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Case Name:

R. v. Zacher

Between
Her Majesty the Queen, and
Boyd Clayton Zacher

[2009] A.J. No. 1374

2009 ABPC 347

17 Alta L.R. (5th) 173

71 C.R. (6th) 141

2009 CarswellAlta 2026

Docket: 051234995P1

Registry: Lethbridge

Alberta Provincial Court

D.G. Redman Prov. Ct. J.

Heard: September 8-9, 2009.


Judgment: November 5, 2009.

(98 paras.)

Criminal law -- Criminal Code offences -- Offences against person and reputation -- Assaults --
Sexual assault -- Consent -- Honest but mistaken belief -- Wilful blindness or recklessness --
Accused, a massage therapist who gave a breast massage to a fellow massage therapist during the
course of a consensual massage, convicted of sexual assault -- He had voluntarily touched her
breasts without consent in a way that violated her sexual integrity -- Although he had a reasonable
belief in her consent and was not recklessly blind to the issue, he did not take reasonable steps in
the circumstances to ascertain whether she was consenting -- A reasonable man in his position
would have known not to touch a woman's breasts without specifically asking and getting a positive
response.
Accused charged with sexual assault. The accused and the complainant, A., were certified massage
therapists. It was a common practice amongst massage therapists to exchange services, and the
accused obtained a massage from the complainant on June 25, 2005. The complainant then obtained
a massage from the accused on July 13, 2005, during he which he allegedly massaged the
complainant's breasts. The Crown alleged this was a sexual assault. The issues were: (1) whether A.
Consented to the initial touching of her breasts; (2) whether she consented to the touching of her
breasts during the course of the breast massage; (3) if she did not consent, did the accused have an
honest but mistaken belief in consent, and if so, did such arise from his recklessness or wilful
blindness; and (4) did the accused take reasonable steps in the circumstances known to him at the
time, to ascertain that A. was consenting.
HELD: Accused convicted. The Crown had established all the essential elements beyond a
reasonable doubt. The accused voluntarily touched her breasts without consent in a way that
violated her sexual integrity. Although he had a reasonable belief in her consent and was not
recklessly blind to the issue of consent, he did not take reasonable steps in the circumstances to
ascertain whether she was consenting. The accused gave his evidence clearly, directly, consistently
and plausibility. However, there were occasions when he appeared reticent, evasive, argumentative,
and gave evidence inconsistent with what he previously gave under oath. He also displayed a
tendency to exaggerate and overstate. Meanwhile, the complainant gave her evidence clearly,
directly, consistently and plausibly. (1) The complainant did not consent to the touching of her
breasts. (2) There was no consent to the continuation of the touching of her breasts. (3) The accused
believed the complainant communicated consent to engage in the breast massage based upon her
responses to his questions and comments and based upon his interpretation of the sheet coming
down to expose her breasts. He asked her if she wanted a chest massage, and in his mind the breasts
formed part of the chest. She was a massage therapist and he believed she would understand that the
breasts included the chest. The sheet covering her came down exposing her breasts and he took that
as an indication she wanted him to massage her breasts. The court was left with some doubt as to
whether he was in fact reckless or wilfully blind. (4) Considering the reasonable man in the
accused's position, the accused did not take reasonable steps to ascertain that the complainant was
consenting. A certified massage therapist knowing what the accused knew about the privacy of a
woman's body, the need to obtain clear and concise consent, the lack of a relationship between the
complainant's problems as explained and the treatment as given, his knowledge that there was a
divergence of opinion held by massage therapists as to whether a chest massage included a breast
massage, the vulnerability of partially-dress patients, etc., he should have known not to touch a
woman's breasts without specifically asking and getting a positive response. It would have been a
simple and reasonable thing for him to simply ask: "Would you like your breasts massaged?" (5)
The touching was sexual in nature. It involved a part of the complainant's body considered to be
private and to have a sexual component. It involved stroking, cupping of the breasts and touching of
the nipples. It was not provided in any way for a therapeutic purpose as it was not in any way
related to the complainant's complaints.

Statutes, Regulations and Rules Cited:


Criminal Code, R.S.C. 1985, c. C-46, s. 265(3), s. 271, s. 273.2(a)(ii), s. 273.2(b)

Counsel:
David Labrenz, for the Crown.
Greg White, for the Accused.

Judgment
D.G. REDMAN PROV. CT. J.:--
Introduction
1 Mr. Zacher is charged with two offences under s.271 of the Criminal Code. At the conclusion
of the Crown's case a stay was entered with respect to the charge against one of the complainants
and it was agreed that none of the evidence heard with respect to that complainant would in any
way be applied in the remaining charge.
2 Both Mr. Zacher and the remaining complainant, Ms. A. were certified massage therapists
working at a massage therapy clinic in Lethbridge, Alberta. It is a common practice amongst
massage therapists to exchange services. According to this practice, Mr. Zacher obtained a massage
from Ms. A. on June 25th, 2005 and Ms. A. then obtained a massage from Mr. Zacher on July 6th,
2005 and again on July 13th, 2005. During the July 6th, 2005 massage, Mr. Zacher massaged Ms.
A.'s breasts. The Crown alleges that this was a sexual assault. The only witnesses called were Ms.
A. and Mr. Zacher.
3 In considering this matter, I will begin by reciting the issues and summarizing the respective
parties' positions on them. I will then state principles as they relate to the presumption of innocence,
reasonable doubt and the assessment of credibility. I will provide my findings of fact, analysis, and
conclusion on each issue.
Issues
4 The issues are as follows:

1. Did Ms. A. consent to the initial touching of her breasts?


2. Did Ms. A. consent to the touching of her breasts during the course of the
breast massage?
3. If Ms. A. did not consent, did Mr. Zacher have an honest but mistaken
belief in consent, and if so did his belief in the consent arise from his
recklessness or wilful blindness within the meaning of s. 273.2(a)(ii) of the
Criminal Code?
4. Did Mr. Zacher take reasonable steps, in the circumstances known to him
at the time, to ascertain that Ms. A. was consenting within the meaning of
s. 273.2(b) of the Criminal Code?
5. Was the touching sexual in nature?
Position of Counsel for Mr. Zacher
5 Counsel for Mr. Zacher submits that the credibility of the witnesses applies to all of the issues
at trial. Therefore, Mr. Zacher must be acquitted if the court has a reasonable doubt regarding
whether or not there was consent to the breast massage. If the Court finds that Ms. A. did not
consent to the breast massage, then the Court must ask itself, within all the circumstances of the
case, did Mr. Zacher have an honest but mistaken belief in consent. If the Court concludes that he
did have an honest but mistaken belief in consent, then he should be acquitted of the charge.
6 Counsel further submits that if the Court finds that Mr. Zacher did not have consent and did not
have an honest but mistaken belief in consent, then the Court must find Mr. Zacher guilty of an
assault simpliciter; a common assault. If Mr. Zacher is found guilty of an assault simpliciter, the
Court must then decide if the assault is of a sexual nature. If the Court concludes that the assault is
of a sexual nature, then and only then, can the Court find that Mr. Zacher is guilty of a sexual
assault.
7 Counsel for Mr. Zacher submits that the evidence of Ms. A. differs from the evidence of Mr.
Zacher in significant areas, including whether verbal consent to the massage of her chest was given,
whether Ms. A. exposed her breasts to Mr. Zacher, whether Mr. Zacher regularly asked Ms. A. if
she was comfortable while he was massaging her breasts, who picked the date of the second
massage appointment, and the particulars of the discussion during the second massage as it relates
to Mr. Zacher's wife and as it relates to Ms. A.'s breasts.
8 Counsel for Mr. Zacher provided written submissions that referred to the relevant provisions of
the Criminal Code and case law, most notably R.v.W.(D.), [1991] 1 S.C.R. 742, R.v.Ewanchuk,
[1999] 1 S.C.R. 330 and R.v.Chase, [1987] 2 S.C.R. 293. In addition he provided copies of R. v.
Beddard, 2002 CarswellOnt 5954 (Ont. Court of Justice), reversed on appeal, [2004] O.J. No. 3892,
and R.v.Lake (2005), 203 C.C.C. (3d) 316 (N.S.C.A.).
Position of the Crown
9 Crown counsel concedes Ms. A. consented to the touching of her chest, but submits she did not
consent to the touching of her breasts at any time. Alternatively, the Crown argues that if consent
was given during the course of the breast massage, it was obtained after the initial touching as a
result of fear or fraud. The Crown also submits that if Mr. Zacher had an honest belief in Ms. A.'s
initial or ongoing consent, he was reckless and wilfully blind, and failed to take reasonable steps, in
the circumstances known to him at the time, to ascertain that Ms. A. was consenting.
10 As to credibility, the Crown submits that the evidence of Ms. A. should be accepted. The
Crown also submits that even based upon the evidence of Mr. Zacher alone, he was reckless and
wilfully blind and failed to take reasonable steps to ascertain consent.
Presumption of Innocence - Reasonable Doubt
11 It is a fundamental principle in Canadian law that everyone is presumed innocent until proven
guilty. The obligation is upon the Crown to prove all of the elements of an offence beyond a
reasonable doubt and only then can a conviction be founded.
12 In the case of R. v. Lifchus [1997] 3 S.C.R. 320, the Supreme Court of Canada had occasion to
consider the instructions to be given to a jury on the meaning of the expression "proof beyond a
reasonable doubt". The Court confirmed that an explanation of the meaning of "proof beyond a
reasonable doubt" is an essential element of the instructions that must be given to a jury. The Court
then went onto consider what should be avoided and what should be included in such an
explanation. The Court summarized its findings in paragraphs 36 and 37 of its decision and then
provided a "suggested form" of instructions as it relates to the standard of proof in a criminal trial.
13 Although there was no jury present in the case at bar, it is important for the participants in a
criminal trial process, and for the Court, to clearly articulate what is meant by "proof beyond a
reasonable doubt". It is for that reason that I repeat the suggested form of instructions:

The accused enters these proceedings presumed to be innocent. That presumption of


innocence remains throughout the case until such time as the Crown has on the
evidence put before you satisfied you beyond a reasonable doubt that the accused
is guilty.

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

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

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

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

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

In short, if based upon the evidence before the Court, you are sure that the accused
committed the offence you should convict since this demonstrates that you are
satisfied of his guilt beyond a reasonable doubt. (Cory J. para. 39)
14 In a subsequent decision Justice Iacobucci said:

In my view, an effective way to define the reasonable doubt standard for a jury is to
explain that it falls much closer to absolute certainty than to proof on a balance of
probabilities.
(R. v. Star [2000] 2 S.C.R. 144)
Credibility
15 The Court often hears conflicting evidence on material matters. When this happens it must
assess the credibility of the witnesses who have testified to this conflicting evidence.
16 It is an error in law in cases of contradictory evidence to simply weigh the evidence of the
accused against the evidence of the complainant. The Court must weigh all of the evidence and may
reject or accept some or all of the witness's testimony after having taken into account a multitude of
factors, including but not limited to, appearance or demeanour, ability to perceive, ability to recall,
motivation, probability or plausibility, and internal or external consistency.
17 In a case where the accused testifies, the Supreme Court of Canada proposed a model for
instructions that a trial judge should present to a jury or that he should present to himself if there is
no jury:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in
reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask
yourself whether, on the basis of the evidence which you do accept, you are
convinced beyond a reasonable doubt by that evidence of the guilt of the
accused. (R.v.W.(D.), [1991] 1 S.C.R. 742 para.28)
18 The W.(D.) model was not intended to be a precise formulation to be used at all times or to
achieve a level of sanctity or immutable perfection. The main point is that the burden never shifts
from the Crown to prove every element of the offence beyond a reasonable doubt and that the lack
of credibility on the part of the accused does not equate to proof of his or her guilt beyond a
reasonable doubt. (R.v.S.(J.H.) [2008] 2 S.C.R. 152)
Analysis
19 The seminal case on sexual assault is the Supreme Court of Canada decision in R.v.Ewanchuk.
In that case Justice Major described the components of a sexual assault.
The Components of Sexual Assault
20 A conviction for sexual assault requires proof beyond a reasonable doubt that the accused
committed the actus reus and that he had the necessary mens rea. The actus reus of assault is
unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless or
wilfully blind towards a lack of consent, either by words or actions, from the person being touched.
The actus reus of sexual assault is established by the proof of three elements:

1. touching,
2. the sexual nature of the contact, and
3. the absence of consent.
21 The first two elements are objective. With respect to touching, it is sufficient for the Crown to
prove that the accused's actions were voluntary. The Crown need not prove that the accused had any
mens rea with respect to the sexual nature of his or her behaviour.
22 However, the third element, consent, is subjective and is determined by reference to the
complainant's subjective internal state of mind towards the touching at the time it occurred (R. v.
Ewanchuk, para. 23-26). The Crown must prove beyond a reasonable doubt the absence of consent.
Often the complainant's testimony is the only source of direct evidence as to her state of mind.
Credibility must however, still be assessed in light of all of the evidence. It is open to the accused,
as is the case here, to claim that the complainant's words and actions, before, during or after the
incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual
touching to take place. The complainant's statement that she did not consent is a matter of
credibility to be weighed in light of all of 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 (R. v. Ewanchuk, para. 26-30).
23 It is also important in considering the evidence that there is no such thing as "implied
consent". The trier of fact may only come to one of two conclusions: the complainant either
consented or did not. There is no third option. 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. (R. v.
Ewanchuk, para. 31).
24 As sexual assault is a crime of general intent, the Crown need only prove the accused intended
to touch the complainant. However, the common law recognizes a defence of mistake of fact, and
an accused will be acquitted if he or she honestly but mistakenly believed they had consent to touch
the complainant. (R.v.Ewanchuk, paras. 41-42)
25 Even if a Court finds the accused had an honest but mistaken belief in consent, this will not
operate as a defence if the accused was reckless or wilfully blind as to consent, or, did not take
reasonable steps, in the circumstances known to the accused, to ascertain consent (s.273.2 of the
Criminal Code).
26 Considering the evidence in connection with all of the issues raised in this case, I have noted
that in much of Mr. Zacher's testimony he gave his evidence clearly, directly, consistently and
plausibly. There were however a number of occasions when he appeared reticent, evasive,
argumentative and gave evidence that was inconsistent with evidence he previously gave under
oath. He also displayed a tendency to exaggerate and overstate. I will provide examples of this in
my analysis which follows.
27 In considering the evidence of Ms. A., for the most part she gave her evidence clearly,
directly, consistently and plausibly. When she was unable to recall the events, she clearly stated so.
On one occasion where her evidence was inconsistent with evidence she previously gave under
oath, she readily admitted that her previous evidence should be considered correct as it was given
closer in time to the events in question.
Issue #1 - Did Ms. A. consent to the initial touching of her breasts?
28 Consent means the voluntary agreement of the complainant to engage in the sexual activity in
question (s.273.1(1) of the Criminal Code). Ms. A. testified that she did not consent at any time to
the touching of her breasts. Counsel for Mr. Zacher says this is not credible and that I should either
disbelieve her or I should have a reasonable doubt as to whether or not there was consent. Counsel
submits there are five areas where the evidence of Mr. Zacher conflicts with the evidence of Ms. A.:

1. Mr. Zacher testified that Ms. A. gave him verbal consent to massage her
"chest" and she testified that she did not recall if she did so.
2. Mr. Zacher testified that Ms. A. lowered the sheet which was covering her
body, thereby exposing her breasts to Mr. Zacher. Ms. A. gave evidence at
this trial that was different than the evidence given at a previous
proceeding with respect to where her hands were in relation to the sheet
and her breasts, and she was not able to explain at this trial how the sheet
was removed.
3. Mr. Zacher testified that "every ten seconds" during the breast massage, he
checked with her to see if she was okay. Ms. A. had some recollection of
being asked whether she was okay but it was not clear or concise and was
affected by her evidence that she "zoned out".
4. There is a discrepancy in the evidence between Mr. Zacher and Ms. A. as
to who picked the date for the second massage.
5. There is discrepancy in the evidence as to what conversation occurred
during Mr. Zacher's second massage of Ms. A., relative to Mr. Zacher's
wife and Ms. A.'s breasts.
29 I will now consider each of these areas of evidence as noted by counsel for Mr. Zacher.

1. Mr. Zacher testified that Ms. A. gave him verbal consent to massage
her "chest" and that she does not recall if she did so.

30 Mr. Zacher testified that he received a massage from Ms. A. on June 25th, 2005 and that Ms.
A. booked an appointment to see him for a massage on July 6th, 2005. She related the problems she
was having, advised him that she had an accident a few years prior, and stated that she had chronic
headaches, upper back pain and neck pain. She said that her arms and hands were sore as a result of
being a massage therapist. Mr. Zacher then exited the massage room to permit her to undress. When
he returned she was laying face down on the massage table with a sheet pulled over her body, naked
from the waist up. Mr. Zacher recalled that her pants remained on. Ms. A. was not sure but believed
only her panties remained on. He dimmed the lights, turned on music, obtained his massage oil,
pulled the sheet down from the top of her back, rolled it into her pants and proceeded to massage
her back. He massaged her back, shoulders and neck. He did what he described as deep muscle
work because her back was tense and tight. Approximately 45 minutes passed and he asked her to
flip over, and she did, onto her back. He then positioned his chair at the head of the table and started
to massage her traps and her neck. He asked if she wanted her chest massaged. She indicated yes,
that her pecs did not receive enough attention, so he proceeded to massage her upper chest. Mr.
Zacher then describes that as he was doing that, she pulled her hands down, which were crossed on
her chest, and along with it came the sheet. This exposed her breasts to him, which indicated to him
that she wanted her breasts massaged. He then started massaging down the midline of her chest on
her sternum, down underneath the breasts, cupping the breasts and pulling it towards and over the
nipples. He further testified that the breast massage lasted approximately five minutes; he then
finished by massaging her head and neck, which lasted another five to ten minutes.
31 Ms. A. testified that Mr. Zacher started massaging her breasts without warning, but conceded
in cross-examination that she could not recall him asking her if she wanted her chest massaged. No
one testified nor are they suggesting that Mr. Zacher specifically asked whether she wanted her
"breasts" massaged.
32 I accept Mr. Zacher's testimony as related above but in my mind there is no real conflict. He
says that he asked Ms. A. if she wanted a chest massage and she says she cannot recall; she does
acknowledge and recall that he was massaging the upper part of her chest, but that it was the
touching of her breasts that came without warning. In any event, I accept Mr. Zacher's evidence and
his description of events that led up to the touching of her breasts.
2. The lowering of the sheet.
33 Counsel for Mr. Zacher further submits that there is a conflict in the evidence as to how the
sheet was lowered, thereby exposing Ms. A.'s breasts.
34 In my review of the evidence Mr. Zacher did not say that Ms. A. pulled the sheet down or that
it came down before he began any form of chest massage. I will quote from the transcript directly:
(p.114, ll.12-28 transcript)

Q. Okay, go ahead from there.


A. I was massaging her back, doing some deep muscle work with her because her
back was so tense and tight, along with her arms, approximately 45 minutes had
passed. I asked her if she could flip over, I dimmed my light because when you -
when you're laying down like that and you're getting a massage, you flip over
and if you have a bright light on, it's obviously going to hurt your eyes, so I
dimmed the light. I had her flip over onto her back. I pulled my chair, I have a
chair that I would sit at the head of the table with, and started massaging her - her
traps and her neck, and asked her if she wanted her chest massaged.

She said, yes, sure, the pecs don't receive enough attention, so I proceeded to
massage her upper chest. As - as - as I was doing that, she had her hands
crossed her chest. After I asked her if she wanted her chest massaged, she
pulled her hands down, and along with it the sheet and exposed her breasts
to me. After - after she did that, that indicated to me that she wanted her
breasts massaged. I started massaging down the midline of her chest on her
sternum, down underneath the breast, cupping the breast and pulling it
towards the armpits.
35 His testimony here is consistent with the version he related in cross-examination. In cross-
examination he acknowledged that he could not remember if she pulled the sheet down, and did not
know whether the sheet came down accidentally or by intention. (p.134, ll.8-24 transcript)

Q. So, she - did she actually physically grab the sheet with her hands and pull it
down?
A. I don't - I don't remember if she pulled them down, but I remember her taking her
hands as if there was a sheet over top of me right now, and slid them along her
body, and laid her hands on her abdomen, therefore pulling the sheet with her
hands.
Q. So, you don't know whether or not the sheet moved down accidentally or if she
pulled it down?
A. I think she intentionally pulled the sheet down.
Q. Do you know?
A. Do I know?
Q. Yeah.
A. No, I don't know.
Q. You didn't ask?
A. I didn't ask.
36 Counsel for Mr. Zacher says Ms. A. lowered the sheet. This interpretation is not borne out by
Mr. Zacher's evidence and is not consistent with the evidence of Ms. A., who testified that she did
not move the sheet, but that it did somehow move and no longer covered her breasts. In that regard
then, I find the evidence of Mr. Zacher and Ms. A. to be consistent. Mr. Zacher cannot say with any
certainty whether the sheet was intentionally moved down or whether it simply came down at some
point in the massage as a result of her moving her hands down.
3. Asking if she was "okay" during the breast massage.
37 Mr. Zacher's counsel submits that Mr. Zacher's evidence that he asked Ms. A. every ten
seconds during the breast massage if she was okay, and that he received an affirmative response, is
an indication that Ms. A. cannot be believed on the issue of consent.
38 I have examined Mr. Zacher's testimony on this point as well. I accept that Mr. Zacher made
some inquiries of Ms. A. during the period of time that the breast massage occurred. I do not,
however, accept that he did this every "ten seconds" and that her response was such to leave me
with a doubt as to whether she was consenting. I find Mr. Zacher's testimony to be unrealistic and
exaggerated. Mr. Zacher testified the breast massage itself took about five minutes and that the
balance of the massage after the breast massage took an additional five to ten minutes. This would
mean, if Mr. Zacher is believed, that he asked Ms. A. whether she was okay on 30 occasions while
he was massaging her breasts. If his testimony was intended to mean that he asked these questions
during the entire time that the massage lasted, after the breast massage portion commenced, that
would mean that he asked her 60 to 90 times.
39 In cross-examination Mr. Zacher acknowledged that during the course of the massage of her
breasts, Ms. A's shoulders came up. He believed this was because her chest was tight, so he asked
her to relax "a couple of times".
40 I accept that Mr. Zacher noticed that Ms. A. became tense after he began massaging her
breasts and that this was manifested by her raising her shoulders and tensing them while she lay on
her back. He attributed this to her medical complaints, not to the massage itself, and not to any
reluctance or unwillingness to have her breasts massaged. He responded to this sign of tension by
asking her on a few occasions whether she was okay, to which she replied in a manner that Mr.
Zacher could reasonably consider was in the affirmative.
41 Ms. A.'s evidence did not really conflict with that of Mr. Zacher's insofar as she confirmed
that he did ask her whether she was okay and further asked her to relax and that she replied,
"Whatever", "Sure" and "Okay". She made these responses having been taken by surprise and
while, in her words, she was "zoned out" and in a "zombie state" because of what was happening to
her at the time.
4. The date of the next appointment.
42 Counsel for Mr. Zacher submits that there is discrepancy in the testimony of Mr. Zacher and
Ms. A. regarding the selection of the date for the next appointment and that as a result, Ms. A.'s
credibility is challenged. Mr. Zacher testified that after the first massage, there was discussion and
he asked whether she wanted to book another appointment. When Mr. Zacher was asked what her
response was, he simply indicated that "she had booked a massage approximately a week later",
then confirmed that she picked the time and day according to their schedules. (p.115, ll.35-40 and
p.116, ll.1-6 transcript)
A. ... I said well, in that case, I said, did you want to book another appointment, like
we had discussed in the massage.
Q. And what was her response?
A. She had booked a massage approximately a week later.
Q. Okay, And can you be more specific about that, who booked the massage, who
wrote it in the appointment book?
A. I - I myself, I wrote it in the - in the appointment book.
Q. Who picked the day?
A. She picked the time and the day according to our schedules and if it would work.
43 Ms. A. testified that Mr. Zacher suggested that she needed a follow-up treatment and that she
indicated, "Okay", and that he suggested Wednesday of the following week. Both Mr. Zacher and
Ms. A. agreed that it was Mr. Zacher who wrote it in the appointment book.
44 Unlike counsel for Mr. Zacher, I find their evidence in this regard to be more similar than
inconsistent. It was clear the two of them had a discussion and that they agreed that a second
appointment would be booked for the following week. Any apparent inconsistency in the evidence
is not, in my mind, in any way determinative of whether or not Ms. A. consented to a breast
massage.
5. The second massage.
45 Ms. A. agreed that she returned for a second massage. It is submitted that her attendance for a
second massage is consistent with Ms. A. having consented to a breast massage on the first
occasion. I do not accept this. Ms. A. explained why she returned the second time and I accept her
explanation. After the first massage she felt ashamed, embarrassed and humiliated. She was not sure
of Mr. Zacher's intentions and whether she should return. She was confused and although deep
down she knew that his touching of her breasts was inappropriate and had no real benefit, she
returned to avoid the awkwardness of cancelling, to try and keep things normal and to clarify her
confusion.
46 It is also submitted that the discrepancy in conversation at the second massage regarding Mr.
Zacher's wife and Ms. A.'s breasts affects Ms. A.'s credibility and thus, whether or not she
consented to the breast massage. Both Mr. Zacher and Ms. A. testified that there was a discussion
between them that included Mr. Zacher asking Ms. A. not to tell his wife about the massage and
further a brief discussion about Ms. A.'s breasts. Mr. Zacher's counsel is correct when he submits
that Ms. A.'s evidence in this regard is not particularly helpful. Her memory of the words used and
the context in which they were used is not clear, and her presumptions regarding Mr. Zacher's
intention in speaking about his wife and Ms. A.'s breasts is speculative, and not of assistance in
determining what was actually said by whom and when. Mr. Zacher's evidence in this regard is not
much better. Although I have some concerns with both Mr. Zacher's and Ms. A.'s ability to recall
the details of the conversation during the second massage I do not find, as suggested by counsel,
that this is a credibility issue that goes to whether or not there was consent during the first massage.
Conclusion on Issue #1
47 Taking into account that the issue of consent is subjective and determined by reference to the
complainant's subjective internal state of mind towards the touching at the time it occurred and
taking into account all of the evidence, I have concluded that Ms. A. did not consent to the touching
of her breasts. After carefully considering those areas of the evidence that counsel for Mr. Zacher
submits, should affect my assessment of the credibility of Ms. A. and thus my findings with respect
to consent I have concluded that they do not. As outlined above, I found that there is no real
conflict, the conflict is trivial or at least does not bear on the issue of consent. Even though it is not
relevant in determining whether Ms. A. subjectively consented, I have considered why Mr. Zacher
presumed there was consent and am not persuaded that it in any way affects my acceptance of Ms.
A.'s testimony in this regard. Mr. Zacher had testified that he made the presumption that she was
consenting to the massage of her breasts for the following reasons:

1. He had asked her if she wanted a chest massage and in his mind the breasts form
part of the chest.
2. She was a massage therapist and as such he believed she would understand that
the breasts include the chest.
3. The sheet covering her came down, exposing her breasts and he took this to be an
invitation to massage her breasts.
This is what he believed in his mind. It does not however affect the subjective analysis of what she
considered in her mind.
48 In summary, I have accepted Ms. A.'s testimony that she did not consent.
Issue #2 - Did Ms. A. consent to the touching of her breasts during the breast massage?
49 Counsel for Mr. Zacher submits that even if there was no consent to the initial touching, there
is reasonable doubt as to whether or not Ms. A. consented to the touching of her breasts during the
course of the massage.
50 The Crown submits that there was no consent to the initial touching of Ms. A.'s breasts and
any consent that may have been obtained from her during the course of the touching was a result of
fear and was perpetrated by Mr. Zacher's fraud. The Crown submits that it was a very clever ruse
that Mr. Zacher perpetrated on Ms. A.. The ruse was calculated and evidenced particularly by Mr.
Zacher specifically asking if she wanted a "chest" massage, which she agreed to, but instead gave
her a "breast massage", which she did not agree to, thereby placing her in an untenable position. The
Crown relies on s.265(3)(b) and (c) of the Criminal Code to vitiate any consent that may have been
given.
51 In the case at bar, I have concluded that there was no consent to the initial touching and I
further conclude that there was no consent to the continuation of the touching of Ms. A.'s breasts. It
must be remembered that the absence of consent is subjective and determined by reference to the
complainant's subjective internal state of mind towards the touching at the time it occurred (R. v.
Ewanchuk, para. 26). Section 273.1(1) of the Criminal Code provides that consent is defined to
mean the voluntary agreement of the complainant to engage in the sexual activity in question.
Consent must be voluntary and it must be freely given. I accept that Ms. A. did not consent to the
initial touching or the continuation of the touching of her breasts and as a result there is no need to
consider s.265(3)(b) and (c) of the Criminal Code. I will however provide the following assessment
for the sake of completeness.
52 Section 265(3)(b) of the Criminal Code vitiates consent where the complainant submits or
does not resist by reason of threats or fear of the application of force. It is not necessary that the
complainant's fear be reasonable or that it be communicated to the accused in order for consent to
be vitiated. While the plausibility of the alleged fear and any overt expressions of it are relevant in
assessing the credibility of the complainant's claim that she consented out of fear, the approach is
still subjective (R. v. Ewanchuk, para. 39).
53 In the case at bar, there was really no evidence that Ms. A. was fearful of the application of
force. It is true that she was in a vulnerable position. She was on her back, only partially dressed,
being touched by a male person whom she knew only as a result of a work association and for a
relatively short period of time, and that he was attending upon her in the capacity of a medical care
giver. Although she testified that she had "zoned out" and was in a "zombie state", she at no time
testified that she was fearful.
54 Section 265(3)(c) of the Criminal Code vitiates consent when it is obtained where the
complainant submits or does not resist by reason of fraud. The Supreme Court of Canada in R. v.
Cuerrier [1998] 2 S.C.R. 371 considered this section in the context an accused charged with two
counts of aggravated assault pursuant to s.260 of the Criminal Code. The accused had been
explicitly instructed by a public health nurse to inform all prospective sexual partners that he was
HIV positive and to use condoms every time he engaged in sexual intercourse. He had unprotected
sexual relations with two complainants without informing them that he was HIV positive. The Court
held that it was no longer necessary when examining whether consent in assault or sexual assault
cases was vitiated by fraud under s.265(3)(c) Criminal Code to consider whether the fraud is
related to "the nature and quality of the act". It was held that the repeal in 1983 of statutory
language imposing this requirement and its replacement by a reference simply to "fraud" was an
indication that Parliament's intention was to provide a more flexible concept of fraud in assault and
sexual assault cases. The Court stated that an approach to the concept of fraud in s.265(3)(c)
Criminal Code that includes any deceit inducing consent to contact would bring within the sexual
assault provisions of the Criminal Code behaviour which lacks the reprehensible character of
criminal acts, and would trivialize the criminal process by leading to a proliferation of petty
prosecutions instituted without judicial guidelines or directions. It held that some limitations to the
concept of fraud in that section are necessary. Accordingly, it held that the fraud required to vitiate
consent for sexual assault must carry with it the risk of serious harm. There must have been
dishonesty, which can include non-disclosure of important facts, and deprivation or risk of
deprivation. The dishonest action or behaviour must be related to the obtaining of consent to
engage in sexual intercourse. The dishonest act must consist of either deliberate deceit or non-
disclosure. The nature and extent of the duty to disclose, if any, will always have to be considered in
the context of the particular facts presented to establish that the dishonesty results in deprivation.
The Crown needs to prove that the dishonest act had the effect of exposing the person consenting to
a significant risk of serious bodily harm.
55 R. v. Cuerrier was applied in R. v. P.(N.M.) (2000) 146 C.C.C. (3d) 167 (N.S.C.A.), leave to
appeal to S.C.C. refused, [2000] S.C.C.A. No. 252. In this case the accused was charged with
communicating for the purpose of engaging in prostitution. She entered an undercover police
officer's vehicle and asked, "Are you a cop?". He said he was not. The accused then invited him to
touch her pubic hair, which he did. After some discussion about the price of various sex acts, the
accused was arrested and charged. The accused argued that the officer's conduct amounted to a
sexual assault so that the proceedings against her were an abuse of process. The Court rejected this
argument both on the traditional ground that there was no misrepresentation as to the nature and
quality of the act and on the Cuerrier ground that the type of harm which the accused was exposed
to, was not the serious harm envisioned by the majority in Cuerrier (at page 180).
56 In the case at bar, I am unable to conclude that Mr. Zacher acted dishonestly.
57 Accordingly, I would find that neither s. 265(3)(b) or (c) of the Criminal Code are applicable
to the case at bar.
58 I do not accept however, that the Court can only look to s.265(3) of the Criminal Code when
deciding the issue of consent. In my assessment, s.265(3) Criminal Code is not exhaustive of the
factors vitiating consent for the purposes of s.265 of the Criminal Code.
59 I am aware of the decision of Ontario Court of Appeal in R. v. Guerrero (1988), 64 C.R. (3d)
65 (Ont. C.A.) wherein the Court held that s.265(3) was exhaustive. I further note that in s.273.1(3)
of the Criminal Code it states that nothing in ss. (2) of the Criminal Code shall be construed as
limiting the circumstances in which no consent is obtained and that s.265 of the Criminal Code
contains no similar provision.
60 I am not aware of any Alberta Appellate Court authority on this issue but am persuaded that
the better view is as found in the approach taken by the British Columbia Court of Appeal in R. v.
Caskenette (1993), 80 C.C.C. (3d) 439 (B.C.C.A.) and by the Newfoundland Court of Appeal in R.
v. Davis (1998), 159 Nfld. & P.E.I.R. 273. Both of these cases expressly reject the opinion
expressed by the Ontario Court of Appeal in R. v. Guerrero and in doing so, make reference to Mr.
Justice Gonthier in R. v. Jobidon (1991), 66 C.C.C. (3d) 454 (S.C.C.) where he stated:

With the offence of assault, that kind of balancing is a functioning the courts are well
suited to perform. They will continue to be faced with real situations in which
complicated actions and the motivations interact, as they have in the past. I do
not accept the argument that by failing to enact a list of objects or forms of
conduct to which one could not validly consent, Parliament intended to eliminate
their role in the offence of assault and to rely only on the four factors specified in
s.265(3). Such a major departure from well established policy calls for more than
mere silence, particularly as such a list would have been unduly difficult and
impractical to prescribe and was unnecessary given their existing entrenchment
in the common law. The common law is the register of the balancing function of
the courts ... a register Parliament has authorized the courts to administer in
respect of policy-based limited on the role and scope of consent in s.265 of the
Code.
61 In light of my conclusion that Ms. A. did not consent to the touching of her breasts, before or
during the massage, I will now consider the remaining issues.
Issue #3 - Did Mr. Zacher have an honest but mistaken belief in consent, and if so did his
belief in consent arise from his recklessness or wilful blindness within the meaning of
s.273.2(a)(ii) Criminal Code?
Honest But Mistaken Belief
62 The common law recognizes a defence of mistake of fact which removes culpability for those
who honestly but mistakenly believed that they had consent to touch the complainant (R. v.
Ewanchuk, para. 42). It is more accurately a negation of guilty intention than an affirmation of a
positive defence. As such it does not impose any burden of proof upon the accused and although it
is not necessary for the accused to testify in order to raise the issue, as a practical matter, the
defence usually arises from evidence called by the accused. It may however, arise from any of the
evidence before the Court including the testimony of the complainant (R. v. Ewanchuk, para. 44). In
order to conclude that the accused had an honest, but mistaken belief in consent, 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 (R.v.Ewanchuk, para. 46).
63 As previously related, Mr. Zacher testified that he believed she was consenting to his touching
of her breasts for the following reasons:

1. He had asked her if she wanted a chest massage, and in his mind the breasts form
part of the chest.
2. She was a massage therapist and as such he believed she would understand that
the breasts include the chest.
3. The sheet covering her came down exposing her breasts and he took that as an
indication that she wanted him to massage her breasts.
64 As I previously indicated that I have some difficulty with portions of Mr. Zacher's evidence,
but I am not able to reject his evidence in this regard. Accordingly, I accept that Mr. Zacher
believed that Ms. A. communicated consent to engage in the breast massage based upon her
responses to his questions and comments and based upon his interpretation of the sheet coming
down to expose her breasts.
Recklessness or Wilful Blindness
65 Section 273.2 of the Criminal Code provides that it is not a defence to a charge of sexual
assault that the accused believed the complainant consented where the accused's belief arose from
the accused's recklessness or wilful blindness. This involves two separate inquiries.
66 While recklessness involves knowledge of a danger or risk and persistence in a course
conduct, wilful blindness arises where a person who has become aware of a need for some inquiry,
declines to do so. Amos C. Stewart in Sexual Offences in Canadian Law, 2006 (3:600.20) puts it
this way:

Recklessness and wilful blindness are subjective mental states falling short of actual
knowledge. To establish recklessness as to consent, the Crown must show that
the accused knew there was a possibility that the complainant did not consent,
but proceeded without regard to that possibility. Recklessness includes awareness
of the possibility of non-consent coupled with indifference to consent.

Wilful blindness is somewhat more complex than knowledge or recklessness. There is a


sense in which wilful blindness is a "higher" or more subjective fault element
than recklessness in that it is often regarded as a substitute for knowledge, yet
wilful blindness has a kinship with objective forms of fault because it speaks to
what the accused ought to have done. In R. v. Sansregret [1985] 1 S.C.R. 570,
McIntyre J. drew the distinction between recklessness and wilful blindness as
follows:
Wilful blindness is distinct from recklessness because, while recklessness
involves knowledge of a danger of a risk and persistence in a course of
conduct which creates a risk that the prohibited result will occur. Wilful
blindness arises where a person who has become aware of a need for some
inquiry declines to make the inquiry because he does not wish to know the
truth. He would refer to remain ignorant. The culpability and recklessness
is justified by consciousness of the risk and by proceeding in the face of it,
while in wilful blindness, it is justified by the accused's fault and
deliberately failing to inquire when he knows there is a reason for inquiry.

Thus, an accused who honestly believes in consent cannot be said to be reckless,


because the honest belief makes the risk of non-consent invisible to him,
but he might be said to be wilfully blind if there are some facts indicating
the need for inquiry and he deliberately chose not to inquire.
67 The Crown submits that even on Mr. Zacher's evidence alone, it can be concluded that he was
reckless and wilfully blind, particularly given his evidence about why he asked if she wanted her
chest massaged as opposed to her breasts massaged. In cross-examination, counsel for the Crown
asked the following questions and received the following answers:

Q. Is it possible that ... that you didn't ask D. about massaging her breasts
specifically by using that word, because you were afraid she might say no?
A. No.
Q. No?
A. No.
(page 140, ll.23-28 transcript)
68 Counsel for the Crown then put to Mr. Zacher his evidence which was given under oath at a
prior proceeding, a portion of which read as follows:

Q. Maybe you just didn't ... like, maybe you were just afraid of the answer you
might get if you indicated you are going to be touching the breasts and it might
be a no, is that possible?
A. I suppose that's possible, yes.
(page 141, ll.37-40, transcript)
69 Mr. Zacher acknowledged being asked those questions and giving those answers, confirmed
that it was truthful and answered in the affirmative when asked whether he stood by that answer. In
attempting to explain his previous answer, he stated as follows:

Q. Okay. So, I ask you again, is it possible that when you were asking D. about
whether or not you could touch her chest, you were afraid that if you used the
breast, that she might just say no?
A. To answer that question, and to reiterate what I said here and explain what I had
said here, I suppose it's possible, yes, I'm an optimist and I'd like to think
anything is possible, however, in the circumstances, that is absolutely not
possible, I would never do that.
(page 142, ll.5-11, transcript)
70 I note that Crown counsel in his question used phrases such as "is it possible" and, "maybe
you just did" which may admit to a possibility of an intention or state of mind, but does not
necessarily speak to Mr. Zacher's actual state of mind at the time. In light of the specific denial by
Mr. Zacher in the case of this complainant and the explanation he gave, however vague, regarding
his answer in the previous proceeding, I am left with some doubt as to whether he in fact was
reckless or wilfully blind and it is therefore necessary to consider s.273.2(b) of the Criminal Code.
71 Bearing in mind that I am not interested in what his general practice was or what might have
happened, I am interested in knowing the state of his mind at the time. In light of the specific denial
in the case of this complainant, I am left with some doubt as to whether he in fact was reckless or
wilfully blind.
Issue #4 - Did Mr. Zacher take reasonable steps, in the circumstances known to him at the
time, to ascertain that the complainant was consenting?
72 Section 273.2(b) of the Criminal Code provides that it is not a defence to a charge of sexual
assault that the accused believed the complainant consented 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(b) Criminal Code).
73 This provision has been regarded as introducing an objective component into the mental
element of the offence. Don Stewart in his article entitled "The Pendulum Has Been Pushed Too
Far" (1993) 42 U.N.B.L.J. 349 states that s.273.2(b) of the Criminal Code was the most significant
change in the passage of Bill C-49 and expressly reverses the substantive ruling in R. v. Pappajohn,
[1980] 2 S.C.R. 120, that an honest belief in consent will excuse even if it was unreasonable (Page
352).
74 A similar analysis was conducting by Rosemary Cairns-Way in her article "Bill C-49 and the
Politics of Constitutionalized Fault" (1993) 42 U.N.B.L.J. 325, where she articulates that s.273.2(b)
of the Criminal Code relocates the culpability in sexual assault cases. It explicitly shifts the focus in
a limited number of cases away from the self conscious wrongdoing of the accused and places the
focus on the culpability inherent in the accused's failure to take reasonable steps to determine if the
act he is about to engage in is in fact mutual and consensual. She states that the provision creates a
form of objective liability in that the accused is held up to a standard of reasonable conduct which is
assessed on the basis of the circumstances known to the accused at the time of the assault (Pages
329-30).
75 John McInnes and Christine Boyle, in their article "Judging Sexual Assault Law Against the
Standard of Equality" (1995) 29 U.B.C.L. Rev. 341, suggests that the "reasonable steps"
requirement in s.273.2(b) of the Criminal Code effectively imposes a positive duty on those who
undertake the activity of sexual relations to be reasonable in the circumstances known to them in
ensuring that their partner consents. They describe the standard as being "quasi-objective" because
the ostensibly objective standard of reasonableness with respect to the steps taken, will be colored
by whatever "circumstances known to the accused" is interpreted to mean (Pages 361-62).
76 There has been some judicial analysis of this provision although I am not aware of any
appellate authority in Alberta.
77 In R. v. G.(R.) (1994), 38 C.R. (4th) 123 (B.C.C.A.), the British Columbia Court of Appeal
considered in part the applicability of s.273.2(b) of the Criminal Code. In a case where the
complainant was alleged to have committed a sexual assault against his wife from whom he was
then separated, the Court of Appeal held that s.273.2(b) Criminal Code creates a proportionate
relationship between what will be required in the way of reasonable steps by an accused to ascertain
that the complainant was consenting and "the circumstances known to him" at the time. The Appeal
recognized that the circumstances will be as many and as varied as the cases in which the issue can
arise (para. 29).
78 In R. v. Redcliff , [1994] O.J. No. 2178 (Ont. Court, Gen. Div.), reversed [1995] O.J. No. 942
(Ont. C.A.) stated that s.273.2(b) of the Criminal Code requires the Court to apply a quasi-objective
test to the situation:

First, the circumstances known to the accused must be ascertained. Then, the issue
which arises is, if a reasonable man was aware of the same circumstances, would
he take further steps before proceeding with the sexual activity? If the answer is
yes, and the accused has not taken further steps, then the accused is not entitled
to the defence of honest belief in consent. If the answer is no, or even maybe,
then the accused would not be required to take further steps and the defence will
apply (Page?)
79 In R. v. Esau, [1997] 2 S.C.R. 777, the trial judge refused to put the defence of honest, but
mistaken belief to the jury in a situation where the complainant had been intoxicated when she
engaged in sexual intercourse with the accused, but had no recollection and the accused testified
that by her acts and words he believed that she had consented to sexual intercourse. The accused
was convicted and the Court of Appeal, [1996] N.W.T.J. No. 51, ordered a new trial. The Supreme
Court of Canada confirmed that decision, explaining that where an "air of reality" gives rise to the
defence of apprehended consent the defence must be put to the jury. Section 273.2 of the Criminal
Code was not raised at trial or on appeal, but McLachlin J. (as she was then), in dissent, did make
reference to that provision of the Code. She stated:

Section 273.2 precludes an accused from raising the defence of mistaken belief in
consent if he did not take "reasonable steps, in the circumstances known to the
accused at the time, to ascertain that the complainant was consenting". In this
case, where the complainant was on any view of the evidence, quite drunk, it
would seem reasonable to expect the accused to take steps to ascertain whether
her apparent participation represented actual consent, thus obviating the
possibility of mistake. No such steps were taken. This suggests that under the law
enforced at the time of the alleged offence, the defence could not arise.
80 In R. v. Daigle, [1998] 1 S.C.R. 1220, the Supreme Court of Canada rejected an appeal for the
reasons given by the Quebec Court of Appeal, [1997] J.Q. no 2668, and then added the appellant
could not rely on the defence of honest, but mistaken belief since he had not taken reasonable steps
to ascertain that the victim was consenting but does not explain what reasonable steps could, or
should have been taken.
81 In R. v. Darrach (1998), 122 C.C.C. (3d) 225 (Ont. C.A.), the Ontario Court of Appeal had
occasion to rule on the constitutionality of several provisions in the Criminal Code including
s.273.2(b) of the Criminal Code and held that although the provision introduces an objective
component into the mental element of the offence, there was no infringement of the Charter of
Rights and Freedoms. The Court held that although there was an introduction of an objective
component it was personalized according to the subjective awareness of the accused at the time.
The accused was not under an obligation to determine all the relevant circumstances. The issue is
what he actually knew, not what he ought to have known. In addition, while the provision requires
reasonable steps, it does not require that all reasonable steps be taken, as it did in the first version of
the Bill that resulted in s.273.2 of the Criminal Code and as it does in s.150.1(4) of the Criminal
Code (mistake of age) (paragraph 88 and 89).
82 The Ontario Court of Appeal in R. v. Darrach went on to state that the provision does not
require that a mistaken belief in consent must be reasonable in order to exculpate. The provision
simply provides that a person about to engage in sexual activity take "reasonable steps ... to
ascertain that the complainant was consenting" and proposed that were a person to take reasonable
steps, and nonetheless make an unreasonable mistake about the presence of consent, he or she
would be entitled to ask the trier of fact to acquit on this basis.
83 The Manitoba Court of Appeal in R. v. Malcolm (2000) 147 C.C.C. (3d) 34 (Man.C.A.; leave
to appeal to S.C.C. refused, [2000] S.C.C.A. No. 473) reviewed a case where the accused and her
common-law husband hosted a New Year's party attended by the accused. He and the complainant
exchanged "Happy New Year" greetings which included kissing. The complainant's husband
eventually went to another house party and she went to bed. The accused joined her at some point.
The complainant testified that she awoke to discover that she was engaged in sexual activity and
when she learned it was not her husband, ordered the accused out of the room. The accused testified
that he entered the complainant's room and she pulled him into the bed, fully knowing who he was
and that after a period of fondling she told him to leave and he did. The accused was acquitted at
trial and the matter appealed to the Manitoba Court of Appeal. The Court analyzed the distinction
between s. 273.2(a) (recklessness and wilful blindness) of the Criminal Code and s.273.2(b) of the
Code, reviewed the jurisprudence to date on that section. The Court stated that the issue is whether
the accused is aware of circumstances which would lead a reasonable man to inquire further into the
issue of consent, if the circumstance as known to the accused are such that a reasonable man would
not or might not take further steps to ascertain consent, then the accused will not be required to take
any further steps either (para. 21).
84 In R. v. Cornejo (2003), 181 C.C.C. (3d) 206 (Ont. C.A.), the Crown appealed an acquittal at
trial on the basis that the trial judge erred in leaving the defence of honest but mistaken belief for
the jury to consider when there was no err of reality to such defence. The accused and complainant
were co-workers that had both attended a company golf tournament and had been drinking. After
they had each left the golf tournament Mr. Cornejo called the complainant at home a number of
times. On the third time he asked if he could come over to what he considered to be an affirmative
response. He arrived at her apartment at 1:30 a.m., received no response to his knocking, found the
door unlocked and entered the apartment and found her sleeping on her couch. He said hello and
she woke up asking "What the hell are you doing here?" He then sat beside her on the couch, ran his
fingers through her hair, kissed her on the forehead and on the mouth. He testified that she put her
finger on his mouth and said "No, not on the mouth". He asked why not and she responded
"Because I don't love you". He then began kissing her, removed the blanket and tried to take her
jeans off. He then took her underwear off and tried to position her for intercourse when she said no.
85 The complainant testified that she fell asleep on her couch at home and awoke to find Mr.
Cornejo on top of her, naked and attempting to penetrate her. She was explicit in asserting that she
did not consent to the sexual activity although she did not remember any of the facts that Mr.
Cornejo relied upon and has no memory of him entering the apartment or telephoning her.
86 After quoting s.273.2 of the Criminal Code the Ontario Court of Appeal stated:

The purpose of these provisions is to ensure that there is clarity on the part of the
participants to the consent of the other party of the sexual activity. The legislative
scheme replaces the assumptions traditionally - and inappropriately - associated
with passivity and silence. Someone in Mr. Cornejo's circumstances takes serious
risk by founding an assumption of consent on passivity and non-verbal responses
as justification for assuming that consent exists.
The Court then quoted Professor Kent Roach in Criminal Law, 2nd Ed. (Toronto: Irwin Law, 2000,
at pp. 157 and 158) as follows:

The denial in section 273.2(b) of the mistake of fact unless the accused takes
reasonable steps in the circumstances known to him at the time to ascertain
whether the complainant was consenting to the activity in question combines
subjective and objective fault elements in a novel and creative manner ... The
accused's obligation to take reasonable steps is only based on what he
subjectively knows at the time. On the other hand, section 273.2(b) requires the
accused to act as a reasonable person would in the circumstances by taking
reasonable steps to ascertain whether the complainant was consenting. Much will
depend on the Courts' view of what reasonable steps are necessary to ascertain
consent. Some judges may find that positive steps are required in most, if not all,
situations regardless of the accused's subjective perception of the circumstances.
Others may only require such steps if the complainant has indicated resistance or
lack of consent in some way that is subjectively known to the accused [Emphasis
added].
87 Many of the decisions considering s.273.2 of the Criminal Code involve great degrees of
intoxication by either the accused, the complainant or both and the Courts' analysis regarding
available defences is not separated. For example, R. v. DLTM, 2004 SKPC 39 where the Court
stated:

I find that his purported belief in consent was utterly without foundation and was of the
type barred by Criminal Code s.273.2(a) and (b), since it was the product of his
own intoxication, his wilful blindness and his total failure to take reasonable or
any steps to ascertain that this manifestly grossly intoxicated person was
consenting to sexual activity. For these reasons his claim of honest but mistaken
belief in consent cannot prevail (para. 61).
88 This case at bar is somewhat unique in that both the complainant and the accused were sober,
they were both professional health care providers and as it relates to this issue, have no major
disagreement as to what circumstances were known to Mr. Zacher at the time.
89 In order to determine the reasonableness of Mr. Zacher's conduct, it is necessary to first decide
what circumstances Mr. Zacher knew, and then ask whether a reasonable person aware of the same
circumstances would take further steps before proceeding with the relevant activity. The evidence is
that Mr. Zacher was aware of the following circumstances:

1. Mr. Zacher was a certified massage therapist.


2. Mr. Zacher obtained his formal training of about 2,000 hours of instruction at the
Lethbridge Community College and none of his training was directed towards the
massage of the female breast. In fact, he was taught not to massage beyond the
collar bone.
3. After the completion of his formal training at the Lethbridge Community
College, Mr. Zacher did not take any further formal or structured training
directed towards the provision of breast massages.
4. The reason that he became interested in breast massages is because he had certain
patients who specifically asked him about it. Ms. A. was not one of these
patients.
5. Mr. Zacher then began to inform himself about breast massages by reading books
and articles on the internet and from discussing breast massages with colleagues.
Mr. Zacher acknowledged there was a divergence in the literature as to whether
or not a chest massage included a breast massage and that massage therapists
may define chest massages differently; when some people speak of a chest
massage they are not speaking of the massage of the breast. Mr. Zacher was not
aware on or during the July 6th, 2005 massage, what view Ms. A. took in this
regard.
6. Mr. Zacher is a trained professional who acknowledged the significance of
obtaining clear consent to any form of treatment.
7. Mr. Zacher further acknowledged that a woman's breasts were a personal and
private portion of her body.
8. Mr. Zacher acknowledged that his treatment is based upon the complaints
expressed by his patients and further that Ms. A. in this case had in no way
expressed any difficulty with her breasts or any ailment that would be indicative
of a breast massage.
90 In light of the circumstances what steps did Mr. Zacher take to ascertain whether Ms. A. was
consenting before touching her? The only step he took was to ask her if she wanted a "chest
massage". He then presumed that this was sufficient consent to touch her breasts, including her
nipples, because she too was a massage therapist and must understand that her breasts were
included within her chest and therefore she was consenting to not only a chest, but a breast massage.
He further presumed this because of the movement of the sheet which covered her partially naked
body moved so as to expose her breasts, but conceded he was not sure exactly how it happened.
91 In addition, he took the step of asking her during the course of the massage whether she was
okay; in some way responded in the affirmative.
92 In my opinion, the circumstances known to Mr. Zacher at the time required him to take
reasonable steps to ascertain that consent was given. He did take some steps as outlined above, but
the question remains whether he took reasonable steps. Or to state it another way, if a reasonable
man was aware of the same circumstances, would he have taken further steps before proceeding
with the activity. This raises the question as to what reasonable man; is this any reasonable man? Or
is this a reasonable man in the position of Mr. Zacher? That is to say, with Mr. Zacher's training,
experience, background and with his understanding of the circumstances. Given the combination of
the subjective and objective elements in this section, I am of the opinion that it can only be
determined by considering the reasonable man in the position of the accused. When I consider it in
this fashion, I conclude that Mr. Zacher did not take reasonable steps to ascertain that Ms. A. was
consenting.
93 A certified massage therapist knowing what Mr. Zacher knew about the privacy of a woman's
body, particularly the breasts and nipples, the need to obtain clear and concise consent, the lack of a
relationship between her problems as explained and the treatment as given, his knowledge that there
was a divergence in the opinion held by massage therapists as to whether a chest massage included
a breast massage, the position of vulnerability that patients may find themselves in when only
partially dressed (bearing in mind that even according to Mr. Zacher's testimony he did not ask
about a chest massage when she first attended and while she was fully dressed, but instead waited
until she was on her back and only covered by a sheet), and even given the way in which he
obtained his knowledge of breast massage, the reason for acquiring knowledge (Mr. Zacher said
that he had clients that specifically asked him about breast massage, and that Ms. A. did not. All of
this should have suggested to him that you do not touch a woman's breasts unless you specifically
ask if you can and she says yes.
94 I think it is also important and relevant that the further inquiry would have been a simple and
direct one. It was not as if he was compelled by the force of the circumstances to presume consent
based upon conduct or based upon a combination of words and conduct. It would have been a
simple and reasonable thing for him to simply ask, "Would you like your breasts massaged?"
Issue #5 - Was the touching sexual in nature?
95 The crime of sexual assault is only indirectly defined in the Criminal Code. It is comprised of
an assault within any of the definitions within s.265(1) of the Criminal Code which is committed in
the circumstances of a sexual nature, such that the sexual integrity of the victim is violated.
(R.v.Ewanchuk, para.24) The sexual nature of the assault is determined objectively. As stated by the
Supreme Court of Canada in R. v. Chase:

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?" (R.
v. Chase; [1987] 2 S.C.R. 293 (see para.11))
96 The Crown need not prove that the accused had any mens rea with respect to the sexual nature
of his or her behaviour. (R. v. Ewanchuk, para.25)
97 I am satisfied that the touching in this case was sexual in nature. It involved touching a part of
Ms. A.'s body that is considered to be private and to have a sexual component. The touching itself
involved stroking, cupping of the breasts and touching of the nipples. It was not provided in any
way for a therapeutic purpose as it was not in any way related to the complaints expressed by Ms.
A. Ms. A.'s sexual integrity was violated and in my opinion the touching was sexual in nature.
Conclusion
98 In conclusion, I find that the Crown has established beyond a reasonable doubt all the essential
elements of a sexual assault. Mr. Zacher voluntarily touched Ms. A.'s breasts without her consent in
a way that violated her sexual integrity. Although Mr. Zacher had an honest belief in her consent
and was not reckless or wilfully blind to the issue of consent, I have found that he did not take
reasonable steps in the circumstances known to him at the time to ascertain whether Ms. A. was
consenting. Accordingly, Mr. Zacher is convicted of sexually assaulting Ms. A. as alleged.
D.G. REDMAN PROV. CT. J.
cp/e/qlcct/qlpwb/qlced/qlaxw/qljyw
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