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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
CITATION: R. v. Ho, 2026 ONCJ 481
DATE: 2026 07 24
COURT FILE No.: Newmarket 998-26-91101473
BETWEEN:
HIS MAJESTY THE KING
— AND —
ERIC MING DAO HO
Before Justice Michael Perlin
Heard on July 22, 2026
Reasons for Judgment released on July 24, 2026
Robert Scott......................................................................................... counsel for the Crown
Noel Gerry...................................................................................... counsel for the defendant
[1] The defendant is charged with assault, sexual assault, and communicating for the purpose of obtaining sexual services for consideration.
[2] The defendant acknowledged he contacted CG using a phone number she had published to advertise her sexual services. By text message, he confirmed a price and the sex acts he wished her to perform. They agreed to meet at a hotel late on March 18, 2025. He testified that he went to the hotel, intending to pay her for sex. The defendant conceded through his counsel that the essential elements of the sexual-services count were satisfied. I agree. I find him guilty of that count.
[3] The assault and sexual-assault counts relate to events during the five minutes while the defendant and CG were in the hotel room. Most of the facts are not in dispute. When he arrived, she insisted that he pay upfront. He refused and insisted on paying after. She refused. She asked him to leave. He did not leave immediately. He sat on the bed and got dressed slowly. She continued to ask him to leave, and asked him to hurry. He was agitated or irritated by the situation. She testified that he said he was going to take his time. She picked up his jacket to give it to him. He told her to not touch his stuff. She moved, placing her back against the wall. He approached her.
[4] The defendant and CG disagree about what happened next. She testified that he got very close, saying, in response to her repeated demands that he leave, “what are you going to do about it?” She was scared. He was angry, and “in [her] face”. She pushed him away to expel him from her personal space.
[5] In contrast, he testified that he approached her, grabbed his jacket from her hand and repeated his demand, in a firm and aggressive tone, that she not touch his stuff. He testified that she responded by attacking him, with both hands “flailing” and in a “claw position”, scratching at his face.
[6] They both agreed, in essence, on what happened next. In response to whatever force she had applied, he brought her to the ground, where he pinned her for between 30 seconds and a minute, as she resisted. When this was over, she had suffered rug burns or scratches to her knees, elbows, upper chest, and back. He had scratches on his face; she says they were inflicted during the struggle on the floor; he says they were the injury that prompted him to take her to the ground in self-defence.
[7] The Crown says this is a criminal assault. The key legal issue is whether the defendant acted in self-defence, as defined in s. 34 of the Criminal Code. This defence will succeed—resulting in an acquittal—unless the Crown satisfies me beyond a reasonable doubt that one or more of the essential elements of self-defence is absent. The key factual issue driving the self-defence analysis is what happened leading up to the defendant forcing CG to the ground.
[8] CG testified that after the defendant released her, she went and opened the door. She testified that as he walked past her, he grabbed or slapped her breast and smiled. The Crown says this is a sexual assault. The defendant denies that this occurred.
[9] I will address the relevant legal principles, my credibility findings, whether the defendant acted in self defence during the alleged assault, and, finally, the alleged sexual assault.
I. Core legal principles
[10] The Crown’s bears the burden of proving the charges beyond a reasonable doubt. The burden of proof never shifts to the defence. Proof beyond a reasonable doubt is not proof to an absolute certainty. But it is much closer to that degree of certainty, than it is to proof that something is more likely than not. A reasonable doubt is a doubt based on reason and common sense that arises logically from the evidence or an absence of evidence. In essence, to find the defendant guilty, I must be sure he is guilty.
[11] In a case like this where the defence calls evidence and there are credibility issues to resolve, if I accept the defence evidence demonstrating that any essential element of an offence is not satisfied, I must find the defendant not guilty of that offence. Even if I do not believe this exculpatory defence evidence, if I am left in reasonable doubt by it with respect to any essential element of an offence, I must find the defendant not guilty. It is only if I am satisfied, based on the evidence I do accept, that every essential element of an offence has been proven that I will find the defendant guilty of that offence.
II. Credibility and factual findings
[12] CG’s straightforward evidence was believable and suffered from no significant credibility or reliability issues. The credibility and reliability of her evidence regarding the alleged offences is unharmed by the fact that her memory had to be refreshed on certain peripheral details, like the hotel’s name or her room number, and that she could not recall certain other specifics, like where on his body she had pushed him. On the core of the allegations, she had no difficulty recalling and recounting her version of events. The only real inconsistency was in her description of how the defendant allegedly touched her breast while leaving the room. She testified both that he had grabbed and slapped her breast. She used both words, sometimes together (“grab-slapped” or “grabbed-slapped”). She had told police that he “like, slapped” her breast. She was cross-examined on this variation. I accept her explanation that she was having difficulty precisely describing how he had touched her, as was evident in her testimony.
[13] The defendant’s evidence was detailed. He gave truthful evidence regarding the sexual-services count. However, his evidence also suffered from major issues.
[14] He says he could not step back to evade her attack. I find that this is not true. On his own evidence, he had taken a step forward to approach her to retrieve his jacket. On his evidence, she had attacked him by scratching him while her back was still pressed against the wall. There is nothing to suggest that something had blocked the route he had taken to approach her. Clearly there was enough room in that space for him to knock her down and then lie on top of her, as they both described. Initially in cross-examination, he acknowledged he could have backed away but did not.
[15] His explanation for how she ended up with injuries to her upper chest and neck also defies belief. At first, he testified the marks observed in photos were rug burns. When confronted with the evidence that she had been pinned on her back, he introduced for the first time in cross-examination that he had knocked her to the ground on her face and had flipped her onto her back before pinning her to the ground with his knee. The evidence is inconsistent with his earlier evidence that he had used two martial-arts moves: a leg sweep to knock her to the ground, which caused them both to fall, and a “knee to belly” to pin her to the ground. If his goal was to subdue her, and she was face first on the ground, it makes no sense that he would have flipped her onto her back—a position in which her continued aggression would be more likely. I reject his explanation that he flipped her onto her back out of concern that subduing her while she was on her front would have been more uncomfortable for her.
[16] His evidence was internally inconsistent in other ways. First, in chief, he described CG attacking him with her hands in a “claw” position to scratch him. In cross-examination, in response to a question about slapping, he introduced that she had also tried to slap him. Second, initially in cross-examination, he testified that he could have backed up when she attacked. He explained he made a “split-second decision” to respond by taking her to the ground rather than backing up. He testified that if he had backed up, she could have continued to attack him. He later testified that it would have been impossible for him to back up.
[17] Significantly, there is consensus in the evidence of the defendant, CG, and CG’s friend C, on the dynamics within the hotel room, which corroborate CG’s evidence and contradict the defendant’s.
[18] Before the defendant arrived, CG and C were on a call together. They have a protocol when CG is seeing a client. C will wait on the phone to ensure everything is okay. On this occasion, C could hear, but not see, some of what happened in the hotel room. She confirmed that CG repeatedly asked the defendant to leave, and that he refused. She testified that he became angry, and that his tone and volume led her to become increasingly concerned for CG’s safety. Eventually, she tried saying into the phone that she was going to call police. She heard no response. She was so concerned that she called the hotel front desk, asking someone to go to the room immediately. She called the police. Then she took an Uber 25 or 30 minutes to the hotel.
[19] C’s evidence corroborates CG’s description of the dynamics, which were also acknowledged by the defendant: she wanted him to leave; he was defiant and aggressive.
[20] The defendant agreed that he acted passive aggressively: he intentionally delayed in putting his clothes on. He testified he wanted to leave “on [his] own terms” and wanted to “prove [his] point”. I find that he was overtly aggressive towards her. They both agreed that he used what I characterize as confrontational language—“what are you going to do about it”—in response to demands that he leave. He acknowledged telling CG that she had made “a big mistake” while pinning her.
[21] I am satisfied that the defendant’s evidence of CG violently attacking him is completely incongruent with these dynamics. She wanted him to leave. She was afraid of him. His action of taking his jacket from her, even aggressively, was a further step toward an outcome she wanted. He acknowledged she was holding the jacket so he would take it. I reject the defendant’s evidence that the way in which he took the jacket from her led her to attack him.
[22] I accept the evidence that CG pushed the defendant away after he had gotten very close to her, “in [her] face”. This defensive action was consistent with her evidence that she was concerned for her safety due to the defendant’s aggression and had backed herself against a wall to protect herself.
[23] Based on the foregoing analysis, I reject the defence evidence where it differs from CG’s evidence. His evidence does not raise a reasonable doubt in my mind. Where their evidence differs, I accept her evidence.
III. Was the assault committed in self-defence?
[24] On the evidence of both the defendant and CG, it is clear that his actions—grounding and pinning CG—satisfy the essential elements of assault: he intentionally applied force, she did not consent, he could not have believed that she consented.
[25] The defendant claims he acted in self-defence. The Crown concedes there is an air of reality to self-defence with respect to the assault count. Where self-defence under s. 34 of the Criminal Code, R.S.C. 1985, c. C-46, applies, it can operate as a complete defence, resulting in an acquittal for conduct that would otherwise constitute an assault. Self defence has three elements:
First, the catalyst: the defendant must subjectively believe on reasonable grounds that force is being used or threatened against him. The reasonable-grounds requirement means that I must ask whether a reasonable person who shares the attributes, experiences and circumstances of the defendant would conclude that force or a threat of force was being used against him;
Second, the motive: the action must have been taken to defend or protect against a use of force, rather than for some other motive like vengeance. The assessment is subjective: in this case, the question is whether the defendant subjectively intended his action to defend against CG applying force to him.
Third, a reasonable response: the action must be reasonable, having regard to “the relevant circumstances of the person, the other parties and the act”, including, if they are relevant in a given case, a list of factors set out in s. 34(2).
See R. v. Khill, 2021 SCC 37, at paras. 51-71; R. v. Hodgson, 2024 SCC 25, at paras. 74-76; R. v. Filli, 2025 ONCA 231, at para. 21; R. v. Madison, 2025 ONCA 42, at para. 54.
[26] The Crown bears the burden of disproving the defence. To do so, the Crown must prove beyond a reasonable doubt that one or more of the three essential elements of self-defence is absent. In other words, the defence will fail only if I find beyond a reasonable doubt that either
(i) The catalyst is absent, in that the defendant did not believe on reasonable grounds that force was being used against him,
(ii) The motive is absent, in that the defendant did not apply force to CG to defend against her use of force, or
(iii) The reasonable-response element is absent, in that the defendant did not respond reasonably in the circumstances.
[27] First, I will consider the catalyst. I find that CG wanted the defendant to leave and pushed him to expel him from her personal space, after he had gotten very close to her, in her face. On CG's evidence, which I accept, the push prompted the defendant to immediately bring her to the ground. There was no dispute that over the next 30 seconds to a minute, he used his body in an effort to restrain her.
[28] When the defendant grounded CG, force had been used against him. But I am satisfied beyond a reasonable doubt that at the time he applied force, moments after the push, she was no longer applying or threatening to apply force to him, and it would be unreasonable for him to have come to that conclusion. CG’s clear desire at the time this occurred was for the defendant to leave. When he intruded into her personal space, she pushed him to create distance between them. On his evidence, she remained with her back against the wall. On these facts, there was no reasonable basis to conclude that she intended to apply of threaten force to him again, unless he chose to intrude into her space again.
[29] Second, with respect to the “motive” element, I am satisfied beyond a reasonable doubt that in grounding and pinning CG, the defendant was not motivated by a desire to defend or protect himself, but by anger. This is the only explanation consistent with their dispositions at the time. The defendant was at no risk from CG. He knew she wanted him to leave. She pushed him away from her, consistent with her motive. I am satisfied that his response was driven by his anger and frustration at her. I find that his comment to her while they were on the ground that she had “made a big mistake”—which he acknowledged saying—speaks to a state of mind focussed on asserting his dominance in the situation. He responded immediately to her defensive push with an aggressive action that brought them both to the ground. The fact that he reacted this way rather than by backing up or assuming a posture to defend against any future attack further indicate he responded out of anger, consistent with his angry disposition at the time.
[30] Third, with respect to the “reasonable response” requirement, I am satisfied that the force used by the defendant was not reasonable in the circumstances. The defendant says he used an amount of force measured carefully, based on his extensive martial-arts training. He testified he has years of training in jiu-jitsu. This experience is relevant to the reasonableness assessment. I must consider what a reasonable person with similar martial-arts training would do in the circumstances: R. v. Khill, 2021 SCC 37, at paras. 64-65.
[31] I have considered each of the factors outlined in s. 34(2) of the Criminal Code. They uniformly push against a finding that the defendant’s response was reasonable.
(a) the nature of the force or threat: On my findings, the force applied to the defendant—a push—had concluded. It had been applied by CG defensively, as the defendant intruded into her personal space in response to her repeated demands that he leave. When the defendant acted, the threat CG had posed was gone and, when that threat had existed, it had posed little-to-no risk to him, particularly given the strength disparity between them and his martial-arts training.
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force: There was no apparent risk that CG would use force imminently. I accept the defendant’s initial evidence in cross-examination that he could have backed away from her, even in the more volatile flailing-hand-attack scenario he described, which I have rejected.
(c) the person’s role in the incident: The defendant's aggressive conduct and invasion of CG’s personal space precipitated her fear and defensive push.
(d) whether any party to the incident used or threatened to use a weapon: No weapon was involved.
(e) the size, age, gender and physical capabilities of the parties to the incident: On the defendant's evidence, he is much stronger than CG, and, with his martial-arts training, was in a position to inflict significant harm on her.
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat: The parties had no prior relationship of note.
(f.1) any history of interaction or communication between the parties to the incident: The parties had no prior communications of note that would be relevant to this assessment, other than CG's repeated requests that he leave and the defendant’s passive-aggressive refusal to do so. I am satisfied that this factor would suggest strongly to a reasonable person in the defendant's circumstances that CG had no interest in harming him. She simply wanted him to leave.
(g) the nature and proportionality of the person’s response to the use or threat of force: The force used by the defendant, while not involving serious acts of violence, was disproportionate to any threat posed by CG, who was smaller and weaker than the defendant, and who was backed up against a wall.
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful: There is no evidence that the defendant knew CG's use of force against him was lawful.
[32] Having considered these factors, I am satisfied beyond a reasonable doubt that the force used by the defendant was unreasonable in the circumstances. A reasonable person, after intruding into CG’s personal space and receiving a defensive push, would have backed away from her, a smaller, weaker woman who was clearly overmatched. Even if the defendant believed she continued to wish to apply force—a proposition I reject—the most the circumstances could have justified would be a push or some purely defensive action by the defendant to generate more space to facilitate his departure. He was trained in a defensive form of martial arts. In his evidence, he pointed to blocking an attack as something he could do. There was simply no need to pin her to the ground. I am satisfied that the defence under s. 34 fails on all three branches.
IV. Sexual assault
[33] The sexual-assault count requires proof of an assault in circumstances of a sexual nature. The issue here is whether CG testified truthfully that the defendant touched her breast in some way on his way out of the hotel room. The defendant denied that this happened. As I have said, I have serious concerns regarding the defendant’s evidence. They cause me to reject and not be left in doubt by his denial. Having considered all the evidence, I am satisfied that CG was telling the truth. She was a credible witness, whose evidence I accept.
[34] Moreover, her description of the sexual-assault allegation fits seamlessly in the overall dynamics of the situation described by the witnesses. He acknowledged he intended to leave on his own terms. He was upset at having been refused the sexual services he had attended to obtain for consideration. She had defied him by pushing him. His conduct up to that moment and after it (that is, the assault) demonstrates to me that he was aggressively attempting to assert his control over her in response to her perceived defiance of him. The act of groping her breast in some way as he left is consistent with these dynamics and his motivation. I am satisfied beyond a reasonable doubt that this happened, that CG did not consent, and that the assault occurred in circumstances of a sexual nature, given the part of her body touched and the context, involving a thwarted attempt to obtain sexual services for consideration.
V. Disposition
[35] I find the defendant guilty of all three counts.
Released: August 14, 2026
Signed: Justice M. Perlin