Court File and Parties

Court File No.: SCA 7/25 Date: 2025-08-05

Ontario Superior Court of Justice

Between:

His Majesty The King — and — Shou Yi Ma

Counsel:

• Darren J. Hogan, for the Crown, appellant
• Peter Brauti and Peter Ketcheson, for the accused, respondent

Heard: June 23, 2025

Before: K.L. Campbell J.

Reasons for Judgment

[Summary Conviction Appeal]

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

A. Overview

[1] The accused, respondent, 47-year-old, Shou Yi Ma, was tried by His Honour, Mr. Justice R. Silverstein of the Ontario Court of Justice, on a charge of "sexual assault" against a 27-year-old female complainant, N.T. The offence was alleged to have taken place on the evening of November 14, 2022, at a downtown Toronto night club. The Crown elected to proceed by way of summary conviction. The accused pled not guilty.

[2] Essentially, the Crown alleged that, the complainant, who worked for the accused, attended an annual three-day educational conference at a downtown Toronto hotel, together with many other individuals (approximately 300 people), including the accused. The Crown alleged that, during a social aspect of the conference, in the evening, at the night club, the accused made a number of clumsy advances toward the complainant, grabbing her buttocks, over her clothing, on a number of occasions, and kissing her neck or cheek. After consuming an abundance of alcoholic beverages, and near the end of the evening, the accused allegedly invited the complainant back to his residence, but the complainant declined. The Crown contended that, in grabbing the complainant's buttocks and kissing her without her consent, the accused sexually assaulted the complainant.

[3] The accused testified in his own defence and denied sexually assaulting the complainant. While he admitted that he had put his arm around the complainant's waist a number of times during their benign physical interactions during the evening, he denied ever grabbing her buttocks. He explained that he only ever kissed her on her cheek, while they were saying "good-bye" to each other, when she was leaving the event at the end of the evening, as he would anyone. He suggested that she had clearly consented to the other incidental physical contact between them that evening, in that she had never resisted him putting his arm around her waist, nor had she ever physically or verbally objected to his efforts to kiss her. Indeed, the accused maintained that they had a nice, "warm and fuzzy" relationship throughout the evening. The accused did ultimately admit, however, that his alcohol-fueled, romantic overtures toward the complainant were inappropriate given their professional, working relationship and given the contextual backdrop of the educational conference.

[4] The complainant did not initially complain about the alleged sexual misconduct of the accused. However, she explained that in mid-November of 2022 she complained to the "Human Resources" department about what had happened to her, and she said that she felt uncomfortable coming to work. In the result, while Human Resources investigated her complaint, she was permitted to work from home for a few months. Eventually, however, and notwithstanding her objections, she was told she had to physically return to the workplace in early February of 2023. The complainant went to the police about this matter on January 26, 2023, hoping that they could help her avoid having to physically return to the workplace.

[5] The trial of this matter started on September 5, 2024 and continued over several days, ultimately concluding on January 10, 2025. The Crown called two witnesses – the complainant and an independent third party – while the accused was the single witness called by the defence. On January 10, 2025, the trial judge delivered some 18 pages of written Reasons for Judgment, concluding that the accused was not guilty of the alleged offence. See: R. v. Ma, 2025 ONCJ 31.

[6] The Crown now appeals against this dismissal of the information, pursuant to s. 813(b) of the Criminal Code, R.S.C. 1985, chap. C-46.

B. The Nature of the Crown Appeal

[7] On this appeal, the Crown primarily contends that Mr. Justice Silverstein erred in his assessment of the testimony of the complainant by "partitioning it" and examining it in a "piecemeal fashion," rather than examining it as a whole; and that the trial judge erred in treating the complainant like she was a "discreditable" witness, seeking corroboration for her evidence and, thereby, doing an "end-run" around the legal rule that corroboration is not required in sexual assault cases.

[8] The Crown also alleges that the trial judge erred in failing to consider the evidence of the accused in assessing the evidence on the issue of "consent" and in determining whether the accused had admitted committing a sexual assault against the complainant.

[9] Finally, the Crown contends that Mr. Justice Silverstein erred in reaching an "unreasonable verdict" in light of the evidence that, as a whole, was "irrefutable" in proving that the respondent was guilty of sexually assaulting the complainant.

[10] For the reasons outlined below, I reject each of these arguments by the Crown. In my view, based on all of the evidence in this case, and having the appropriate degree of deference for the factual conclusions reached by the experienced and learned trial judge, Mr. Justice Silverstein made none of the legal errors now alleged by the Crown. In the result, the appeal by the Crown must be dismissed.

C. The Reasons for Judgment of the Trial Judge

[11] As I understand the lengthy and thoughtful Reasons for Judgment prepared by Mr. Justice Silverstein, he drew all of the following conclusions about the evidence in this case:

(1) The Evidence of the Independent Witness: The trial judge concluded that the independent third-party witness was "doing his best" to "recount his observations, without exaggeration or bias," and that, where his testimony conflicted with that of the complainant or the accused, the trial judge preferred the testimony of the independent witness [at paras. 70-71];

(2) The Evidence of the Accused: The trial judge concluded that the accused was, at times, "combative" in his evidence and "overly reluctant" to admit to any uncertainty, and some of his evidence was "disingenuous" and, accordingly, the trial judge could not accept his evidence on the "cardinal issue" of whether the accused ever intentionally grabbed the buttocks of the complainant [at paras. 72-73];

(3) The Evidence of the Complainant: The trial judge expressed "significant concerns" about the "reliability and credibility" of the testimony of the complainant "on matters that were not corroborated" – while immediately expressly acknowledging that corroboration was "no longer" legally required [at paras. 74-78, 84];

(4) The Accused Did Not Intentionally Touch the Buttocks of the Complainant: The trial judge indicated that he did not find as a fact that the accused intentionally touched the buttocks of the complainant. Indeed, the trial judge indicated that, given his "doubts" about the credibility of the complainant, he could not accept that the accused ever intentionally touched the buttocks of the complainant [at paras. 81-83];

(5) No Corroborative Evidence – No Lack of Consent: The trial judge concluded that there was no other evidence corroborating the trial testimony of the complainant that she did "not welcome" the touch of the accused, or "consent" to his physical contact with her and, since the trial judge did not accept any of her testimony that was not corroborated, the trial judge concluded that the Crown had not proven a "lack of consent" on the part of the complainant [at paras. 84-89];

(6) Crown Had the Burden of Proof – Beyond a Reasonable Doubt: The trial judge concluded that, since this was a "criminal case," this was not simply a matter of "choosing whose evidence" he preferred, or whose evidence was "more likely true," but rather the Crown was obliged to convince him "beyond a reasonable doubt" that the accused sexually assaulted the complainant. This requirement included the essential element of the complainant's alleged "lack of consent" to the alleged touching of her by the accused [at para. 90].

(7) Crown Had Not Met the Burden of Proof: The trial judge concluded that, after reviewing "all of the evidence in this case," he was not only "left unsure" about "what occurred" on the evening of November 14, 2022, he was satisfied that the Crown had "not proven beyond a reasonable doubt a lack of consent" on the part of the complainant to the touching by the accused. Accordingly, the trial judge dismissed the charge against the accused [at paras. 91-93].

D. Analysis

1. The Testimony of the Complainant

[12] I disagree with the Crown's main suggestion that the trial judge erred in his consideration of the testimony of the complainant. Mr. Justice Silverstein neither "partitioned" her evidence in his Reasons for Judgment, nor did he consider it in a "piecemeal fashion." Rather, he considered it as a whole, in the context of the case as a whole. However, it is worthwhile recalling that evidence can only be expressly considered a piece at a time – a proper analysis of the evidence simply cannot be conducted "all at once," by anyone.

[13] In his specific consideration of the testimony of the complainant, the trial judge expressly noted: (1) there are "significant differences" between the testimony of the complainant and the testimony of the independent third-party witness, and he provided a number of specific examples of these differences; (2) the "unwillingness" of the complainant to concede that she felt drunk when she left the night club that night, despite the fact that she clearly said that to the police when she first complained about the alleged events; (3) the complainant had told the police that the accused had grabbed her buttocks that night four to eight times, but she could only detail four of those alleged incidents at trial; (4) the complainant had at least one "ulterior motive" in going to the police, in that she was unhappy with the way the internal company Human Resources investigation was going, and she wanted the police to intervene on her behalf about the employer's insistence that she return to the workplace; and (5) the complainant denied that she knew the details of her civil counsel's course of action with her employer, yet she vehemently denied that they had offered to have the complainant not testify if they paid her $250,000 [at paras. 74-78]. These were all facts that the trial judge was entitled to consider in properly assessing the testimony of the complainant.

[14] The trial judge clearly indicated that, given his concerns about the complainant's reliability and credibility, he needed to look for any corroborative evidence regarding her testimony. He found none. The trial judge was factually and legally entitled to make that assessment of the testimony of the complainant. Mr. Justice Silverstein expressly noted, in a conveniently located footnote in his Reasons for Judgment, that while there was "no longer" any legal requirement for "corroboration," the absence of any corroboration for the complainant's testimony may still be of some consequence. This makes perfect sense. Just as the Crown's case supporting a complainant's allegation of sexual assault may, in fact, be strengthened by the existence of supporting or corroborative evidence, the Crown's case may, in fact, be weakened by the complete absence of any corroborative evidence. The evidentiary role to be played by any potentially supporting or confirming evidence (or its absence) depends upon the circumstances of each individual case. See: R. v. Camp (1977), 17 O.R. (2d) 99, 36 C.C.C. (2d) 511 (C.A.), at p. 521; R. v. Boss (1988), 46 C.C.C. (3d) 523, 68 C.R. (3d) 123 (Ont.C.A.), at pp. 8-11; R. v. Saulnier (1989), 89 N.S.R. (2d) 208, 48 C.C.C. (3d) 301 (C.A.), at pp. 307-308; R. v. D.G.H. (1990), 88 Sask.R. 115, [1990] 7744 (C.A.), at paras. 5-7; R. v. K.V. (1991), 68 C.C.C. (3d) 18 (B.C.C.A.), at paras. 19-38; R. v. P.L.F.N. (1999), 138 Man.R. (2d) 205, 138 C.C.C. (3d) 49 (C.A.), at paras. 28-31; R. v. Edmondson, 2005 SKCA 51, 196 C.C.C. (3d) 164, at paras. 46-57; R. v. Helsinga, 2014 ONSC 3180, at para. 41; R. v. D.A., 2018 ONCA 612, at paras. 17-20; R. v. H.P., 2022 ONCA 419, at paras. 65-71.

[15] The trial judge in the present case, however, never remotely suggested that there was a legal requirement for corroboration. Of course, s. 274 of the Criminal Code, expressly states that, if an accused is charged with any number of listed offences (including sexual assault) "no corroboration is required for a conviction" and the trial judge "shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration." The trial judge never suggested otherwise. However, while acknowledging as he did, that corroboration was not legally required for a conviction for sexual assault, it was open to the trial judge, in assessing the testimony of the complainant, to look for any potential confirming evidence. Mr. Justice Silverstein correctly concluded that there was no corroborative evidence confirming or supporting the testimony of the complainant. In my view, he did not err in so doing.

[16] The Crown also contends that the trial judge effectively treated the complainant like a "discreditable" witness, legally requiring a special cautionary warning. I disagree. The trial judge never suggested that the complainant was a "disreputable" witness that might require or justify a Vetrovec-style cautionary approach to her testimony. The explanation for this is obvious – the complainant was clearly not such a witness. However, that does not mean that it was wrong for the trial judge to search for any corroborative evidence supporting the testimony of the complainant. The trial judge simply concluded that, in all of the circumstances of this case, and especially in light of his expressed concerns regarding the credibility and reliability of the complainant, it was wise for him to consider any potential supporting evidence of her testimony. I see no basis to now interfere with his sensible decision to do so. See: R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811, 67 C.C.C. (2d) 1, at pp. 816-817, 830-832; R. v. Chahal, 2018 ABCA 132, 361 C.C.C. (3d) 39, at paras. 47-55; R. v. K.R.R., 2020 ABCA 475, 398 C.C.C. (3d) 259, at paras. 34-58; R. v. Tubic, 2024 ONCA 833, at paras. 27-28.

2. The Testimony of the Accused

[17] The Crown argues that the trial judge erred in failing to consider the evidence of the accused in considering the issue of "consent" and in determining whether the accused had admitted committing a sexual assault against the complainant. I disagree.

[18] While the accused never agreed that he had intentionally grabbed the buttocks of the complainant, he did testify that she had consented to their other incidental physical contact throughout their "warm and fuzzy" evening together.

[19] In my view, even if the trial judge had, in fact, wholly ignored the testimony of the accused in relation to the question of consent (which I do not accept), consideration of this testimony simply could not logically have ever led the trial judge to any result different than the one he reached in his Reasons for Judgment – namely, that the Crown had failed to prove, beyond a reasonable doubt, that the complainant had not consented to any of their physical conduct on the evening in question (especially given that he was not satisfied that the accused ever intentionally touched the buttocks of the complainant) [at paras. 81-93].

[20] In my view, the accused simply never gave any testimony helpful to the Crown, suggesting that the complainant did not consent to any physical activity between them. Quite to the contrary. See, generally: R. v. Ewanchuk, [1999] 1 S.C.R. 330, 131 C.C.C. (3d) 481; R. v. Cornejo (2003), 68 O.R. (3d) 117, 181 C.C.C. (3d) 206, leave denied, [2004] 3 S.C.R. vii; R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60; R. v. A.(J.), 2011 SCC 28, [2011] 2 S.C.R. 440; R. v. Flaviano, 2013 ABCA 219, 309 C.C.C. (3d) 163, at paras. 40-41, affirmed, 2014 SCC 14, [2014] 1 S.C.R. 270; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1; R. v. A.E., 2022 SCC 4, [2022] 1 S.C.R. 20; R. v. Kirkpatrick, 2022 SCC 33, [2022] 2 S.C.R. 480. Accordingly, this ground of appeal must be rejected.

3. The Unreasonable Verdict Argument

[21] While not the main focus of the appeal, the Crown also alleged that the trial judge, in acquitting the accused of the charge of sexual assault, had reached an "unreasonable verdict." More specifically, the Crown alleged that, even on the facts "most favourable" to the accused, he was guilty of having sexually assaulted the complainant, and that "no properly instructed jurist, correctly viewing the whole of the evidence," could fail to find the accused guilty of this offence. The Crown argued that, in the result, the acquittal of the accused was "unreasonable" and should now result in a "conviction" or a "new trial." I have no hesitation rejecting this argument.

[22] I appreciate that the Crown has a broader right of appeal under s. 813(b) of the Criminal Code in relation to summary conviction matters, than is the case in relation to Crown appeals under s. 676(1) of the Criminal Code for indictable matters. See, for example: R. v. Century 21 Ramos Realty Inc. and Ramos (1987), 58 O.R. (2d) 737, 37 D.L.R. (4th) 649 (C.A.), at pp. 768-769; R. v. Multitech Warehouse (Manitoba) Direct Inc. (1995), 102 Man.R. (2d) 141, 100 C.C.C. (3d) 153 (C.A.), at p. 149; R. v. Labadie (2011), 105 O.R. (3d) 98, 275 C.C.C. (3d) 75 (C.A.), at paras. 16-17, 34-61; R. v. Singh, 2015 ONSC 5708, at para. 6; R. v. Balogun-Jubril, 2016 ONCA 199, 94 M.V.R. (6th) 1, at para. 9; R. v. Abramoff, 2018 SKCA 21, 359 C.C.C. (3d) 386, at paras. 18-21.

[23] However, this broader right of appeal by the Crown under s. 813(b) of the Code does not permit summary conviction appeal courts to, essentially, retry the case and simply substitute their own findings of fact for those made by the trial judge. Rather, to provide for the necessary deference to the verdicts of trial courts, findings of fact may only be set aside if the reasons of the trial judge reveal the presence of some "palpable and overriding error." See: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-37; R. v. Tiffin, 2008 ONCA 306, 232 C.C.C. (3d) 303, at paras. 22, 36, 41-43; R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at paras. 71-72; R. v. Carrano, 2011 ONSC 7718, [2011] O.J. No. 603, at para. 4; R. v. O'Meara, 2012 ONCA 420, 284 C.C.C. (3d) 567, at paras. 36-38; R. v. David, 2014 ONSC 5049, at paras. 13-18.

[24] It is important to recall that the Crown is always obliged, in cases like the present one, to overcome the presumption of innocence and prove the alleged guilt of the accused – in this case for the offence of sexual assault – beyond a reasonable doubt. The application of that fundamental legal rule in each individual judge-alone case is for the trial judge. It is difficult to imagine a case where, without ever seeing the complainant or the accused testify, and without having any of the other advantages enjoyed by a trial judge, another judge, on the basis of a sterile written record on summary conviction appeal, might conclude that, contrary to the conclusion reached by the trial judge on this fundamental issue, the accused must, as a matter of fact and/or law, be convicted of the alleged offence. See: R. v. Sunbeam Corp., [1969] S.C.R. 221, [1969] C.C.C. 189, at pp. 228-238; R. v. Lampard, [1969] S.C.R. 373, [1969] 3 C.C.C. 249, at pp. 378-382; R. v. Schuldt, [1985] 2 S.C.R. 592, 23 C.C.C. (3d) 225, at pp. 604-611; R. v. Powell (2010), 99 O.R. (3d) 671, 251 C.C.C. (3d) 475 (C.A.), at paras. 4-5, 24-34, 55-56; R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at paras. 10-11, 13, 30-31; R. v. Hodgson, 2024 SCC 25, 438 C.C.C. (3d) 315, at paras. 19-36.

[25] In this regard, it is helpful to recall the comments of Cromwell J., delivering the judgment of the unanimous Supreme Court of Canada, in R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25-27, when he stated:

An acquittal (absent some fact or element on which the accused bears the burden of proof) is not a finding of fact but instead a conclusion that the standard of persuasion beyond a reasonable doubt has not been met. Moreover, as pointed out in R. v. Lifchus, a reasonable doubt is logically derived from the evidence or absence of evidence. Juries are properly so instructed and told that they may accept some, all or none of a witness's evidence …

The principle that it is an error of law to make a finding of fact for which there is no supporting evidence does not, in general, apply to a decision to acquit based on a reasonable doubt. As Binnie J. put it in R. v. Walker,

A major difference between the position of the Crown and the accused in a criminal trial, of course, is that the accused benefits from the presumption of innocence . . . . [W]hereas a conviction requires the prosecution to establish each of the factual elements of the offence beyond a reasonable doubt, no such requirement applies to an acquittal which, unlike a conviction, can rest simply on the absence of proof.

The point was expressed very clearly in R. v. Biniaris, "as a matter of law, the concept of 'unreasonable acquittal' is incompatible with the presumption of innocence and the burden which rests on the prosecution to prove its case beyond a reasonable doubt."

[emphasis added – citations omitted]

[26] In any event, I certainly have no intention of now interfering with the perfectly reasonable verdict that was reached by the trial judge in this case. In my view, the trial judge properly instructed himself legally, and he committed no error (of fact or law) in his assessment of the evidence, or in ultimately concluding that the Crown had not satisfied him beyond a reasonable doubt that the accused was guilty of the alleged offence of sexual assault. In short, the verdict reached by Mr. Justice Silverstein in this regard was not unreasonable, is free from any legal error, and I can see no proper legal basis to now interfere with it.

E. Conclusion

[27] For these reasons, the summary conviction appeal by the Crown is dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: August 5, 2025