A B.C. judge has ordered a new trial for a Victoria massage technician accused of sexually assaulting two clients, saying the decision to acquit the man was at least based on faulty reasoning.
In December 2018, John Heintzelman was found not guilty of two counts of sexual assault. He had been accused of assaulting two clients, one in 2013 and one in 2017. Heintzelman was operating his massage business in the basement of a James Bay home at the time. Both clients reported unwanted touching during hot stone massages
The judge in the first trial suggested Victoria police had given away too much information in a news release seeking other alleged victims. He also wrote that he didn’t have enough evidence about the impact the second complainant’s mental illness might have had on her testimony.
Heintzelman was arrested in 2017 after client reported he’d fondled her breasts, inner thighs, buttocks and genitals during a hot stone massage.
Victoria police put out a plea for additional victims to come forward. The police’s news release included Heintzelman’s name and address of his studio.
A second woman then contacted police and claimed Heintzelman assaulted her during a 2013 massage.
In a judgement released Friday, B.C. Supreme Court Justice Robert Johnston wrote that the lower court judge’s reasoning was faulty, saying he committed errors of law.
“I am satisfied that the errors had a material bearing on both acquittals and that verdicts would not necessarily have been the same if the errors had not been made,” Johnson wrote.
Johnson wrote that it was not clear to him why the first judge, Ted Gouge, “felt it important to school the police force in how to draft a media release is not clear, nor is it clear why there might be an analogy between the impact of a media release on similar fact evidence and dock identification.
“But the issue is whether the trial judge erred in concluding that the media release tended to reduce the weight to be given similar fact evidence,” Johnson wrote.
“Given that identification was never in issue, nothing turned on where the assaults allegedly occurred, and there was no description of the manner of the alleged assault … any impact the media release might have on the reliability of [the second alleged victim] would have to be so slight as to be negligible.”
Johnson also took issue with Gouge’s suggestion that he needed more information about the second complainant’s mental health to determine the reliability of her evidence.
Johnston said there was no evidence to suggest the woman’s mental illness had affected her testimony, and therefore it shouldn’t have been a factor in the acquittal.
A new trial date has not yet been determined.
Heintzelman has denied assaulting the two women. His wife has previously testified that she was sitting in the family’s living room, directly above the massage studio in the basement, during one of the appointments and didn’t hear anything unusual.
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