Warning and Non-Publication Order
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Case Information
DATE: January 10, 2025
ONTARIO COURT OF JUSTICE Toronto
BETWEEN:
HIS MAJESTY THE KING — AND — SHOU MA
For the Crown: A. Serban
For the Defendant: P. Brauti and A. Banister-Thompson
Heard: September 5, 6; October 15, 2024
Reasons for Judgment
Russell Silverstein, J.:
A. Introduction
[1] Mr. Ma is charged with one count of sexual assault arising out of a November 14, 2022, encounter between him and Ms. N.T.
[2] Ms. N.T. and an independent witness, Jean-Philippe Tachdjian, testified for the Crown. Only Mr. Ma testified for the defence.
[3] It is common ground that at the material time, Mr. Ma was the chief executive officer and part owner of Hanson College, a private education company that owns and operates several private schools. Ms. N.T. had been employed at Hanson College since August 29, 2022, as the manager of marketing and social media. The incident, or incidents in question took place at an evening reception at the El Mocambo night club in Toronto. The reception was held in conjunction with the annual conference of the Canadian Bureau for International Education.
B. The Evidence
(a) Introduction
[4] I shall limit my review of the evidence to its salient aspects. A transcript of the testimony of the witnesses is available.
(b) Mr. Tachdjian’s Testimony in Chief
[5] Mr. Tachdjian has been an executive director at Global Affairs Canada since 2019. On the evening in question, he was attending the El Mocambo reception on behalf of the government of Canada as an invited guest.
[6] He arrived at the club around 8:30 pm and at around 9:30 pm he went to the second floor where there was a bar and a band playing music. There were approximately 300 people in the upstairs room. People were mingling and drinking near the various bars.
[7] Mr. Tachdjian went to one of the bars and ordered a drink. Ms. N.T. came over, stood next to him, and ordered a drink. She was happy, friendly, and seemed completely sober. They began conversing with each other. While they were talking, Mr. Ma approached her from her left, slid his arm around her waist, spoke to her in her ear and then pulled her away. Mr. Tachdjian did not hear what Mr. Ma said to her.
[8] While Mr. Ma and Ms. N.T. were standing and speaking with two other people approximately 8-10 feet from Mr. Tachdjian, Mr. Ma kept Ms. N.T. very close to his body with his arm around her waist. When the other men left the company of Mr. Ma and Ms. N.T., Mr. Ma began repeatedly kissing Ms. N.T.’s neck. Mr. Tachdjian saw Mr. Ma’s right hand move from her waist to her buttocks. Ms. N.T. was frowning, and keeping her eyes closed. Mr. Tachdjian thought she looked displeased.
[9] Mr. Ma left the group and Mr. Tachdjian approached Ms. N.T. and asked if she was okay and if the guy who had just kissed her neck was her boyfriend. Ms. N.T. assured Mr. Tachdjian that he was not her boyfriend but rather her boss. Mr. Tachdjian asked her if her boss always treated her this way. She told him that it had happened once or twice before but that he had been drinking on those occasions.
[10] He told her that he thought that her boss’s behaviour was unacceptable in Canada and that she should consider looking for another job. She then asked if he would be a witness for her should she decide to complain. He said he would and gave her his business card. She expressed some interest in applying to work for Mr. Tachdjian’s organization and he told her to submit her CV.
[11] Approximately a week later Ms. N.T. called Mr. Tachdjian and told him she was considering making a complaint about Mr. Ma’s behaviour at the El Mocambo. She asked if he would still agree to testify, and he told her he would.
[12] Mr. Tachdjian had only one drink that evening.
(c) The Cross-Examination of Mr. Tachdjian
[13] Mr. Tachdjian was later contacted by police. He gave them both a verbal and written statement concerning the evening in question.
[14] When asked to be more specific as to where on her buttocks Mr. Ma put his hand, Mr. Tachdjian first agreed that it was on “the cheek” of her right buttock. He was then asked this question:
But I take it that all of this is sort of happening in and around the same time. It’s the hand sliding down to the side of the buttocks, slash, hip. It’s the, whatever this kiss is in the head area, and it’s the close talking…
To which he responded: Yes.
[15] He also conceded that while it looked to him as if Mr. Ma was kissing Ms. N.T.’s neck, “if it was the cheek [he] could have been mistaken”.
(d) Ms. N.T.’s Testimony in Chief
[16] Ms. N.T. was 27 years old when she testified. She came to Canada from India in 2018 to pursue her education. She is a 2022 graduate with a marketing degree from Ryerson University. Ms. N.T. had been employed at Hanson College since August 2022 as the manager of marketing and social media. She and Mr. Ma worked at the same building at 211 Consumers Road. She would see him there in passing two or three times a week.
[17] Ms. N.T. was attending the three-day conference and was staying at the Delta Chelsea Hotel in downtown Toronto. On the evening in question, she went to the El Mocambo reception and arrived at around 9 pm. She went directly to the second floor. Photos were being taken as invitees posed on the stage.
[18] Approximately 20 minutes after arriving Ms. N.T. received a message asking her to report to the stage for a group photo that would include the CEO, Mr. Ma. She was among the last to arrive there and she stood in an available spot next to Mr. Ma. He told her she looked “really good” and that he was “really happy” to see her there. She told him that she too was happy that he was there. He put his hand around her waist as the pictures were taken. She placed her hand on his back. She smelled alcohol on his breath, and he was laughing more than usual. As they walked down a set of stairs from the stage after the photos were taken Mr. Ma was behind her and, without saying anything to her, he firmly grabbed her right buttock for four or five seconds. She turned around and saw him smiling. Not certain how to react, she said nothing yet increased her pace and got off stage. She felt shocked and confused. She did not immediately say anything to anyone about this incident because Mr. Ma was the CEO and she wasn’t sure whom she might speak to about it.
[19] Seconds later, as they were walking towards the bar, she felt him behind her again. He put his hands around her waist and pulled her closer to him. He again grabbed her right buttock with his right hand for four or five seconds.
[20] Ms. N.T. and some of her colleagues went to the bar and ordered drinks. Mr. Ma was among them. Mr. Ma told Ms. N.T. that she was very sensual and that he looks at her every time they are at work. He then grabbed her buttocks again and kissed her on the cheek multiple times. This time she pushed him away. He tried to kiss her on the lips, and she pushed him away again. None of her colleagues intervened.
[21] She asked him why he was doing this, reminding him he had a wife and children. He told her he was separated, lives alone, and wanted her to come to his condominium with him. Later that evening at the reception, Ms. N.T. told her supervisor, Hardeep Kaur, that Mr. Ma was drunk and being inappropriate.
[22] Mr. Ma left the party before Ms. N.T., and as he was leaving, and while she was speaking to Mr. Tachdjian, he pulled her away and told her he was going home and asked if she was coming with. He grabbed her buttocks again then left the party.
[23] Ms. N.T. returned to speak to Mr. Tachdjian after Mr. Ma left. He asked her if “he” had just grabbed her butt and she said yes. He asked if she was okay and gave her his business card while telling her she was free to reach out to him if she needed any help.
[24] Ms. N.T. had consumed two drinks before the photo session. She had three more over the course of the evening. When she left the party to return to her hotel she felt “a little tipsy”.
[25] On November 16th Ms. N.T. received an electronic message from Mr. Ma on Teams that read:
Hey N., thank you for attending the CBIE. I hope it was a good experience for you and provided good ideas to follow up on the marketing priorities. My apologies for not handling myself the best way I could after a few too many cocktails. Though I also blame the wrong drink that I got from Greg in the midst of a fun night. Hope we could continue the conversation at another time with the proper setting.
[26] Ms. N.T. did not respond to the message and never spoke to Mr. Ma about what had happened at the reception.
[27] On November 15th Ms. N.T. reached out to Human Resources (HR) at her workplace and told them about what had occurred and that she did not feel comfortable coming back to work. She asked them to send her the company’s policy on sexual assault and a complaint form which she submitted on November 18th. The company opened an investigation into the incident. Ms. N.T. was told by HR on December 21, 2022, that due to privacy laws she could not be told the details of how Mr. Ma was reprimanded and that her work from home accommodation would expire on January 5, 2024.
[28] Ms. N.T. did not return to work on January 5th because she was too uncomfortable to do so having learned that Mr. Ma had attended the recent Christmas party, notwithstanding the pending HR disciplinary action against him. The company granted her a brief extension of her work-at-home arrangement.
[29] Ms. N.T. first spoke to the police about the incident on January 26, 2023.
(e) The Cross-Examination of Ms. N.T.
[30] Ms. N.T. had reviewed her two police statements prior to testifying and confirmed that everything she told the police was accurate and true.
[31] The El Mocambo reception was the first social event she had ever attended where Mr. Ma was present. She denied ever telling Mr. Tachdjian that Mr. Ma had done this sort of thing before. She admitted that if she did tell him that it would not have been true.
[32] Ms. N.T. admitted that no one apart from Mr. Tachdjian ever pointed out to her that they had seen Mr. Ma touch her inappropriately, yet she pointed out that it was very dark in the club.
[33] Ms. N.T. confirmed that her testimony in chief describing the four incidents of buttock grabbing detailed all the buttock-grabbing incidents at the reception she could recall. She also confirmed that she told the police that Mr. Ma had grabbed her buttocks “four to eight times”. She explained away the inconsistency by saying that he had continued to follow her around at the reception and that she could not remember exactly how many times he had grabbed her buttocks.
[34] Ms. N.T. testified that contrary to Mr. Tachdjian’s testimony, she was not in good spirits when she began speaking to him, but rather was quite upset due to Mr. Ma’s earlier behaviour.
[35] Mr. Brauti suggested that while Mr. Ma was asking Ms. N.T. to come home with him he slid his hand down from her waist onto her “hip/buttock area”… “where [his] fingers are on the hip and the heel of [his] hand is on the side of the buttock. Did that happen?” She answered: “Throughout the night, yes”.
[36] She also agreed that when Mr. Ma interrupted her discussion with Mr. Tachdjian shortly before he left the party “it was a hand to the hip, and then a kiss on the cheek”.
[37] Ms. N.T. denied that she asked Mr. Tachdjian to be a witness on her behalf. Rather, she insisted that he offered her his card after seeing her interaction with Mr. Ma.
[38] Within days of the incident Ms. N.T. contacted civil counsel. She testified that she was unaware of the details of what steps her civil counsel was taking on her behalf yet vehemently and categorically denied that her counsel had made an offer to the company to the effect that Ms. N.T. would not testify in exchange for payment to her.
[39] On November 21st Ms. N.T. obtained, and presented to her employer, a doctor’s note saying that she could not come into work.
[40] In response, her employer allowed her to work from home until January 5, 2023.
[41] As January 5th approached Ms. N.T. obtained a second doctor’s note saying that she could not return to work until February 5th. The company extended her leave.
[42] As her return-to-work deadline was approaching, on January 17th she asked the company to allow her to work from home indefinitely. On January 19th the company told her that she was expected back in the office on February 6, 2023.
[43] On January 26, 2023, Ms. N.T. went to the police for the first time. She asked the police if there was anything they could do to keep her from having to return to work on February 6th.
[44] She agreed that she told the police that she “was drunk” when she left the party. She refused to adopt that statement as true. Rather, she said she was “tipsy”.
(f) Mr. Ma’s Testimony in Chief
[45] Mr. Ma was born in China. At the time of the alleged incident, and his testimony, he was separated with three children.
[46] He obtained a bachelor’s degree in 2000 from a university in Shenyang, China and came to Canada in 2003. He received an MBA from the University of Toronto in 2007.
[47] He became the chief operating officer at Hanson College in 2014 and three months later became its CEO. He also owns a 10% interest in the company.
[48] He had nothing to do with the hiring of Ms. N.T. and she did not report to him on the job. He would run into her in passing at the office three or four times a week. He was not attracted to her. Prior to the event in question, he considered her a young well-presented employee. He had had nothing to do with Ms. N.T. having been chosen to attend the conference. Before seeing her there he did not know she would be attending.
[49] At approximately 6 pm on the evening in question Mr. Ma went to the Shangri-La hotel where he consumed three alcoholic beverages before 9 pm when he made his way directly to the El-Mocambo.
[50] He encountered Ms. N.T. on the second-floor dancefloor within 30 minutes of arriving. It was crowded. People were standing shoulder to shoulder.
[51] Ms. N.T. told him about the photo shoot, and they walked to the stage together. He gently held her back as he escorted her up the stairs to the stage. They took a spot while holding onto each other’s waists. Her cheek was touching his as they posed, and he began to experience a “warm and fuzzy” feeling. He told her she looked nice and that he was happy she was there. She said thank you and told him that she was happy he was there as well.
[52] Mr. Ma denied that he had a sexual encounter in mind. To him it was mere socializing with “a warm and fuzzy feeling”.
[53] When first asked if he grabbed her buttocks in his examination in chief he said “that would be very awkward” because of the presence of all his colleagues. He went on to say that he would never grab anyone’s buttocks in front of those people, or indeed “generally in any event”.
[54] The two of them made their way to the bar together. She was always on his right side, and he continually had his arm around her waist for about an hour. He had a sense that “something” was happening between them which he again described as “just a warm and fuzzy feeling” which continued over the course of the evening. He described her attitude as “happy, warm and soft”. At no time did she resist his touching her.
[55] Once at the bar she remained close at his side. Almost all the five or six invited Hanson staff were there as well.
[56] When asked in chief whether he grabbed her buttocks on the way to the bar he said: “no, I don’t recall. Not at all”. When asked if he grabbed her buttocks at the bar he said: “she was in my arm all this time”. When asked if he tried to kiss her on the mouth in front of all these people he said: “I don’t recall”. He then denied that she pushed him away and denied kissing her at the bar.
[57] Continuing to feel “a bit of a warm and fuzzy feeling” he told her that he really liked her and that she was beautiful.
[58] After consuming one alcoholic beverage at the El Mocambo, Mr. Ma decided to leave, and he called an Uber. He then approached Ms. N.T. and pulled her away from the discussion she was having with Mr. Tachdjian so he could speak to her in private. He asked her if she was interested in having another drink with him at his condo. Mr. Ma conceded that during this invitation it was “a possibility” that the hand around her waist might have “slipped down to the side of her hip/right buttock”.
[59] Ms. N.T. declined his invitation, pointing out that he was married with children. He corrected her misapprehension and she still said no. He then kissed her on the cheek, “as he would do with other clients, men or women” and said goodbye.
[60] Over the next two days he regretted his having invited her back to his condo, given that he was her “manager”. He then sent the electronic message apology to Ms. N.T. He learned two or three days later by HR that Ms. N.T. had lodged a complaint against him.
[61] Ms. N.T. was eventually laid off along with several other employees due to a significant change in government policy. Ms. N.T. was given a more generous severance package than her fellow employees. Mr. Ma also learned that there had been contact between Ms. N.T.’s lawyer and counsel for the company.
(g) The Cross-Examination of Mr. Ma
[62] Throughout her period of employment prior to the reception Ms. N.T. had never said or done anything to lead Mr. Ma to believe she was interested in him physically or romantically.
[63] Mr. Ma believed that it would take six or seven cocktails before his judgment or demeanour might be adversely affected.
[64] Mr. Ma testified that when he descended from the stage, he had his right arm around Ms. N.T.’s waist and his left hand on the railing of the same set of stairs they used to climb up to the stage. When shown a photograph of the stairs which had no handrail on the left while descending Mr. Ma continued to insist that his recollection was accurate and pointed out that there was no evidence as to the date of the taking of the photograph.[1]
[65] He admitted that while he had his arm around her waist his hand could have slipped below her waist to her hip. He said he did not intend to touch her buttocks and did not recall touching her buttocks. He added that that was not something he would do.
[66] He denied that his kiss to Ms. N.T.’s cheek was in any way carnal. He was merely saying goodbye. He recalled also kissing his colleague, Greg, on the cheek before departing. He admitted that he did not ask Ms. N.T.’s permission for the kiss.
[67] As concerns his having his hands on Ms. N.T. over the course of the evening he testified that he believed “things were okay” because she was smiling a lot and never exhibited any discomfort. They were having a good conversation. While she never expressly said it was okay, she never said that it wasn’t.
[68] He again denied that he invited Ms. N.T. home with him for any reason other than to continue their conversation. He was not planning to be intimate with her.
[69] He sent the electronic message to her not because he thought he had made her uncomfortable, but rather because he felt bad for having blurred the line between their professional relationship and any personal relationship that may have begun that evening. He was not checking to see what she remembered, nor did he send the message because he was concerned that she would tell someone.
C. Analysing the Trial Evidence
(a) The Credibility of the Witnesses
[70] I found that Mr. Tachdjian, a completely independent witness, was doing his best to recount his observations, without bias or exaggeration. He readily conceded that he might be wrong about some of what he recalled seeing.
[71] Where his evidence differs from that of either Mr. Ma or Ms. N.T., I prefer Mr. Tachdjian’s testimony.
[72] As concerns Mr. Ma, he was at times combative under cross-examination. He was overly reluctant to admit to any uncertainty. His answers regarding alcohol’s effect on him I found disingenuous. He was too quick to rely on how he would normally behave, rather than simply recount what had in fact occurred. When asked whether he intentionally touched Ms. N.T.’s buttocks, rather than simply denying it, his first answer was to point out just how awkward or embarrassing that would have been.
[73] As a result, I do not accept his testimony on the cardinal issue as to whether he ever intentionally grabbed Ms. N.T.’s buttocks.
[74] As concerns Ms. N.T., I have significant concerns about her reliability and credibility on matters that are not corroborated.[2] There are significant differences between her testimony and that of Mr. Tachdjian. For example, according to him she was happy and friendly when they first met. According to her she was already uncomfortable and distraught. He says that she told him that Mr. Ma had done this sort of thing once or twice on other occasions. She denies saying this and admits that if she did it wasn’t true. Her account of their conversation bears little resemblance to his account.
[75] Her unwillingness to concede that she felt drunk when she left the reception (as she clearly told the police in so many words) counts heavily against her credibility.
[76] She told the police that Mr. Ma had grabbed her buttocks four to eight times. Yet she could only detail four of those incidents at trial.
[77] She clearly had at least one ulterior motive in going to the police. She was unhappy with the way the company’s investigation was going and wanted the police to intervene on her behalf as concerns the company’s insistence that she return to the office.[3]
[78] She testified that she did not know the details of her civil counsel’s course of action, yet she vehemently denied that they had offered to have her not testify if they paid her. These two assertions cannot both be true.
(b) Findings of Fact
[79] There are, in my view, four principal issues to decide in this case:
- Did Mr. Ma intentionally grab Ms. N.T.’s buttocks? (That he put his hand around her waist, touched her hip and kissed her on the cheek is admitted by Mr. Ma.)
- Did Mr. Ma kiss her, or attempt to kiss her on the lips?
- Did Mr. Ma kiss her on the neck?
- Has the Crown proven beyond a reasonable doubt that, whatever touching occurred, Ms. N.T. did not consent?
(i) Did Mr. Ma intentionally grab Ms. N.T.’s buttocks?
[80] Mr. Ma denies that he did, and Ms. N.T. insists that he did. While Mr. Tachdjian testified that he saw Mr. Ma move his hand down from her waist to her buttock, he also testified that he saw him kiss her repeatedly on the neck, which Ms. N.T. does not allege. He admitted that he could be wrong about this observation. Add to that his ambiguous answer to the compound question set out above in paragraph 14 and I am left unconvinced that Mr. Tachdjian in fact saw Mr. Ma touch Ms. N.T.’s buttocks.
[81] Given my comments about the credibility of the two principal protagonists, I do not find as a fact that Mr. Ma intentionally touched Ms. N.T.’s buttocks.
(ii) Did Mr. Ma kiss her or attempt to kiss her on the lips?
[82] Only Ms. N.T. says this occurred. Given my doubts about her credibility generally, I do not accept that this occurred.
(iii) Did Mr. Ma kiss her on the neck?
[83] Only Mr. Tachdjian made this observation, and he conceded that he might be mistaken. I do not accept that this occurred.
(iv) Has the Crown proven that Ms. N.T. did not consent to being touched?
[84] Ms. N.T. testified that she did not welcome Mr. Ma’s touch. According to her she at no time consented to any of his physical contact. Because I do not accept any of her testimony that is not corroborated, I must examine the rest of the evidence to see if there is circumstantial evidence that speaks to this issue.
[85] Ms. Serban points to the electronic message Mr. Ma sent Ms. N.T. She argues that it constitutes an apology for having sexually assaulted Ms. N.T. and reveals a consciousness of guilt on the part of Mr. Ma.
[86] I do not share Ms. Serban’s view of the text message. It is ambiguous at best. It is equally consistent with Mr. Ma’s explanation for having composed and delivered it.
[87] The balance of the independent circumstantial evidence is conflicting. Mr. Tachdjian described Ms. N.T. as happy when he first encountered her, even though according to her, Mr. Ma had been sexually assaulting her throughout the evening. While it is true that Mr. Tachdjian observed her in considerable distress after her last encounter with Mr. Ma, that may well have been because of Mr. Ma’s bold, impertinent, and improper proposition that she, his employee, come home with him. This would have been reason enough for her to be upset.
[88] No other party goers were called as witnesses to Ms. N.T.’s demeanour that night.
[89] The Crown has not proven a lack of consent.
D. Conclusion
[90] This is not simply a matter of choosing whose evidence I prefer, or whose evidence is more likely true. Rather, it is a criminal case, and the Crown must convince me beyond a reasonable doubt that Ms. N.T. was sexually assaulted on the evening of November 14, 2022, as alleged in the information. One of the essential elements that the Crown has the burden of establishing beyond a reasonable doubt is Ms. N.T.’s lack of consent. See R. v. Ewanchuk, [1999] SCJ No. 10.
[91] After reviewing all the evidence in this case, not only am I left unsure as to what occurred that evening, I find that the Crown has not proven beyond a reasonable doubt a lack of consent to Mr. Ma’s touching.
[92] Ms. Serban argues that Mr. Ma’s testimony is an admission of sexual assault. Had I found that the Crown had proven a lack of consent beyond a reasonable doubt, this question would have had to be answered, but in the circumstances, it does not.
[93] The charge is thus dismissed.
Released on January 10, 2025
Justice Russell Silverstein
Footnotes
[1] Mr. Ma was correct as concerns the absence of evidence as to the date the photo was taken.
[2] While the law no longer requires corroboration of Ms. N.T.’s testimony, in a case where the complainant’s allegations under oath are met with a firm denial from the accused under oath the absence of corroboration of the complainant’s testimony is of some moment. See R. v. D.A., 2018 ONCA 612; R. v. H.P., 2020 ONCA 419.
[3] Mr. Brauti’s cross-examination on this issue at least implicitly raised an allegation of recent fabrication to the police. No rebuttal evidence was led by the Crown as to what exactly Ms. N.T. complained of when, immediately after the reception, she complained to HR. In my view such evidence would have been admissible.