainant’s evidence that Mr. Findlay told her he sleeps naked, that he complimented her and touched her sweater and his talk about anal adjustments. The Crown submits that the court should consider that the complainant never raised an issue concerning her pelvic area, Ms. Brick never treated that area and testified that there was never any need to, as evidence that there was no valid medical reason for Mr. Findlay to work in that area of her body.
Defence
[217] The defence relies on the principles set out in S.L. and Lai as supporting his position that Mr. Findlay should be acquitted.
[218] The case is one of an allegation of sexual assault in a medical therapeutic context.
[219] Proof of failure to comply with professional standards of care does not constitute criminal conduct.
[220] The defence points to the inconsistencies in the complainant’s testimony as a basis to find that she is not credible and not reliable as a witness. These inconsistencies include the evolving description of where and how he touched her including her testimony for the first time at trial that he used his fingers. The defence submits that each time she told or wrote what happened her account was of more aggravating conduct on the part of Mr. Findlay. The court should be concerned about the inconsistencies between her Facebook messages the next day compared to her testimony at trial some 4 ½ years later.
[221] The defence describes the complainant’s explanations as egregious and preposterous. Her inconsistencies go to the core elements of the allegations of sexual assault.
[222] The defence points out her initial statements that when he touched her, she winced compared to her statement to the police some months later that she literally jumped off the bed.
[223] The defence also points out that in her testimony she tied the touching to his comment about anal adjustments whereas in her Facebook messages she wrote twice that that had occurred in the prior session.
[224] The defence submits that the court should be very suspicious of her statement that it was after she met with Ms. Brick on February 9 that she was confident that she had been sexually assaulted and that that is why she began to describe him as touching her vagina and clitoris.
[225] The defence submits that given the inconsistencies in the testimony of Mr. Dubois, the court should be left with a reasonable doubt the treatment of pubic symphysis dysfunction is within the scope of practice for an RMT, and that therefore the court should accept the testimony of Mr. Findlay that he was acting in a therapeutic treatment manner.
[226] The defence submits that Mr. Findlay’s testimony that the complainant interrupted him with words to the effect that “you’re the professional I trust you” should be accepted as it is consistent with what she wrote in her Facebook message and amounts to consent.
[227] In view of her Facebook message, the court should be very concerned about her statement to the college and to the police about her disgust, upset and sick to the stomach reaction to his description that that is what she said to him.
[228] The defence submits the court should accept the testimony of Mr. Findlay as to why he could recall details of the pubic symphysis treatment, but not of the treatment of the sacrum.
[229] With respect to Mr. Findlay’s evidence that it did not occur to him that the pubic bone was near vagina, the defence asks the court to consider that he showed Ms. Brick what he did, it came as a surprise to him when she said his hand was near her vagina which is consistent with his testimony that he did not think about proximity to the vagina but rather about treating for pubic symphysis dysfunction.
[230] The defence points out that Mr. Findlay told Ms. Brick about the course he had taken and he testified about it and was not contradicted in any way on that.
[231] The defence submits that Mr. Findlay, on his evidence, obtained the consent of the complainant to touch her as he described. It was for a therapeutic purpose. Verbal consent was an acceptable practice at the time.
[232] The Crown submits that if I am left with a reasonable doubt as to whether what Mr. Findlay did was for therapeutic purpose and whether he obtained consent to do what he did for that purpose then he is entitled to a complete acquittal.
The Witnesses
[233] I strongly endorse Justice Lemon’s favourable comments concerning the positive aspects of a Zoom hearing. A Zoom hearing allows a judge to look directly at the witness who is testifying and provides for greater observation of the witness. In most court rooms, the judge’s view of the witness is of one side of the face or from slightly behind the witness. S.L., para. 109, 110.
[234] Both the complainant and Mr. Findlay testified in a responsive manner. They were not evasive or defensive or argumentative during the testimony. There was nothing in their manner of testifying that caused me any concern.
[235] The testimony of the complainant was inconsistent with respect to her detail as to where she was touched and what part of the hand Mr. Findlay used, during which session the subject of anal adjustments was raised by Mr. Findlay, whether she winced or literally jumped off the bed because of what he did, and her reaction to Mr. Findlay’s claim that she had interrupted him to say that he was the professional in view of what she wrote in the Facebook message of February 3, “and like he asked if he could work on everything, which I of course said you’re the professional because how would I know what will help me”. In this regard, I must consider her explanations and the principles set out in D.D., Kiss and D.P..
[236] Mr. Findlay’s testimony also gave rise to concerns including the detail with which he described treatment of the pubic symphysis, a procedure he used only 5-10 times in all, compared to having no recall as to how he had rotated her sacrum which he did with the complainant on three occasions, that it did not occur to him until the third session after he had rotated the sacrum for a third time that there could be an underlying problem, that it did not occur to him that what he did was place his hand in close proximity to the complainant’s vagina, and his use of a blanket or not. His statement to Ms. Brick that he had done the public symphysis treatment “lots of times” is at odds with his testimony that he had done it 5 to 10 times.
[237] The complainant and Mr. Findlay agree on some matters including that the subject treatment involved him touching her three times, that his hand was positioned with his fingers pointing upwards, that there was no consent to touch her in the vaginal area and that on February 2, she had said that she had SI pain.
[238] Apart from the substantial of difference in their testimonies as to where he touched her and whether he used his fingers to do so or not, they disagree on matters including did he use 1 hand or 2, as to whether a blanket was involved, whether she put both legs up with both feet flat on the table, and did she do this once or twice, whether there was consent at the outset of the treatment in her pelvic area, whether she asked questions or remained silent during the subject treatment, whether he started to explain to her in some detail about what he was going to do or whether he simply stated that he had noticed something while she was on her stomach, whether he moved the palm of his hand in an upward and circular direction or pushed down to the table and up to her head but not in a circular motion and whether the subject treatment occurred 3/4 through the session or 90 sec to 2 minutes.
[239] Mr. Dubois was inconsistent in respect of his testimony as to whether treatment of a pubic symphysis dysfunction was within the scope of practice for an RMT. I am left with a reasonable doubt and therefore I cannot find that such treatment is outside the scope of practice of an RMT.
[240] Mr. Findlay’s testimony was consistent with that of Mr. Dubois in regard to the requirement for and the elements of consent.
[241] Mr. Dubois’ evidence that he would not have sought consent to treat a new area of the body until the next session does not assist this court on the consent or not issue.
[242] Mr. Dubois’s evidence as to how he would have assessed for pubic symphysis dysfunction palpating with his fingers in a downward motion does not assist the court in this case in determining whether a crime has been committed.
[243] These latter two matters may bear on an inquiry by the College in regard to compliance with professional standards of practice.
ANALYSIS
[244] As indicated in Orpin, I first consider whether the criminal act alleged in fact occurred.
Did Mr. Findlay touch the Complainant’s Vaginal Area?
[245] The issue is not which of the 2 versions I accept as true, but rather whether on the whole of the evidence, the Crown has proven the guilt of Mr. Findlay beyond a reasonable doubt.
[246] In considering the first step in W. (D.), I consider the testimony of Mr. Findlay in the context of all of the evidence.
[247] In doing so, I have significant concerns as to his credibility and reliability.
[248] His testimony that the complainant put both legs up on the table twice has to be contrasted with the complainant’s evidence that due to paralysis following her surgery, she suffered from foot drop in her right leg and therefore, she could not do that. Her evidence in that regard was unchallenged apart from his evidence that she put both legs up in such fashion. The evidence that she required the use of a walker and cane is undisputed. I accept her evidence in regard to her inability to raise her right leg.
[249] Mr. Findlay’s change in his evidence as to whether he treated her over the blanket or not is also of significant concern. His explanation that he misunderstood the Crown’s question does not ring true. This testimony tends to show that he is prepared to tailor his evidence to be consistent with his prior statement to the College and to put himself in the best light.
[250] His evidence that she was a competent adult experienced with massage therapy and consent and that he assumed she’d know were her pubic bone was must be considered as inconsistent with his testimony that it did not occur to him that his hands were near her vagina and although he knew there were special considerations for obtaining consent to touch a client in a sensitive area such considerations did not occur to him. Ms. Brick said that his hands were near her genitalia when he demonstrated what he had done. I cannot accept his evidence in this regard as truthful.
[251] I have a significant concern about Mr. Findlay’s credibility and reliability when I consider that Mr. Findlay told Ms. Brick that he had performed the pubic symphysis treatment “lots of times”, when compared to his testimony that he performed it 5 to 10 times “on both males and females”.
[252] His explanation as to why he could recall in detail the procedure he used to align the complainant’s pubic symphysis, which he did just once, and which he says gave rise to no concern on his or her part, yet he could not recall how he performed the sacral rotation on her, which he did on three separate occasions, significantly and negatively impacts my assessment of his credibility and reliability.
[253] In addition, Mr. Findlay’s testimony that it did not occur to him that there was an underlying problem until 50 to 55 minutes into the third session, and that therefore he spent 90 seconds to 2 minutes explaining the need to treat a new part of her body, a sensitive part of her body, beginning to explain so as to obtain her consent to do so and then proceeding to do so impacts negatively against my assessment as to his credibility and reliability. That is an incredibly short period of time to accomplish what he said he did.
[254] In the face of testimony, which I accept, that the complainant and Ms. Brick would converse throughout the treatments and that the complainant would ask questions so that she could report back to her surgeon, and Mr. Findlay’s testimony confirming that they talked about the treatments during each session, I cannot believe his testimony that she was silent, and asked no questions, when he touched her, for the first time, in her pubic symphysis area.
[255] These matters of concern are not about minor, peripheral matters, but are at the core of the allegations.
[256] Although one or two of these issues alone may not have affected my assessment of his evidence, cumulatively considered, I find that I cannot believe the evidence of Mr. Findlay.
[257] I next consider whether Mr. Findlay’s evidence as to what he says he did leaves me with a reasonable doubt as to whether he performed a legitimate therapeutic procedure or a non-therapeutic touching that was sexual in nature, step 2 in the W. (D.) analysis.
[258] I do consider Mr. Dubois’ evidence which leaves me with a reasonable doubt that the scope of practice of an RMT could involve a joint mobilization in the area of the pubic symphysis and I am left with a reasonable doubt that that procedure is a legitimate therapeutic treatment. The fact that Mr. Findlay did not describe what he did as being what Mr. Dubois said he would do, in my view, does not affect my decision as to whether Mr. Findlay committed a crime. I have to have a reasonable doubt as to whether different practitioners would perform a procedure differently.
[259] In this step 2 analysis, I must also consider the testimony of the complainant.
[260] As I have cited above, I make no stereotypical assumptions about how someone should or should not act or react when sexually assaulted.
[261] In R. v. Gordon, 2018 ONSC 2702, Justice Petersen of this court repeated that stereo-typical thinking and myth-based reasoning is no part of the law of Canada. At paragraph 81, he said,
I must be hyper-vigilant against the incursion of unfounded assumptions or prevalent stereotypes about sexual assault, and about women who experience sexual assault. … Such assumptions and stereotypes, commonly referred to as “rape myths”, have tainted sexual assault jurisprudence for years. Appellate courts have repeatedly admonished trial judges for this faulty reasoning. The Supreme Court of Canada has ruled that drawing adverse inferences regarding a complainant’s credibility, based upon now-rejected stereotypical assumptions about how people react to react to acts of sexual abuse, constitutes a reversible error of law…
[262] Citing R. v. D. (D.) Continuing at paragraph 82, Justice Petersen says,
This does not mean that the testimony of sexual assault complainants can be subjected to lesser scrutiny than that of any other witness. Although I must avoid making adverse inferences about A.B.’s credibility, based on discredited rape myths, I must also avoid unprincipled foregiveness of any deficits in her testimony. I must apply even-handed scrutiny to the testimony of all Crown and defence witnesses.
[263] I acknowledge the submission by defence counsel that her statements as to what Mr. Findlay did to her and with what part of his hand evolved to a description of more aggravating circumstances from her first Facebook message to her testimony at trial. However, I must consider her explanations. I must consider the principles set out in D.D., Kiss and D.P.. I do not accept defence counsel’s characterizations of her explanations as “egregious” and “preposterous”.
[264] I consider the complainant’s evidence that as soon he left the room and she started to cry, she knew that something wrong had occurred, that she had been assaulted, but that it was not until she met with Ms. Brick on February 9 that she was certain. There is no clear evidence as to what was done, said or demonstrated at that meeting.
[265] This gives rise to the concern that she was influenced which is a concern Justice Lemon had in S.L., para. 17.
[266] I also consider the complainant’s evidence that it was during the third treatment while he was touching her on the vagina that he mentioned that anal adjustments are done and are worse. In her Facebook messages, she wrote, twice, that this had occurred during the second session. This affects my assessment of her reliability.
[267] I also consider the complainant’s Facebook message that she winced and her testimony to that affect compared to the statement that she made to the police in which she stated that she “literally jumped so far off the bed”. This also affects my assessment of her reliability.
[268] The complainant tied these 2 points to the core elements of her allegations.
[269] Finally, I consider the statement made by the complainant to the College, and to the police, that Mr. Findlay’s statement that she stopped him and said to him, “you’re the professional. I trust you”, made her sick to her stomach, upset her, disgusted her and utterly broke her as a woman, compared to her Facebook message, the next morning, “and like he asked if he could work on everything, which I of course said you’re the professional because how would I know what will help me”. This also affects my assessment of the complainant’s reliability as a witness.
[270] While standing alone, one or two of these concerns may not have significantly impacted my assessment of the reliability of the complainant’s evidence. However cumulatively considered, I find that I cannot accept her description of what occurred to be reliable and I am left with a reasonable doubt about it.
[271] As to what occurred, physically, I am left with a reasonable doubt as to whether Mr. Findlay touched the complainant’s vagina and clitoris with the heel of his hand and his fingers.
[272] I am left with a reasonable doubt as to whether he touched her vagina and/or clitoris with the heel of his hand only.
[273] I am left with a reasonable doubt as to whether the touching by Mr. Findlay was sexual in nature.
[274] Having said that, I am highly suspicious about what Mr. Findlay did, but that is not proof beyond a reasonable doubt. The words of Justice Molloy in para. 12, quoted above, are particularly relevant, “It is possible that the judge might not fully believe the defendant’s version of events, and might find the complainant’s version to be more credible, but still be uncertain as to what actually happened. In that situation, there is a reasonable doubt, the benefit of which must go to the defendant, even where the complainant’s story is more plausible or more believable than that of the defendant.”
[275] I do find that the Crown has proven beyond a reasonable doubt on the evidence of both Mr. Findlay and the complainant that he touched her in the area of the pubic bone.
[276] I cannot be sure that his touching, as he described it, was not for a legitimate therapeutic purpose. I am left with a reasonable doubt in that regard.
[277] I find that on totality of the evidence, I am unable to determine where the truth lies. I am left in the same position as Justice Molloy was in Nyznik. “I cannot be sure about what happened in that room. It is simply not safe to convict” of sexual assault.
[278] For these reasons, Mr. Findlay must be found not guilty of the charge of sexual assault.
[279] To be clear on this point, the question was what did Mr. Findlay do? It is readily proven beyond reasonable doubt on the evidence that the complainant in the present case did not consent to him touching her on her vagina or clitoris.
Was there Consent to Mr. Findlay Touching the Complainant in the Pubic Area?
[280] The decision in Orpin, directs that I next consider “that in order to convict with respect to the acts that occurred within the therapeutic relationship, the jury would have to determine that the complainants consented to the therapy and that it was not bona fide therapy because to the extent the jury found the complainants consented to treatment, that consent would only have extended to acts done for a bona fide therapeutic purpose”. (Para. 340).
[281] In Lai, Justice Mossip noted that the Crown conceded that the complainants had consented to the accused touching them for appropriate clinical touching or diagnosis. (Para. 337).
[282] That is not the situation in the present case. The Crown argues that Mr. Findlay did not obtain consent and the complainant did not consent to touch the complainant for a therapeutic purpose in her pubic bone area.
[283] The Crown argues that without such consent, Mr. Findlay is guilty of assault.
[284] Assault is defined as the intentional application of force to another person, directly or indirectly, without the consent of that person. (Section 265(1)(a) Criminal Code). Mr. Findlay intentionally applied force to the complainant in the area of her pubic bone on his evidence.
[285] The issue on the offence of assault in this case is whether the Crown has proven beyond reasonable doubt that the complainant did not consent to being touched in her pubic bone area.
[286] The question of consent in this case is a question of law. (Section 273.1(1.2)).
[287] Section 265(4) provides that where an accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. With respect to a charge of sexual assault, it is not a defence that the accused believed that the complainant consented to the activity where the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting, s. 273.2. That provision, the need to take reasonable steps, does not appear to apply to a charge of common assault.
[288] Counsel did not make submissions on this issue of honest belief. When I asked counsel after they had concluded their submissions whether this issue should be considered by the court, Crown counsel responded that this was a case of no consent, according to the complainant, or consent, according to the accused. Defence counsel submitted that the issue could be considered insofar as the accused had said “he took it” that the complainant was consenting when she interrupted him to say that he was the professional and that she trusted him.
[289] In S.L., Justice Lemon identified the facts that led him to conclude that the complainant had consented to therapeutic touching. These facts included that she agreed to attend the examination room, declined a chaperone and followed the directions of the accused. Even when she experienced pain, she followed the accused’s directions to continue the examination. She voiced her agreement with “I’ll try”. When she pulled his hand away a second time, the accused stopped the examination. (Paras. 14 to 20, 118, 119, 126). In that case, the accused told the complainant that her problem may have been caused by a tilted uterus. He offered to examine her, and she agreed to the examination. Before she undressed, he did not tell her how he was going to do the examination. In declining a chaperone, she stated that she trusted him that it was the right thing to do. After he had told her to undress from the waist down, and although he did not tell her what he was going to do, she believed that he was going to carry out an examination of her vagina. This is what he did. The court was left with a reasonable doubt that the procedure followed by the accused was for a therapeutic purpose and that the complainant had not consented to therapeutic treatment.
[290] There is no similar evidence in the present case, as there was as set out in S.L. in italics above.
[291] It is undisputed that there was no advance general consent to what Mr. Findlay did after he asked the complainant to roll over and to lie on her back.
[292] The evidence that I consider on the question of whether she consented to therapeutic treatment is as follows.
[293] I must find, as it cannot be disputed on the evidence as a whole, that at some point after she was lying on her back he explained that the hip bone and groin and pubic bone are all connected, and she said words to the effect that, “You’re the professional. I trust you”.
[294] On the evidence, I must accept the testimony of the complainant that he did not say that he was going to touch her pubic bone area, that he did not use the words pubic symphysis, and that he did not explain what he was going to do or why. This is consistent with the evidence of the accused who testified that he could not say where in his explanation seeking her consent it was that she interrupted him.
[295] I acknowledge that she testified that she did put one leg up with her foot flat on the table as he instructed her to do.
[296] I find as a fact that she did not consent to him touching her in the area of her vagina or her clitoris.
[297] I find on the evidence of Mr. Findlay which is consistent with the evidence of the complainant, that after he instructed the complainant to lie on her back on the treatment table he did not tell her that he was going to apply force to the area of her pubic bone or how or why. Without such information, she could not consent. Therefore, in law, he did not obtain her consent to do what he did.
[298] Furthermore, on the totality of the evidence, I find that the complainant did not consent to be touched in the pubic bone area. The actus reus of assault is proven beyond a reasonable doubt. The mens rea of assault is proven beyond a reasonable doubt in so far as Mr. Findlay was reckless of or wilfully blind to the complainant’s lack of consent. (Ewancuk, para. 42), even in his own evidence.
[299] I find that he did not have reasonable grounds to believe that she was consenting to him touching her in the area of her pubic bone. This was an area of her body that had never been treated before, that she had not complained about in the past, and that is acknowledged to be a sensitive part of one’s body. Mr. Findlay could only be able to speculate about what the complainant was consenting to. Speculation or testing the waters is not consent. He knew the extent of the information that he was required to provide to a client to obtain consent. On his evidence, he did not provide that information to the complainant. Accepting his evidence which is consistent with the complainant’s, I find that he had no reasonable grounds to believe that she was consenting.
[300] The principle articulated in Barton in the context of sexual assault is relevant to the facts of this case in my view, “the more invasive the sexual activity in question…Common sense suggests a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings and mistakes”. Para. 108. Mr. Findlay engaged in touching the complainant in an acknowledged personal and private part of her body.
[301] Unlike the situation in S.L., I cannot find that the complainant knew or expected to be touched in that part of her body in the way described by Mr. Findlay, pushing down to the table and up to her head.
[302] Mr. Findlay bears no burden of proof.
[303] I find that the Crown has proven beyond a reasonable doubt that the complainant did not consent to being touched in the area of her pubic bone, even for the purposes of therapeutic treatment, and therefore, Mr. Findlay is guilty of assault.
DECISION
[304] For these reasons, I find that Mr. Findlay is not guilty of sexual assault, but is guilty of assault.
Honourable Mr. Justice Gary W. Tranmer
Released: September 17, 2021
COURT FILE NO.: CR-18-66
DATE: 2021 Sep 17
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
COEL FRANCIS FINDLAY
REASONS FOR DECISION
Tranmer J.
Released: September 17, 2021