WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE Toronto
BETWEEN:
HIS MAJESTY THE KING — AND — TRUNG PHAM
For the Crown: A. Nash
For the Defendant: H. Gonzalez
Heard: August 8, 2024 and March 6, 2025
REASONS for JUDGMENT
Russell Silverstein, J.
A. INTRODUCTION
1Mr. Pham is accused of sexually assaulting J.N. on or about February 25, 2022.
2Mr. Pham owns and operates a hair salon. He offers hairstyling services as well as body hair removal to his customers.
3J.N., the sole witness for the Crown, alleges that on the day in question he went to have his hair cut by Mr. Pham, as he had done several times over the preceding 6-7 months. After the haircut was complete, Mr. Pham offered to trim J.N.’s back hair. J.N. agreed to pay an extra $5 for that service. According to J.N., during this latter service, Mr. Pham took down J.N.’s pants and underwear, then shaved and fondled J.N.’s penis without J.N.’s consent.
4Mr. Pham testified and, even though he did not recognize J.N. and could not say whether he had ever serviced him, he denied the alleged sexual assault. He called no further evidence.
B. THE EVIDENCE
(a) Introduction
5What follows is a summary of the salient aspects of the witnesses’ testimony. A transcript of the proceedings is available.
(b) J.N.’s testimony in chief
6J.N. had been a customer of Mr. Pham’s hair salon for approximately six or seven months, during which time he had had his hair cut there once per month, usually by Mr. Pham. On “a couple of occasions” Mr. Pham’s sister had cut his hair. Although he and Mr. Pham did not usually talk much, he found Mr. Pham to be friendly and referred to him as “Terry”. They would normally exchange pleasantries.
7On the day in question, J.N. told Mr. Pham that he wanted “the usual” and he also described what he was looking for. J.N. told Mr. Pham that he had a date the next day and Mr. Pham gently squeezed J.N.’s chest and offered to make him look good for the date. He then offered to remove the hair on his back. J.N. accepted this offer understanding that it would cost an extra $5.
8Mr. Pham escorted J.N to a separate room that looked like a hair removal studio and closed the door. Mr. Pham asked J.N. to take off his shirt, which he did.
9Mr. Pham proceeded to work on J.N.’s back and after a short period of time Mr. Pham, without warning, and without asking permission, pulled down J.N.’s pants and underwear in a single motion. Mr. Pham continued to remove J.N.’s back hair.
10A short time later Mr. Pham grabbed hold of J.N.’s penis with a tissue and told him that there was a lot of hair down there and that girls don’t like it when there is a lot of pubic hair. Mr. Pham then started trimming J.N.’s pubic hair without having asked if J.N. wanted that service.
11Shortly thereafter, Mr. Pham abandoned the tissue and held J.N.’s penis in his bare hands as he continued to trim the area above and around his testicles.
12Mr. Pham then commented to the effect that the skin of J.N.’s penis was dry and that it should be moisturized. J.N. said he could do that at home, but Mr. Pham proceeded to apply lotion to J.N.’s penis and applied it with his hands, as if giving J.N. a “hand job”. As a result, J.N. achieved a partial erection. Mr. Pham said “hey, it looks bigger now”.
13J.N. was not happy about Mr. Pham’s touching of his penis. He does not recall saying anything because he was in shock.
14Mr. Pham then told J.N. to pull up his pants, which he did. Mr. Pham then offered a hug to J.N. which he accepted. J.N. then paid Mr. Pham’s sister at the cash and included a 20% tip.
15J.N. felt violated as he biked home after the incident. He chatted with his friends about it and called 911 the next day. He eventually gave a statement to the police on March 2nd.
(c) J.N.’s cross-examination
16J.N. was carefully questioned about his 911 call and his statement to police. J.N. admitted that he told the truth in those interviews and that he now agrees with and adopts everything he said.
17Through reference to those statements, it was established that:
- when Mr. Pham pulled down J.N.’s pants it was in order to complete the back trim and that J.N. thought it was “okay”.
- Mr. Pham explicitly suggested the pubic hair trim and J.N. may have said something in response, although he could not recall what he said.
- While Mr. Pham trimmed his pubic hair J.N. was unclear as to how he felt about it, and it was only afterward that he came to think that there was something “not okay” about it.
- J.N. said nothing to the police about Mr. Pham trimming his testicles. J.N. conceded that he didn’t really remember whether this had in fact occurred.
- What stood out in J.N.’s mind after the service was that Mr. Pham had not done a good job in performing what he had promised on the pubic hair trim.
- J.N. thought that, as concerns the groping, this was something Mr. Pham did and “it was fine”.
18On re-examination J.N. explained that by “groping” he meant the trimming of his pubic hair, the touching of his penis and the application of moisturizer. He re-iterated his in-chief position that he did not feel it was “fine” at the time.
(d) Mr. Pham’s testimony in chief
19Mr. Pham testified that he did not recognize J.N. He might well have performed services on J.N. prior to and on the day in question but he had no recollection of doing so. On the day in question his salon was very busy because he was about to go on vacation.
20Mr. Pham knows, however, that even if he did trim J.N.’s pubic hair and apply moisturizer, based on his training and practice, he would have obtained his consent because he would never perform such services on anyone without their explicit consent.
21Much of Mr. Pham’s testimony concerned the details of the normal operation of his salon and the nature of his careful discussions with clients before he performs his services, which include all manner of body hair removal. He only does what the client requests, although he will sometimes suggest certain services to maximize his revenue. He always wears gloves when he performs body hair removal and if the clients need to take their clothes off, they do so themselves.
(e) Mr. Pham’s cross-examination
22Mr. Pham would not have touched J.N.’s chest before the haircut as J.N. described. He would only do that to a client who was also a friend.
23In the last 12 months Mr. Pham estimates that he has performed pubic hair removal 30-40 times.
C. ISSUES AND ANALYSIS
(a) Introduction
24This case turns almost entirely on the credibility and reliability of the two witnesses: J.N. and Mr. Pham.
25Because Mr. Pham testified and denied assaulting J.N., I must approach the evidence as follows: if I believe Mr. Pham’s denial; I must of course find him not guilty. Even if I am not convinced by his testimony, it may nonetheless, when examined in the context of all the evidence, raise a reasonable doubt. If it does, I must also find him not guilty. If it does not raise a reasonable doubt, I must examine the evidence that I do accept to see if it proves the criminal allegations beyond a reasonable doubt. If it does not, Mr. Pham must be acquitted. If it does, he must be found guilty. See R. v. W.D., [1991] S.C.J. No. 26.
(b) The essential elements of sexual assault
26Harris J. in R. v. George-Oomen, 2020 ONCJ 37 at paras. 29-37, succinctly and accurately summarizes the elements of sexual assault:
Sexual assault is an assault that is committed "in circumstances of a sexual nature, such that the sexual integrity of the victim is violated".
Section 265 of the Criminal Code provides that a person commits an assault when, without the consent of another person, he applies force intentionally to that other person, directly or indirectly. This section applies to all forms of assault, including sexual assault.
The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one.
The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant.
The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.
The actus reus of sexual assault is established by the proof of:
- (1) a touching,
- (2) the sexual nature of the touching, and
- (3) the absence of consent.
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.
The accused's perception of the complainant's state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.
The offence requires general intent only. The mens rea for the offence is the general intent to touch the complainant.
See too R. v. Chase, [1987] S.C.J. No. 57; R. v. Ewanchuk, [1999] S.C.J. No. 10.
(c) The assessment of J.N.’s credibility and reliability
27In my view, J.N. was not trying to deceive the court. I find he was faithfully recounting what he now honestly believes occurred during his encounter with Mr. Pham.
28I believe that on the day in question he did indeed undergo the back hair and pubic hair removal that he described. I also accept his testimony as to the frequency of his visits to the salon. He would have no reason to lie or exaggerate about this.
(d) The assessment of Mr. Pham’s credibility and reliability
29I do not believe Mr. Pham’s assertion that he does not recognize J.N.
30Pubic hair removal is not such a frequent service that J.N. would have been lost in the crowd, especially given that J.N. had been a monthly customer over the preceding 6-7 months.
31Because I do not believe this central theme of Mr. Pham’s testimony, I do not accept the exculpatory aspects of his testimony nor does his testimony raise a reasonable doubt. I should add that I found his answers to be evasive and formulaic during much of his cross-examination.
(e) Discussion
32In my view, this case falls to be decided on the third branch of the test in W.D.
33I accept J.N.’s testimony as to what occurred between him and Mr. Pham on the day in question.
34As to whether J.N. consented to what occurred is more difficult.
35J.N.’s adoption of his statement to the police that is set out above in paragraph 17 of this judgment, along with the fact that he left Mr. Pham a generous tip, leave me with a reasonable doubt on the issue of consent. Not consenting to Mr. Pham’s “groping” is inconsistent with thinking at the time that “it was fine”.
36The Crown has the burden of proving beyond a reasonable doubt that when Mr. Pham touched J.N. in the manner complained of, J.N. did not consent to that touching. I find that the Crown has failed to meet that burden. On the evidence presented, I am not sure that J.N. did not consent to the touching that has been proved.
D. CONCLUSION
37The charge is dismissed.
Released on May 9, 2025
Justice Russell Silverstein