Warning, this story contains details of an alleged sexual assault.
A Victoria massage provider will not be able to appeal an order for a new trial in relation to two counts of sexual assault after a judge found the appeal would not have a “reasonable prospect of success.”
John Heintzelman was acquitted of the charges, which was then appealed by Crown and on Sept. 6, 2019, a summary appeal judge ordered a new trial. Heintzelman argues that the summary appeal judge erred in law by setting aside the acquittal and ordering a new trial.
Court of Appeal Justice Gail Dickson dismissed the application, stating she did not agree with Heintzelman’s submissions and saw no error in the summary appeal judge’s ruling.
Heintzelman operated a massage business from a basement studio in his James Bay home. Heintzelman allegedly sexually assaulted two women, whose names are protected by a publication ban, and can only be identified as E.M. and T.T.
Both E.M. and T.T. were clients of his. The first assault is alleged to have occurred on July 2, 2017.
At trial, E.M. testified that Heintzelman touched her sexually on the breasts and genital area while he was performing a hot stone massage. She reported it to the police four days later and on July 9, 2017 Heintzelman was arrested and released on bail conditions.
A few months later, on Oct. 20, Victoria police posted on Facebook asking for more victims to come forward, naming Heintzelman, along with the current and past names of his business and the location of his studio.
T.T. saw the notice and contacted the police on the same day, alleging Heintzelman sexually touched her breast and genital area during a hot stone massage in December 2013. She told the courts she didn’t come forward earlier because she was on medication for mental health issues.
Court documents show the two women’s accounts of the separate alleged incidents both involved Heintzelman telling them to remove all their clothes and to lie on their backs on his massage table. Both said he placed hot stones under their back and began to massage their body including their genitals and breasts. Both accounts noted he pinched their nipples very hard. Both women said Heintzelman placed their cupped hand under his penis and that he moved his body or their hand in a way that stroked his penis.
Heintzelman denied ever touching them in a sexual manner.
Provincial court Judge Ted Gouge stated each of the witnesses “presented eminently credible,” with Crown counsel submitting that, by reason of the similarity of their accounts, the evidence of each complainant is corroborative of the other.
However, the judge stated in his ruling that two things reduced the “corroborative weight” of the women’s testimony: the potential impact of the one woman’s mental illness on her evidence, and police conduct during the investigation.
Gouge said that he had very little information to assist in assessing the impact, if any, of the one woman’s mental illness or her medication on the reliability of her evidence.
He noted that the Facebook post the Victoria police had published to seek additional witnesses, tainted the ability to test the veracity of the second complaint that came forward.
The summary appeal judge ordered a new trial after finding the trial judge erred in allowing the weight to be given on such evidence to be affected by “what appears to have been speculations about the possible impact on that evidence of the psychiatric condition and medications taken by one of the complainants.” The judge went on to state this error was supplemented by the trial judge’s treatment of the media release and its possible impact on the evidence from both women.
Heintzelman appeared in court on Jan. 13 to fix a date but was adjourned to Feb. 20.