(Content Warning: this article includes a description of the offence which may be upsetting to readers. Reader discretion is advised.)
Local Registered Massage Therapist (RMT), Coel Francis Findlay, has been found guilty of assault, but not guilty of sexual assault.
The decision, released Friday, Sep. 17, 2021, was made by The Honourable Justice Gary W. Tranmer of the Ontario Superior Court, following hearings 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 Sep. 20, 2017. When the assault occurred, he was also working at other Kingston-area spas, and it was at one of these 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 sexual assault alleged to have been committed against a client, who had scheduled a treatment session with him in February 2017. Findlay was not the regular massage therapist that the complainant had been seeing, but the regular therapist was unavailable for that day.
The victim testified that Findlay, without her consent, spread her legs by bending her knee and applying pressure with one hand. With his other hand, he cupped her “entire vagina” below the clitoris making a circular rubbing motion and that at no time did she consent to him touching her vagina. This happened multiple times; on each of the three instances, he touched her vagina for 10 to 20 seconds with just one hand. She “asked him a bunch of times what he was doing and why”. Each time, he answered that he noticed something while she was on her stomach and would not stop touching her vaginal area.
In his reasons for the decision, Justice Tranmer states, “The primary issues in this judge-alone trial are, generally stated, what did Mr. Findlay do to the complainant, and did the complainant consent to what he did?”
The Crown called the complainant, the complainant’s previous regular massage therapist, and an expert witness who was qualified to give opinion evidence on the subject of massage therapy. The defence called Coel Findlay as a witness.
The expert witness testified that the RMT should obtain informed consent before any treatment or touching begins and before the client undresses. Further, the therapist “must inform the client of all aspects of the treatment to be performed. The consent is designed around the goals, benefits, risks and side effects of the proposed treatment.”
He also testified that “if in the course of a massage treatment, the therapist discovers a new area that requires treatment, he would make a note of that, and discuss it with the client after the subject treatment and follow-up in a next appointment with a new consent for that procedure on that new part of the body. This is because no consent had been obtained in the current session to do it in the current session. That is what an RMT is taught.”
Mr. Findlay had claimed that he was touching the victim’s vagina because he was treating her pubic symphysis. The expert witness was asked whether manipulation of the pubic symphysis is taught to RMT students. He said that “there are joint mobilization techniques taught. Students are not taught to make direct contact with the pubic symphysis itself. He said to do so is out of the scope of RMT practice.”
According to the report, a conviction for a sexual assault requires that the Crown prove beyond a reasonable doubt that the accused committed the criminal action: if he touches another person in a sexual way without consent. The Crown must also prove beyond a reasonable doubt that the accused and had the necessary criminal intention of sexual assault: an 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.
Justice Tranmer’s record indicates, “I am left with a reasonable doubt as to whether the touching by Mr. Findlay was sexual in nature,” and “I cannot be sure that his touching, as he described it, was not for a legitimate therapeutic purpose. I am left with a reasonable doubt in that regard.”
“For these reasons,” Tranmer continued, “Mr. Findlay must be found not guilty of the charge of sexual assault.”
The report also states, “In considering all of the circumstances to decide if the touching was of a sexual nature in a medical or clinical setting, the court must consider the difference between conduct that might suggest professional incompetence or conduct that does not meet professional standards, and conduct that must meet a criminal standard to be a crime.”
According to the Judge’s findings, “Findlay engaged in touching the complainant in an acknowledged personal and private part” of the body.
“On the evidence, I must accept the testimony of the complainant that he did not say that he was going to touch her pubic bone area, that he did not use the words pubic symphysis, and that he did not explain what he was going to do or why. This is consistent with the evidence of the accused who testified that he could not say where in his explanation seeking her consent it was that she interrupted him.”
“I find as a fact that she did not consent to him touching her in the area of her vagina or her clitoris.”
“I find on the evidence of Mr. Findlay which is consistent with the evidence of the complainant, that after he instructed the complainant to lie on her back on the treatment table he did not tell her that he was going to apply force to the area of her pubic bone or how or why. Without such information, she could not consent. Therefore, in law, he did not obtain her consent to do what he did.”
Further, Findlay did not explain to which part of the body he would “apply force,” how or why. Therefore the complainant could not consent and, in law, Findlay did not obtain the complainant’s consent to be touched there.
Therefore, Justice Tranmer found that the Crown had proven beyond a reasonable doubt that the complainant did not consent to be touched in that area, “even for the purposes of therapeutic treatment, and therefore, Mr. Findlay is guilty of assault.”
According to Angie Brennand, Director of Policy & Communications for the College of Massage Therapists of Ontario, “On September 17, 2021, Coel Findlay was found guilty of one count of assault. He is currently awaiting sentencing. The College’s Inquiries, Complaints and Reports Committee (ICRC) has imposed an interim suspension order on Coel Findlay’s certificate of registration. The interim suspension continues until it is varied by the ICRC or until the ICRC or Discipline Committee finally disposes of its matter.”
She continued, “In terms of our general process, when a registrant is engaged in the Criminal Court process, the College places its investigation on hold until the court matter is concluded, which would include a finding or final decision by the court, and if applicable, sentencing and any appeals that may occur. Once the court matter is concluded, the College would proceed with its investigation.”