COURT FILE NO.: 19-RA18018

DATE: 2022/09/26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

JOHN ACKERMAN

Caroline Thibault, for the Crown

Natasha Calvinho, for the Accused

HEARD: August 25, 26, 29 – 31, September 1 and 2, 2022

Restriction on Publication

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding under section 486.4 of the Criminal Code of Canada directing that the identity of the complainants or witnesses and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way. This decision does not refer to the complainants or witnesses by names and may be published.

REASONS FOR decision

Roger J.

[1] The accused, Mr. John Ackerman, a registered massage therapist, is charged with sexual assault on four female complainants. Mr. Ackerman massaged each of the four complainants, on November 20, 2015, December 10, 2015, January 6, 2016, and March 7, 2018. The allegations are that he inappropriately touched each of the complainants during their massage.

[2] Each complainant testified that she did not consent to the alleged areas being massaged. Each complainant testified that she does not know the other complainants and did not talk about this matter to any of the other complainants.

[3] The accused does not dispute that he massaged each of the complainants on the dates indicated above. He testified and denied the allegations of inappropriate touching. Mr. Ackerman said that he has no recollection of treating any of the complainants and said that, as per his usual practice, he would not have massaged the alleged areas without the complainant’s consent. He also argues that the complainants’ evidence was inconsistent and that the circumstances were not of a sexual nature.

[4] A conviction for sexual assault requires that the Crown prove beyond a reasonable doubt that the accused touched the complainant without her consent in circumstances of a sexual nature (the actus reus of the offence) and, because sexual assault is a crime of general intention, that the accused intended to touch the complainant and knew or was reckless of or willfully blind to the complainant’s lack of consent (the mens rea of the offence).

[5] The alleged extent of the touching, the lack of consent, and the sexual nature of the circumstances are disputed for each complainant. The accused argues that although the complainants might have felt that he acted unprofessionally, each complainant considered that she might have been sexually assaulted only after reading a press release or information about another more serious complaint involving the accused.

Background

[6] Each complainant attended for a massage treatment with Mr. Ackerman because she was experiencing pain. Each complainant had prior experience with massages. For three of the complainants, this was their first massage with Mr. Ackerman. All complainants felt uncomfortable during their massage with Mr. Ackerman, and none returned for another massage with him after the events complained of. All testified that what happened with Mr. Ackerman had never happened before with another massage therapist.

Ms. M

[7] Ms. M was massaged by the accused on November 20, 2015. She testified that the accused massaged her buttocks, breasts, inner thighs, and abdomen without her consent, and that he did not drape her correctly, such that her body was occasionally exposed.

[8] Ms. M had attended shortly before for a couple’s massage. On that first occasion, she had filled out the standard paperwork, and, although she did not remember the specifics of their conversation, had discussed with the accused the areas to cover and to avoid. She testified that the first massage was very professional. She has no complaint about this massage and said that her impression of the accused at that time had been that he was an experienced massage therapist. She scheduled another massage with the accused for November 20, 2015.

[9] On November 20, 2015, the accused greeted her, and they had a five-minute conversation about what she expected. He asked for spots that she wanted him to focus on, and they talked again about the ongoing pain at her knee. She did not remember telling him what parts she wanted massaged but understood that he would perform a deep tissue massage to her tense areas. She told him to avoid her face, her feet, and her hands, and told him that she was tense at her upper and lower back, and that her upper chest was tight. She said that they did not talk about other areas that she did not wish to be massaged.

[10] She kept her underpants on and said that the massage started normally. It started with her lying on her stomach.

[11] Ms. M testified that the sheet that was covering her eventually fell off, and that this occurred occasionally, both while she lay on her stomach and on her back. She said that Mr. Ackerman would eventually pick it up and give it back to her, but that he did not assist her in repositioning the sheet.

[12] During her cross-examination, Ms. M was challenged about the sheet falling; it was suggested to her that the sheet stayed on the entire time. Ms. M took some time to answer and said at first that it might have fallen off, that it ended up on the ground at some point, and that he did not place it back. Shortly after, during her cross-examination, she said that the sheet fell off her twice, once on each side, and she denied the suggestion that it had fallen accidentally, or only when she was lying on her stomach.

[13] She said that Mr. Ackerman massaged her breasts, thighs, and her buttocks without her consent. She said that he only asked if she ever had this done before.

[14] In chief, Ms. M said that he did not ask if he could massage her buttocks. She said that he massaged her entire buttocks, and that the sheet was off when this occurred. She said that it was a little awkward, that she was not comfortable when this was occurring. During her cross-examination she agreed that the sheet was still on her buttocks while Mr. Ackerman massaged her inner thighs, although it was off when shortly after he massaged her buttocks. She also said that she was not comfortable when he massaged her inner thighs and came close to her vagina.

[15] However, during her cross-examination, Ms. M admitted that Mr. Ackerman asked her during the massage if he could work on her glute muscles. She said that he worked on both her right and left glute, including the side of her hips. She said that this relieved some tension, and that she thought that the accused really knew what he was doing. During her cross-examination, she said that she was “very at ease” when the accused massaged her glutes, that he never grabbed her buttocks, but massaged it, going back and forth between each side. After massaging her glutes, he worked on her back some more and then asked her to turn over.

[16] In chief, Ms. M said that she was not comfortable with what was occurring and asked if she could turn over. She said that he gave her back the sheet, that she fixed it around herself, and turned over.

[17] She had mentioned that her chest was tight and bothering her from something that happened at the gym, and she had no issue with the accused massaging her shoulders, neckline, and upper chest. However, she said that Mr. Ackerman massaged her breasts without her consent.

[18] She said that he massaged her entire breasts, with the exception of her nipples and areolas which he never touched. She said that the sheet was on her at that time, but that it occasionally fell off and that it fell and stayed off while he massaged her stomach. She did not understand why he massaged her breasts and stomach but said nothing at the time. She said that she was shocked and uncomfortable while this was occurring.

[19] During her cross-examination, Ms. M agreed that her chest was tight, and that Mr. Ackerman massaged her pectoral muscle on the side of her breasts. She agreed that she considered normal his touching the side of her breasts while doing this, but she could not understand why he massaged the inside fatty tissues of her breasts. She also could not understand why her breasts were exposed as he massaged her stomach. During her cross-examination, she maintained that Mr. Ackerman touched the fatty tissue of her breasts, however, she agreed that she never mentioned this in her October 10, 2018, police statement (although she did say in that statement that he massaged her whole breasts minus the nipple and areolas).

[20] While she was lying on her back, towards the end of the massage, she was also uncomfortable when Mr. Ackerman massaged her inner thigh, close to her underwear and her vagina, without asking if he could massage those areas. She said that the accused never touched her vagina but said that he was “too close for comfort”. She said that she felt “a little shocked and frozen” and that the sheet was not on her while this was occurring.

[21] Ms. M was also surprised that soon after the massage, the accused tried to call her and left her three voicemails, one on November 25 and two on November 26, 2015. In these messages the accused identified himself, asked how her knee was doing, whether he could give her advice or direction, and asked for a call back.

[22] Ms. M did not report this to the police until November 2018, shortly after she saw an article about the accused being charged with sexual assault. During her cross-examination she agreed that immediately after the massage her impression had been that the massage was “a little inappropriate”. She denied that her impression only changed after she read the article and said that after some time, she realized that the massage had been “a lot inappropriate”, as she had said slightly later at the preliminary inquiry. However, she agreed that the article is what convinced her that it was important for her to come forward.

Ms. LC

[23] On December 10, 2015, Ms. LC experienced stress-related pain in her upper and middle back. Her regular massage therapist was not available, and she contacted another clinic. They had availability. She had never attended that clinic for a massage, and she was disappointed when she realized that Mr. Ackerman would be her massage therapist because, although she did not know him, she recognized him as someone that her regular massage therapist had fired for what she understood were financial business reasons. She agreed that this made her slightly uncomfortable, but not enough to cancel because she said that she really needed a massage as she was tense in her upper and middle back.

[24] She filled out the standard paperwork and indicated that she was having issues with her upper and middle back. She kept her underpants on and laid face down on the massage table. Mr. Ackerman massaged her back but, at some point, his hands went to each of her sides, massaging from her back down to her side, with each of his hands going in between her ribs and her flattened breasts as he did this.

[25] Ms. LC testified that she felt very uncomfortable as Mr. Ackerman did this and that she eventually asked him “how is this helpful?”. He continued and told her something about releasing blood that could flow back to her muscles. She was uncomfortable, felt vulnerable, and wanted the massage to stop but said nothing else. Soon after, he refocused on her back, but she could not relax and said that she just wanted the massage to end and to leave.

[26] Although she could not recall the specifics of her conversations with Mr. Ackerman, she testified that the touching of her breasts had not been discussed, and that she had not consented to this part of her massage.

[27] In 2018, Ms. LC was showed an article about Mr. Ackerman being charged with sexual assault, and she decided to come forward. She had felt that the massage was awkward and uncomfortable until she saw the article. She said that the article eliminated her “self-doubts”, that she realized that she was also a sex assault victim, and that she also wanted to come out to support other victimized women.

Ms. LK

[28] Ms. LK, like the two previous complainants, frequently attended massage treatments. The clinic where the accused worked was referred to her by a friend, and she booked an appointment for January 6, 2016. She felt stress-related pain in her upper and lower back.

[29] Upon arriving for her appointment, she was greeted by the accused. She felt awkward when the accused put his hand on her shoulder and complimented her for having a great posture. She also felt that the massage room was isolated and did not appreciate being alone with the accused on the third floor of the building. She filled out the standard forms and told Mr. Ackerman that she was there for stress relief and that she wanted her shoulders, neck, lower back, and legs massaged.

[30] Ms. LK lay face down and the massage started normally until Mr. Ackerman asked her to move on her side. She testified that he did not say why. She thought that it was part of his style, but it made her uncomfortable, and although she did not say anything, she thought that it was “weird”, and she felt vulnerable.

[31] Moving onto her side made the sheet that was covering her breast fall, which also made Ms. LK uncomfortable. She said that the sheet fell twice while she lay on her side, exposing her breast, and that Mr. Ackerman made no efforts to hold or better tuck the sheet. As she lay on her side, with her arm stretched out, Mr. Ackerman massaged her armpit. As he massaged her armpit, she testified at trial that his hand touched the side of her breast, and she felt uncomfortable. She asked him why he was massaging her armpit. He gave an explanation relating to her lymph nodes, which she said made no sense to her. She was uncomfortable and told him, “Okay, we are finished with this area”. She returned to lay face down, and he continued her massage.

[32] She testified that she had never been massaged while lying on her side before, and that the side of her breast had previously never been touched during a massage. She said that Mr. Ackerman did not tell her why he wanted her to lay on her side, and that she felt vulnerable in that position.

[33] She was unhappy with the massage and told a friend who knew the owners of the clinic. On March 9, 2016, she sent her friend an email describing what had occurred.

[34] Years later, she saw a January 31, 2019, article about Mr. Ackerman facing new charges of sexual assault and she decided to contact the police.

[35] During her cross-examination, Ms. LK was reluctant to agree that her memory would have been better in March 2016. In her email to her friend of March 9, 2016, she did not say that Mr. Ackerman touched her breasts. In that email, she said that he came “very close” to her breast and that the sheet kept slipping. She explained at trial that she had not wanted to impact his job, that she remembers the event, and that he did touch the side of her breast.

[36] When interviewed by the police, on February 12, 2019, she said that Mr. Ackerman’s hand came close to her breast, and that she thought that he had “pretty much like” touched her breast. At the preliminary inquiry, on March 9, 2020, Ms. LK said that Mr. Ackerman’s hand came very close to the side of her breast and that she believes that he did touch the side of her breast as he massaged her armpit. She testified that her breast was “a bit exposed” when the sheet fell. She was able to replace the sheet, but Mr. Ackerman did not assist her.

[37] She said that before the preliminary inquiry, she also read the complaint against Mr. Ackerman involving another complainant that was posted on the College of Massage Therapists’ website.

Ms. G

[38] Ms. G was massaged by Mr. Ackerman on March 7, 2018.

[39] She had undergone hip surgery earlier in February 2018 and was attending physiotherapy treatments. On March 7, 2018, her mid-back and lower back were painful, and she asked her physiotherapy clinic if they could arrange a massage after her physiotherapy treatment. During her cross-examination, she confirmed that her back pain was almost unbearable that day. Her hip was sore as well, and, during her cross-examination, she confirmed that, prior to her massage, she heard Mr. Ackerman talk to her physiotherapist about her condition and ongoing treatments.

[40] She testified that she told Mr. Ackerman that she had back pain and only wanted her back massaged. She completed the standard paperwork, indicating that she had discomfort in her mid and low back region. She kept her long running pants on and lay face down on the massage table.

[41] Mr. Ackerman massaged her shoulders, arms, and back. Further into the massage, Mr. Ackerman also massaged her glutes and her legs, over both the sheet and her pants for about 10 to 15 minutes. She testified that she did not consent to her glutes and legs being massaged. He massaged her hips and both glutes. The sheet never came down and he massaged over it. She testified that she had not consented to this, that she felt shocked, uncomfortable, disrespected, that she froze, and said nothing while he massaged her buttocks.

[42] She said that while he was massaging her arms and shoulders, Mr. Ackerman frequently asked her to make noise to hear the relief. She did not make any noise.

[43] Towards the end of the massage, she told Mr. Ackerman to only massage her back, and he said “yes” and did as she had asked.

[44] At the time, Ms. G was living with her mother. When her mother got home later that day, Ms. G told her that she did not like her massage and that it had made her feel uncomfortable. She testified that she never got a massage after that, and that she stopped physiotherapy treatments as well. However, she might have attended her physiotherapy treatment of March 12, 2018, but not after.

[45] On March 9, 2018, Mr. Ackerman called Ms. G. Her mother answered the call, and Ms. G understands that Mr. Ackerman was calling to see how she was doing. Ms. G thought that it was “weird” that Mr. Ackerman would call after a massage. She testified that his call “crossed the line”.

[46] She said that after the call, still on March 9, 2018, she and her mother looked Mr. Ackerman up on the College’s website. They saw a complaint involving serious allegations of sexual abuse. This complaint is not from one of the four complainants involved in this trial. Ms. G was concerned by what she saw and wondered why Mr. Ackerman was still practicing. She said that they were both really upset by what they saw. She felt that she was a victim too, called the clinic, made a complaint to the College, and reported this to the police by March 20, 2018. She gave a police statement and agreed, during her cross-examination, that the police communicated to her the idea that she had been the victim of a sexual assault.

[47] The parties agreed that the preliminary hearing transcript of Ms. DG’s evidence would be admitted as her evidence at this trial. They also agreed that the notes taken by Ms. DA would also be admitted as her evidence for this trial.

[48] Ms. DG is the mother of Ms. G. Ms. DG testified that she spoke to the police shortly after the events involving her daughter, and that she gave a statement in September 2018.

[49] Ms. DG first spoke to her daughter about her daughter’s massage when Ms. DG returned home from work later during the day of the massage. Her daughter told her that parts of the massage had made her uncomfortable, specifically the therapist’s working on her hip area and glutes, and the therapist asking her to make noise.

[50] Ms. DG felt that this was “kind of weird … that it was not appropriate.” Ms. DG counselled her daughter to immediately report this to the clinic. Her daughter did not call the clinic until a couple of days later, after her daughter received a telephone call from the accused. Ms. DG said that she was in the car with her daughter, who was driving, when a call came in from the clinic on her daughter’s telephone. Ms. DG answered, and it was Mr. Ackerman. He asked if he could speak with Ms. G, but as she was driving and could not take the call, he asked how Ms. G was doing. Ms. DG already felt that the massage had been weird and agreed that this call took “it up to another level of odd or weird in her mind.” Ms. DG said that at this point they decided that something had to be done.

[51] Ms. DG could not remember the timing but remembered that they researched Mr. Ackerman on the Internet. She remembered that she had called the clinic to complain and that she had been informed that if they had a complaint, they should make it to the College. While making a complaint or at some point while reviewing the College’s website, they saw a serious complaint of sexual “something” involving Mr. Ackerman inappropriately touching a patient, and Ms. DG decided that they had to call the police.

[52] Ms. DA worked at the clinic where Ms. G attended for physiotherapy. Pursuant to an agreed statement of facts, the notes of Ms. DA were admitted as her evidence at trial. They indicate that on March 12, 2018, after her physiotherapy treatment of that day, Ms. G explained to Ms. DA her dissatisfaction with Mr. Ackerman’s massage. Ms. DA relayed this to the clinic owner and was informed that all complainants had to go through the College. Ms. DA relayed this information to Ms. G.

Expert Evidence

[53] The Crown called a registered massage therapist, Ms. Shelley Beauchemin, to testify about proper massage therapy practices. Ms. Beauchemin answered questions candidly and fairly, she was an excellent expert witness.

[54] Ms. Beauchemin explained that consent to treatment is one of the most important rules that is imparted to massage therapists. As part of their training, massage therapists are taught that informed consent to treatment must be obtained prior to treatment and that it must be documented. This includes explaining to each patient what should be treated, why, and what parts of their body will have to be touched to provide the recommended treatment. This involves a discussion prior to treatment and the client either agreeing or disagreeing with the suggested treatment plan, and the massage therapist then acting accordingly. During treatment, the massage therapist should continue to explain to the patient why the therapist is touching the previously agreed part(s), explaining as well that the patient may, at any time, ask the therapist to stop.

[55] She explained that a 2017 publication by the College of Massage Therapists of Ontario, entitled “Maintaining Professional Boundaries and Preventing Sexual Abuse”, was not in 2017 establishing new concepts, but was rather a new consolidation of what was already applicable. This publication is helpful because it describes how massage therapists should maintain professional boundaries, the importance of draping, and how to prevent sexual abuse. It describes sexual abuse by a massage therapist to include “touching, of a sexual nature, of the client by the registrant, or behaviour or remarks of a sexual nature by the registrant towards the client.” It also provides that “Sexual nature does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided.”

[56] She also explained that specific consent is required prior to treating sensitive areas. These include chest wall musculature, breast, upper inner thigh, and gluteal region. Included in this discussion is the agreed-upon draping while a sensitive area is treated. As reflected by the College’s 2017 publication, treatment of a sensitive area must be clinically indicated, discussed with the client, and the client’s consent to suggested treatment and draping obtained.

[57] Ms. Beauchemin was not aware of any clinical reason to massage the fatty parts of a woman’s breast. However, she explained that incidental touching of the breast might occur and that the therapist may need to ask the patient to move her breast as required to better access the chest wall or the parts being treated. She was not aware of a clinical indication that required lymph nodes to be massaged to treat complaints of back pain. During her cross-examination, she recognized that massaging the pectoral muscles would involve touching some of the fatty tissues of the breasts. As well, she recognized that the treatment of chest tightness or chest issues may involve massaging along the breast line. She said that this could involve light compression of the lymph chain, including the armpits, but that the therapist would have to be careful “not to touch the breast tissue that may fall to the side.”

[58] She indicated that, although not frequently used, patients may be massaged to treat lower back pain while lying on their side. She explained that this should be discussed with the patient beforehand, as part of the consent to treatment discussion. During her cross-examination, she said that this position may assist massaging the armpit while avoiding incidental touching of nearby breast tissue.

[59] During her cross-examination, Ms. Beauchemin said that the ribs are potentially connected to back issues, and that massaging the chest wall might be helpful. She said that the ribs area would more typically be massaged while the patient is lying on his or her back, but that it could as well be massaged while the patient is lying on his or her stomach. However, she said that the latter approach is rare because it makes it more difficult for the therapist to know what areas are being touched. In re-examination she said that there is a technique to massage from the back to the pectorals, but that the massage therapist must avoid broad motions and be careful to avoid breast tissue. She added that it could be indicated to massage the breast tissue while massaging the area of the ribs, but only with the patient on her back and with her prior consent.

[60] Ms. Beauchemin explained that it may be clinically indicated to massage the gluteal region to treat back pain, particularly low back issues. She said that upper back pain would more rarely connect to this region. Additionally, she said it may be clinically indicated to massage the glutes to treat a leg injury because it affects the hips, low back, and glutes. However, there would be no clinical indication to massage the breasts to treat a leg injury. During her cross-examination, she added that hip issues may be connected to the back, and that it may be clinically advisable to massage the hips and the glutes in circumstances involving hip issues. As well, she said that complaints of mid and lower back pain could be connected to the legs.

[61] Ms. Beauchemin explained that patients should be covered, and that required exposure should be discussed and consented to. She recognized that accidents happen, that a sheet may fall, and said that in such circumstances, the therapist re-applies the drape line, apologizes, and moves on. She explained that without specific consent for required treatment, the lower parts of the breasts should remain covered. She said that when required, massaging over the sheet is just as effective.

[62] Ms. Beauchemin agreed that muscles are interconnected. She agreed that an element of disrobing is associated with massages, and that there is a level of implied consent to some basic touching when attending for massage treatments. Moreover, she recognized that standards of practice are what should happen, but that occasionally the practice of a therapist might not always reflect applicable standards because of bad habits acquired over the years. She recognized that bad habits may unfortunately occur and, during her re-examination, added that these might constitute a breach of professional practice.

Mr. Ackerman

[63] Mr. Ackerman is 56 years old. He is married and has three daughters.

[64] Mr. Ackerman attended an 18-month-long program and became a registered massage therapist in 1997. He was a member in good standing with the College of Massage Therapists of Ontario from 1997 to 2018, when his rights to practice were suspended for an unrelated complaint that he decided not to defend. He attended required continuing educational programs and received the College’s ongoing literature, by mail initially and more recently by email. In addition to his self-employed practice as a massage therapist, he also occasionally taught massage therapy until 2007.

[65] Mr. Ackerman testified that although he prided himself in treatment massages, he was occasionally negligent when it came to regularly reading the College’s literature, particularly that which he received by email. He said that as he became more experienced, he also became lax with regards to some of his practices, including his charting or note taking which he said were not always complete.

[66] However, Mr. Ackerman was adamant that he always obtained each client’s consent prior to treatment. He said that he would ask his clients why they attended, explain his recommended treatment, and obtain his client’s verbal consent. He said that he always checked in with his clients during treatment to make sure that they were relaxed, and to update them as required. He gave the example of a patient attending for back pain and his noticing leg issues. He said that things arise while a patient is on the table, and that he updated them. If this situation arose, he said that he would explain to the patient why he should also treat the patient’s leg, what it involved, and said that he would seek the patient’s consent to also treat the leg. He said that what each complainant alleges is not something that he would have done in his practice.

[67] Mr. Ackerman does not remember any of the four complainants or any of the facts relating to any of the four complainants. He said that he does not understand why these charges were brought because he believes that he obtained the consent of each of the four complainants to the treatment that he provided. Mr. Ackerman disputes the allegations of each of the four complainants based on his stated standard practice of always obtaining his patient’s consent prior to treatment and of only providing the treatment which was previously consented to.

[68] He explained that, although this varied, he occasionally saw four to five patients per day, and cannot remember any of the four complainants.

[69] Ms. G was seen in March 2018. Mr. Ackerman said that he does not remember her because nothing stands out, and he only learned of her complaint about seven months later when he was arrested on October 5, 2018.

[70] He said that he has no recollection of treating Ms. M as he treated her in 2015. Mr. Ackerman was arrested for her allegation in January 2019.

[71] He testified that as per his standard practice, he would have treated Ms. M only where she wanted to be treated. He said that he would not have massaged her inner thigh, near her vagina to treat her leg or knee, as this was not indicated. He said that, as per his standard practice, he would not have massaged her glutes without her prior consent. Similarly for her chest wall and chest, Mr. Ackerman said that he would not have massaged that area without her consent. He said that whenever he massaged a woman’s pectoral muscles, he obtained her prior consent and sought her assistance to move her breasts as required. With regards to draping, he said that he would not have left Ms. M exposed and that if the sheet had accidentally fallen off, he would have covered her back up as soon as possible and apologized. He also said that he would not have massaged her stomach, as she alleged, because this would not have been indicated if she suffered from colitis.

[72] Similarly, Mr. Ackerman said that he has no recollection of Ms. LC. He testified that, in the past, he has massaged some patients as she described but always with their consent and never on the front of their ribs while they lay face down.

[73] He testified that he has no independent recollection of Ms. LK. He might have commented positively about her posture, like she said, but he does not think that he would have touched her shoulder, although he does not remember. He said that massaging her while on her side would have been the best way to access these muscles and lymph nodes, but that he would not have done so without her prior consent. He recognized that draping is difficult to maintain while the patient is on her side and said that he would have covered her right away if the sheet fell off.

[74] He said that he always took a full intake history, discussed the patient’s condition, discussed the patient’s level of comfort, and sought the patient’s consent, which he would explain could be withdrawn at any time. Although he does not remember doing so for the relevant complainant, if a patient also saw a physiotherapist at the same clinic, he would attempt to talk to the physiotherapist to ensure that he did not worsen the patient’s condition; he said that this is certainly something that he might have done.

[75] Mr. Ackerman preferred deep tissue massages and treatment massages to relaxation massages. He testified that he was treatment oriented. He said that if a patient requested treatment only to her or his back, he would not massage the patient’s glutes or legs without their prior consent.

[76] He also testified that he regularly asked patients to breathe out or to make breathing noises. He said that patients need to breathe in and out during a massage for the massage to be more effective.

[77] He does not recall calling any of the complainants but said that this is something he did. He said that he did this to follow-up on treatment, to see if the patient had any concern, to suggest a treatment plan, and to discuss the patient reattending.

[78] Mr. Ackerman expressed bitterness about his perception of how he has been treated by the College and by the media. As a result, he said that he voluntarily decided to leave the College and did not defend the other complaint made to the College.

[79] During his cross-examination, Mr. Ackerman agreed that he does not remember any of the four complainants, and therefore cannot remember any of the complainant’s consenting. He also agreed that none of his notes about any of the four complainants outline the complainant’s alleged treatment or his alleged consent. He said that if it is not noted on the form, then the complainant did not give him consent for the parts that he allegedly massaged. He repeated that he would always have obtained his patient’s consent, and that he would have stopped whenever a patient asked to stop. He recognized that a massage patient can be in a vulnerable position and that massage treatments can be quite intrusive.

Issue

[80] The issue in this case is whether the Crown has proven beyond a reasonable doubt that the accused committed the offences charged.

Legal Principles

General Principles

[81] Accused persons are presumed innocent and the burden of proving their guilt beyond a reasonable doubt is always on the Crown.

[82] Proof beyond a reasonable doubt is a doubt based on reason and common sense that logically arises from the evidence or from the absence of evidence. A reasonable doubt is not far-fetched or frivolous; it does not involve proof to an absolute certainty or proof beyond any doubt.

[83] To be convinced beyond a reasonable doubt means to be certain that an offence has been made out. A finding of not guilty is required where the evidence only manages to convince the decision-maker that an offence probably or likely occurred.

[84] In R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, and cases that followed, the Supreme Court provides guidance to the analysis of reasonable doubt when an accused testifies. Although W.(D.) addressed a jury charge on reasonable doubt, and although its applicability depends on the context, it provides a helpful map to the analysis of reasonable doubt:

a) In the context of all the evidence, consider whether you believe the accused. If you do, you must acquit (unless of course the evidence of the accused does not negate criminal liability).

b) If you disbelieve the accused, consider whether this evidence, in the context of all the evidence, nonetheless leaves you with a reasonable doubt about the guilt of the accused. If it does, you must acquit.

c) Even if you disbelieve the evidence of the accused, and even if you are not left with a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proven its case. If the accused’s evidence does not leave you with a reasonable doubt, you must determine whether the totality of the evidence has proven the accused’s guilt beyond a reasonable doubt – whether, on all the evidence called, the Crown has proven each element of the offences charged beyond a reasonable doubt. However, the evidence does not have to answer every question raised in the case, but only those matters essential to prove the crime. The onus is always on the Crown to prove the guilt of the accused beyond a reasonable doubt.

[85] The accused’s evidence must be considered in the context of the other evidence, including that of the complainants. In R. v. Hull, 2006 CanLII 26572 (Ont. C.A), at paras. 4-6, the Court of Appeal stated, “W.(D.) and other 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”.

[86] Moreover, the W.(D.) analysis does not require a court to find some flaw or inconsistency in the accused’s evidence to decide that it rejects it. It can be rejected based on a consideration of the totality of the evidence and solely based on the acceptance of the complainant’s evidence: see R. v. R.A., 2017 ONCA 714, 355 C.C.C. (3d) 400, at paras. 53-56, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307.

[87] It is important to note that in deciding a case, a judge is not comparing each account and deciding which account he or she believes: see R. v. Esquivel-Benitez, 2020 ONCA 160, 61 C.R. (7th) 326. A judge can believe or disbelieve a witness, but still be left with a reasonable doubt considering all the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony. The Crown is not required to point to something inherently contradictory or demonstrably false in the evidence of the accused for his or her evidence to be rejected. Similarly, frailties and inconsistencies in a complainant’s evidence do not necessarily mean that his or her evidence should be rejected: see R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at paras. 46-48, leave to appeal to SCC refused, [2007] S.C.C.A. No. 69.

[88] A trial judge cannot treat the criminal standard of proof beyond a reasonable doubt as a credibility contest. A judge cannot conclude that something has been proven beyond a reasonable doubt simply because the judge prefers the evidence of the Crown witnesses.

[89] Proof beyond a reasonable doubt is not a choice between two alternatives; a court need not resolve conflicts in evidence. As indicated by the Court of Appeal: “There was, of course, a third alternative, namely, if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal”: R. v. Nimchuk (1976), 1977 CanLII 1930 (ON CA), 33 C.C.C. (2d) 209 (Ont. C.A.), at p. 210.

[90] Our law has developed this way because of the risks that accused people face when they are charged with criminal offences. Before a person is required to face the consequences of a criminal conviction, a judge must be sure that the accused committed the offences with which the accused is charged. If the evidence does not convince the judge beyond a reasonable doubt that the accused committed the offence, the accused must be acquitted.

[91] The accused does not bear an onus to prove that a witness or complainant has a motive to lie. People may accuse others of committing a crime for unknown or no reasons. It therefore does not necessarily follow that because there is no apparent reason for a motive to lie, a witness must be telling the truth: see R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 22-23.

[92] Assessing the credibility and reliability of the witnesses’ evidence is important.

[93] Credibility relates to a witness’ veracity, whereas reliability concerns the accuracy of the witness’ testimony. Both require a careful assessment. A witness may believe his or her evidence to be true, yet that evidence may not be reliable.

[94] Caution is required in considering favourable or unfavourable demeanour evidence. As indicated in R. v. M.M., 2016 ONSC 5027, at para. 59, and R. v. D.M., 2016 ONSC 7224, at para. 23, whether demeanour is related to in-court or out-of-court behaviour, it can be easily misinterpreted: see also R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27. Demeanour evidence alone can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness as “the law does not clothe the trial judge with divine insight into the hearts and minds of the witnesses” and demeanour should not be sufficient where there are significant inconsistencies and conflicting evidence: R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), at p. 314, citing Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C. C.A), at p. 357.

[95] More valuable means of assessing witnesses are to consider the consistency of what they have said on a material matter (internal and external contradictions) and improbabilities (exaggerations or illogical propositions). However, inconsistencies vary in their nature and importance; some inconsistencies are minor or concern peripheral subjects, others are more important or involve a material issue or something material.

[96] Demeanour evidence is however not completely irrelevant; for example, the way that a witness testifies, such as unanswered questions, hesitations, challenging counsel, or run-on and unresponsive answers, may in certain circumstances be prudently considered by judges in their assessment of witnesses in conjunction with their assessment of all the evidence: see e.g., Hull, at paras. 8-9; R. v. Boyce, 2005 CarswellOnt 4970 (C.A.), at para. 3.

[97] Credibility assessments cannot be founded on myths and stereotypes. The Court of Appeal warns us in R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286, at para. 14, that “it is an error of law to rely on pre-conceived views about how sexual assault victims would behave… These are the ‘myths’ of appropriate behaviour that the law seeks to eradicate.”

[98] For example, a complainant’s failure to immediately report a sexual assault will never give rise to an adverse inference against the credibility of a complainant. Rather, the analysis must relate to the evidence, and not to some stereotypical understanding: see Cepic, at paras. 13-14, and see also R. v. Lacombe, 2019 ONCA 938, 59 C.R. (7th) 390, at paras. 40-42. There is no correct or expected way for a victim of sexual assault to behave and reasons for delayed disclosure “are many”: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65 and R. v. D.P., 2017 ONCA 263. Credibility assessments must be tethered to the evidence, and the timing of a complaint is simply one of the many factors to consider when assessing the complainant’s credibility and reliability – “the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case”: D.D., at para. 65.

Sexual Assault

[99] For a conviction of sexual assault, the Crown must prove beyond a reasonable doubt that the accused committed the actus reus of the offence – that the accused touched another person without his or her consent in circumstances of a sexual nature – and that the accused had the necessary mens rea – 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.

[100] Consent is treated differently at each stage of the analysis outlined above. For the actus reus component of the offence, consent refers to the complainant’s subjective mind. Did the complainant subjectively consent to the activity in question? The complainant does not have to express her lack of consent. At this stage, the focus is on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. The complainant’s assertion that she did not consent is a matter of credibility, but if the judge accepts that the complainant did not consent, then there was no consent. There is no defence of implied consent to sexual assault. For the mens rea component of the offence, the focus shifts to the accused’s mental state. Sexual assault is a crime of general intent and, as a result, to establish mens rea the Crown need only prove that the accused intended to touch the complainant and knew of, or was willfully blind or reckless as to, the complainant’s lack of consent: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 23-26, 41-42. Sexual assault is a general intent offence that does not require proof of sexual purpose or sexual gratification on the part of the accused: R. v. Trachy, 2019 ONCA 622, 379 C.C.C. (3d) 51, at para. 72.

[101] Honest but mistaken belief in communicated consent is a denial of mens rea that is considered a defence. However, the defence of honest but mistaken belief in communicated consent is not always available. In this regard, the importance of communicated consent, whether by words or conduct, cannot be overstated.

[102] Section 273.2(c) of the Criminal Code, R.S.C. 1985, c. C-46, holds that the defence of honest but mistaken belief in consent is not available where there is no evidence of the complainant affirmatively communicating consent, by words or actions, to the accused: see R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 121-122. Section 273.2(b) also creates an obligation on the accused to ascertain if the complainant is consenting; it imposes a precondition to the defence – no reasonable steps, no defence. It states that belief in consent is not a defence 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”. Steps based on myths and stereotypical assumptions about women and consent are not reasonable steps. For example, a complainant’s silence, passivity, or ambiguous conduct is not a reasonable step. As well, recklessly or knowingly engaging in non-consensual sexual touching, such as “testing the waters”, is not a reasonable step: see Barton, at paras. 106-107.

[103] The test to be applied to determine whether the conduct was of a sexual nature is objective. The court must look at all the circumstances surrounding the conduct to determine, on an objective basis, whether the circumstances were of a sexual nature and violated the sexual integrity of the complainant. Considering all the circumstances, would the sexual nature of the circumstances be visible to a reasonable observer? The parts of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, the intent or purpose of the touching, and all other circumstances surrounding the conduct should be considered. Any evidence relating to the intent or to the purpose of the touching is only one of the many factors to be considered when assessing the sexual nature of the circumstances, as sexual purpose is not an essential element of the offence of sexual assault: R. v. Trachy, at paras. 72-85 and R. v. Marshall, 2017 ONCA 801, at paras. 70-83.

[104] In R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, the Supreme Court stressed the importance of looking at all the circumstances surrounding the accused’s conduct when assessing whether the circumstances or the accused’s conduct was of a sexual nature.

[105] In Bernard, Wilson J., in a concurring judgement, held that:

Sexual assault is a crime of violence. There is no requirement of an intent or purpose beyond the intentional application of force. It is first and foremost an assault. It is sexual in nature only because, objectively viewed, it is related to sex, either on account of the area of the body to which the violence is applied or on account of words accompanying the violence.

R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833, at para. 84.

Inadvertent Tainting

[106] In R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, the Supreme Court of Canada discussed concocted evidence outside of the context of similar fact evidence. The Court held that the trial judge must determine what weight, if any, is to be given to evidence that is alleged to have been concocted by means of collusion or collaboration. Under this approach, the trier of fact is obligated to scrutinize the reliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose: see Burke, at para. 45; R. v. E.M.M., 2021 ONCA 436.

[107] Collusion can arise from both a deliberate agreement to concoct evidence, as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events. It can lead to inadvertent tainting of a witness’s evidence or to the creation of a false memory: see R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321, at para. 81.

[108] More relevant to the circumstances of this case, the reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence – there is no evidence of collusion in this case – but also by the influence of hearing or reading other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns. This includes information consumed by the complainant or witness between the alleged event and trial that could shift their perception of the incident from what they were at the time the event occurred and the time of trial: see R. v. F.(J.) (2003), 2003 CanLII 52166 (ON CA), 177 C.C.C. (3d) 1, at paras. 77, 85.

Analysis

[109] The accused testified and, in analyzing the evidence, I apply the W.(D.) analytical framework (outlined above at para. 85) to the evidence applicable to each of the four complainants. As no similar fact application was brought, I do not rely on evidence on one count to establish guilt on another count, nor do I rely on the unrelated complaint to the College for that purpose.

[110] As a general comment, I found that each of the four complainants appeared to answer questions fairly and to the best of her ability. Each of the four complainants impressed me in that regard. However, as these events occurred some time ago, the complainants could not always precisely remember and, although the Crown met its burden of establishing the absence of any deliberate collusion, each of the four complainants read information about the accused which could have coloured her interpretation of what occurred or reinforced a perception of the incident about which she had doubts.

[111] The accused argues that his evidence was in harmony with itself and with the other evidence. He argues that his evidence was probable and consistent, that he did not exaggerate, and that his version of events was unmoved by skilled cross-examination. He argues, amongst other things, that the evidence of the complainants was inconsistent.

[112] However, I found that parts of the accused’s testimony confirmed his poor communication skills and a general impression of sloppiness with some aspects of his clinical practices (such as deficient charting). I can understand why each complainant left with a varying impression that her massage had been “weird”.

[113] All the same, Ms. Beauchemin recognized that standards of practice are what should happen, but that occasionally practices do not reflect applicable standards because of bad habits acquired over the years.

[114] Moreover, the question in this case is not whether the accused breached a standard of practice, but whether he committed a sexual assault.

[115] When I consider the evidence of Mr. Ackerman, applicable to each of the four complainants, I do not believe Mr. Ackerman because parts of his evidence are contradicted by his admission that, with time, he became lax with regards to some of his practices, and by his admission that he did not necessarily keep up with all legislative changes and how these impacted his practice of massage therapy.

[116] However, as outlined below, when I consider, for each of the complainants, the evidence of Mr. Ackerman and the totality of the evidence, I am left with a reasonable doubt about the guilt of Mr. Ackerman on each of the four counts of the indictment.

Ms. M

[117] Ms. M remembered a five-minute conversation with Mr. Ackerman before the massage to discuss what she wanted and did not want. She could not remember precisely what was discussed. Mr. Ackerman did not at all remember that encounter but testified that he would have obtained verbal consent for whatever treatment he provided, and that he would never have massaged her breasts or massaged as close to her inner thigh as she described. He has no notes confirming any verbal consent but testified that his charting was lax.

[118] Ms. M answered questions fairly, but parts of her evidence are inconsistent. As a result, I have issues with the reliability of her evidence, sufficient to leave me with a reasonable doubt on the material elements of touching, consent, and whether the circumstances were of a sexual nature.

[119] Ms. M testified in chief that she was “in a bit of shock” when Mr. Ackerman massaged “her entire rear side”. She said she was not comfortable and felt anxious while that was occurring.

[120] However, during her cross-examination, Ms. M said that Mr. Ackerman asked her if she wished to have her glutes massaged, and she then testified that she said “yes”. She said that he worked on her left and right glutes and that it “did relieve tension”. During her cross-examination she said that she was very at ease with him massaging her glutes.

[121] As well, her evidence in chief left the impression that the sheet which covered her was completely off for many parts of her massage. In addition, in chief, she said that the sheet fell off when the accused was massaging her glutes.

[122] However, during her cross-examination, Ms. M said that the sheet was still covering other parts of her body when Mr. Ackerman massaged her glutes. At that point of her cross-examination, she said that she was not sure when the sheet fell to the floor, but that it was near when Mr. Ackerman asked her to turn over. Later, during her cross-examination, it was suggested to her that the sheet stayed on the entire time. She took a long time to answer that it had fallen off; she said that the sheet ended up on the ground at some point. Ultimately, her evidence about this was that the sheet fell off twice during the massage, once on each side, and she was adamant that it had not fallen off accidentally. Mr. Ackerman said that if the sheet accidently fell off, he would have quickly replaced it. The expert said that sheets do, on occasion, accidentally fall off.

[123] In chief, Ms. M also said that she felt “a little shock and frozen” when Mr. Ackerman briefly massaged parts of her inner thigh. She said that she did not feel that this was appropriate. However, during her cross-examination, she said that, at the time, she did not feel that this was inappropriate, she “just thought it was different”. Mr. Ackerman said that he would not have done this, that it was not indicated.

[124] Ms. M’s chest was tight, and she wanted Mr. Ackerman to address this. She said that he massaged her entire breasts, except for the area of her nipples, without her consent. However, she did not mention Mr. Ackerman touching the fatty tissues of her breasts during her police statement, although she said that he massaged her entire breasts. Ms. Beauchemin testified that massaging the pectoral muscles could be indicated in such circumstances, and that some incidental touching of the breasts and breasts’ fatty tissue might occur. Mr. Ackerman said that he would not have massaged her pectoral muscles without her consent.

[125] Ms. Beauchemin testified that it may be clinically indicated to massage the gluteal region to treat back pain. It would not have been indicated to massage her abdomen, and Mr. Ackerman testified that he would not have massaged her abdomen.

[126] Although it may have seemed “weird” to Ms. M that Mr. Ackerman called her back, Mr. Ackerman testified that he occasionally called back patients to see how they were doing and to follow up on treatment.

[127] As well, I have some concern that Ms. M’s perception and recollection of what occurred could have been influenced by the article she read about Mr. Ackerman being charged with one count of sexual assault. Her testimony about when she felt that the massage had been inappropriate was not entirely convincing considering what she said at the preliminary inquiry and in her police statement about when she had felt that the massage was inappropriate or “a little inappropriate”.

[128] Considering the above, I have a reasonable doubt whether the accused massaged her breasts and thighs, as she described, and a reasonable doubt about consent.

[129] As well, when I consider all the relevant circumstances, I am left with a reasonable doubt whether a reasonable observer would consider that the touching of Ms. M during the massage performed by Mr. Ackerman occurred in circumstances of a sexual nature. Indeed, as outlined above, I have issues with the reliability of the evidence of Ms. M, and there is a clinical explanation for some of the alleged touching; enough to leave me with a reasonable doubt about this material element of the offence.

[130] I am therefore left with a reasonable doubt on count two of the indictment.

Ms. LC

[131] Accepting the evidence of Ms. LC, we have:

• Ms. LC lying on her stomach, while Mr. Ackerman massages her back.

• At some point, Mr. Ackerman’s hands massage from the top of Ms. LC’s back down her sides.

• While going down her sides, Mr. Ackerman’s hands touch the side of her breasts, and the upper portion of his hands touch the flattened portion of her breasts as each hand squeezes in between her ribs and her breast, as each hand goes down on her side.

• Ms. LC feels uncomfortable, and at some point, she asks “how is this helpful?”

• Mr. Ackerman continues and tells her something about releasing blood flow, which she did not accept, but she does not recall the specifics of her conversations with Mr. Ackerman.

• Soon after, Mr. Ackerman refocuses on her back.

• Ms. LC feels uncomfortable and vulnerable until the massage concludes.

[132] We also have the evidence of Ms. Beauchemin that the ribs are potentially connected to back issues, and that massaging the chest wall could be a helpful treatment for back issues. Ms. Beauchemin said that the ribs area would more typically be massaged while the patient is lying on her back, but that it could as well be massaged while the patient is lying on her stomach. She also admitted that, although therapists should be careful to avoid touching breast tissue, in certain circumstances some incidental touching of a breast might occur. Her evidence provides a clinical explanation for parts of what occurred.

[133] Accepting the evidence of Ms. LC, I am therefore left with a reasonable doubt whether a reasonable observer would consider the circumstances of the alleged touching to have been sexual in nature.

[134] I therefore find the accused not guilty on count three of the indictment.

[135] I arrive at a similar result for each of the other two complainants.

Ms. LK

[136] It is not clear whether Mr. Ackerman touched the side of one of Ms. LK’s breasts when he massaged her armpit. Ms. LK described this differently at varying times. Although she explained this and although, like the other complainants, she appeared to be a credible witness, the reliability of her evidence could have been affected by the article about Mr. Ackerman facing new charges of sexual assault that she read in January 2019, when she decided to call the police. It could also have been affected by the complaint on the College’s website, outlining a serious complaint of sexual assault against Mr. Ackerman. Any of these could have shifted Ms. LK’s perception of whether Mr. Ackerman touched the side of her breast, and of how exposed her breast was when the sheet fell.

[137] The expert, Ms. Beauchemin, testified that patients may be massaged to treat lower back pain while lying on their side, and during her cross-examination said that this position may assist massaging the armpit, although it is not clear what the clinical indication would have been to massage Ms. LK’s armpit.

[138] When I consider all relevant circumstances, including the above, the part of the body touched, how it might have been touched, the nature of the contact, and the situation in which the contact occurred, I am left with a reasonable doubt whether a reasonable observer would conclude that the alleged touching occurred in circumstances of a sexual nature.

[139] I therefore find the accused not guilty of count four of the indictment.

Ms. G

[140] Ms. G initially felt that the massage had been unprofessional and thought that Mr. Ackerman crossed a professional line when he called her. After she read the unrelated serious complaint against Mr. Ackerman on the College’s website, she became more concerned and felt that she was a victim too. This was reinforced by the police who told her that she had been the victim of a sexual assault. Her perception of the massage could have been shifted.

[141] Ms. G was experiencing severe back and hip pain. Her back pain was so unbearable that she requested this massage. She had recently undergone hip surgery, and her hip was also sore that day. She remembers seeing Mr. Ackerman talking with her physiotherapist, which confirms Mr. Ackerman’s stated practice of seeking out such information when possible. She kept her long pants on, was covered by a sheet, and lay face down on the massage table. Mr. Ackerman massaged her shoulders, arms, and back, and, at some point, he massaged her glutes and her legs for what she thinks was about 10 to 15 minutes (during a 45-minute massage) over both the sheet and her pants. Ms. G did not consent to the latter. Ms. G felt shocked, uncomfortable, vulnerable, and disrespected.

[142] Ms. Beauchemin explained that it may be clinically indicated to massage the gluteal region to treat back pain, particularly low back issues. Ms. Beauchemin also said that it may be clinically indicated to massage the glutes to treat a leg injury as it affects the hips, low back, and glutes. She added that hip issues may be connected to the back, and that it may be clinically advisable to massage the hips and the glutes in circumstances involving hip issues. As well, she said that complaints of mid and lower back pain could be connected to the legs.

[143] While Mr. Ackerman was massaging Ms. G’s arms and shoulders, he frequently asked Ms. G to make noise, said that he wanted to hear the relief. Ms. G did not make any noise. Mr. Ackerman testified that he regularly asked patients to breathe out or to make breathing noises because he believes that breathing makes the massage more effective.

[144] A few days after the massage, Mr. Ackerman called Ms. G to inquire how she was doing. Ms. G thought this was inappropriate and that it crossed a line. Mr. Ackerman explained that he frequently called patients to follow up.

[145] When I consider all relevant circumstances, including the above, the part of the body touched, the nature of the contact, and the situation in which the contact occurred, I am left with a reasonable doubt whether a reasonable observer would conclude that the alleged touching occurred in circumstances of a sexual nature.

[146] I therefore find the accused not guilty of count one of the indictment.

Conclusion

[147] The accused is found not guilty on each of the four counts of the indictment.

Mr. Justice P. E. Roger

Released: September 26, 2022

COURT FILE NO.: 19-RA18018

DATE: 2022/09/26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

– and –

JOHN ACKERMAN

REASONS FOR decision

Roger J.

Released: September 26, 2022