Kingston massage therapist convicted of assault, not guilty of sexual assault
Local Registered Massage Therapist (RMT), Coel Francis Findlay, was convicted of assault, but not guilty of sexual assault.
The ruling, released Friday, September 17, 2021, was rendered by the Honorable Justice Gary W. Tranmer of the Superior Court of Ontario, following hearings held in Kingston on August 16 and 17, 2021.
Findlay was the owner of Back2You Massage Therapy in Collins Bay when he was arrested by Kingston Police and charged with sexual assault on September 20, 2017. When the assault occurred, he was also working at other spas in the Kingston area, and it was at one of them that the assault took place.
Findlay was registered with the College of Massage Therapists of Ontario (CMTO) in October 2014.
He was charged with one count of allegedly committed sexual assault against a client who had scheduled a treatment session with him in February 2017. Findlay was not the regular massage therapist the complainant was seeing, but the regular therapist. was not available. for that day.
In the reasons for his decision, Justice Tranmer states: “The main issues raised in this judge-alone trial are, in general, what did Mr. Findlay do to the complainant, and the complainant did- he consented to what he did?
The Crown called the complainant, his former regular massage therapist and a qualified expert witness to give opinion evidence about massage therapy. The defense called Coel Findlay as a witness.
The expert witness said the RMT should obtain informed consent before any treatment or touching begins and before the client undresses. In addition, the therapist “must inform the client of all aspects of the treatment to be performed. Consent is designed around the goals, benefits, risks and side effects of the proposed treatment.
He also testified that “if during a massage treatment, the therapist discovers a new area that requires treatment, he would take note and discuss it with the client after the treatment in question and follow-up in a future. appointment. with a new consent for this procedure on this new part of the body. This is because no consent was obtained in the current session to do so in the current session. This is what an RMT is taught.
According to the report, a conviction for sexual assault requires the Crown to prove beyond a reasonable doubt that the accused committed the criminal action: if he touches another person in a sexual manner without their consent. The Crown must also prove beyond a reasonable doubt that the accused and that he had the criminal intent sexual assault: an intention to touch and know or to be reckless or willfully blind to the lack of consent on the part of the affected person.
Judge Tranmer’s record states: “I have a reasonable doubt as to whether Mr. Findlay’s touching was of a sexual nature” and “I cannot be sure that his touching, as he described it, was not were not for legitimate therapeutic purposes. . I have a reasonable doubt in that regard.
“For these reasons,” Tranmer continued, “Mr. Findlay should be found not guilty of the sexual assault charge.
The report also states: “In considering all of the circumstances in deciding whether the touching was of a sexual nature in a medical or clinical setting, the court must consider the difference between conduct which might suggest professional incompetence or conduct which is unresponsive. not up to professional standards. , and conduct that must meet a criminal standard to be a felony. “
According to the findings, “Findlay undertook to touch the complainant in a recognized personal and private part” of the body.
However, Judge Tranmer could not find that the Complainant knew or expected to be touched in “that part of the body in the manner described by Mr. Findlay”.
Further, Findlay did not explain which part of the body he would “apply force” to, how or why. Therefore, the complainant could not consent and, in law, Findlay did not obtain the complainant’s consent to be affected.
Therefore, Tranmer J. concluded that the Crown had proved beyond a reasonable doubt that the complainant had not consented to be touched in this area, “even for the purpose of therapeutic treatment, and therefore Mr. Findlay is guilty of assault ”.
According to Angie Brennand, director of policy and communications for the College of Massage Therapists of Ontario, “On September 17, 2021, Coel Findlay was convicted of one count of assault. He is currently awaiting his conviction. The Order’s Investigations, Complaints and Reports Committee (ICRC) imposed an order temporarily suspending Coel Findlay’s certificate of registration. The provisional suspension continues until it is modified by the ICRC or until the ICRC or the Disciplinary Committee takes a final decision on his case.
She continued, “With respect to our general process, when a registrant is engaged in the criminal court process, the College suspends its investigation until the court case is concluded, which would include a finding or a final court decision, and if applicable, sentencing and any appeals that may arise. Once the court case was completed, the Order would proceed with its investigation.