The B.C. Court of Appeal has overturned three sexual assault convictions against a North Vancouver massage therapist, ruling that evidence about the man's alleged bad character should not have been admitted in the trial.
The error in the trial of David Joseph Fierro, 44 - who was accused of sexually assaulting a former patient during massage sessions - amounts to a "miscarriage of justice," wrote B.C. Court of Appeal Justice Kathryn Neilson.
The panel of three appeal court justices tossed out the original provincial court decision and ordered a new trial.
Fierro was found guilty of sexually assaulting the former patient following a trial in North Vancouver provincial court last summer.
The alleged victim, whose name is protected under a court-ordered publication ban, testified Fierro sexually touched her while telling her he was providing treatment for a deviated tailbone at Steve Nash Fitness World in North Vancouver. The victim said Fierro also had inappropriate sexual conversations during treatment.
The woman's boyfriend - a former friend of Fierro's -testified during the original trial that Fierro had confided "he was a sex addict" and had become a massage therapist "to overcome his addiction to sex and lust for women and to control his sexual urges."
The boyfriend testified he later became suspicious of 's intentions with female patients.
Fierro denied the allegations and said the victim fabricated the story. He said the conversations with the boyfriend never took place.
Credibility was the key issue in the trial.
The appeal court ruled that relying on boyfriend's testimony, including his "intuition and suspicions" about Fierro, was prejudicial to the case, as was allowing the prosecutor to crossexamine defence witnesses about the motives of Crown witnesses.
The testimony "was clearly intended to demonstrate the appellant had a propensity to improperly use his profession to satisfy his sexual needs... ." wrote Neilson. "It painted him as a deviant practitioner who used his profession in a predatory manner to satisfy his sexual urges."
But Neilson said the Crown can't prove guilt by leading evidence about the accused's "bad character" or evidence that suggests the accused is the type of person with a propensity to commit crimes such as those charged.
The justices also said the trial judge should not have attributed Fierro's failure to contact the woman after he learned of her complaints as evidence of guilt.
Provincial court Judge Doug Moss sentenced Fierro to nine months in jail last September, but Fierro was released on bail Nov. 8 pending his appeal.
At the time of his original conviction, Fierro resigned his credentials as a registered massage therapist. The College of Massage Therapists of B.C. is still conducting an investigation into Fierro as a former member, said Joelle Berry, director of compliance for the college.
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