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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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

DATE: 2023 05 31 COURT FILE No.: 20-45003249 Metro North, Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Solomon NNADEDE

Before: Justice Cidalia C. G. Faria

Heard on: January 5, November 9, 10, 16, 2022, March 28, 2023 Oral Reasons: May 23, 2023 Written Reasons for Judgment released: May 31, 2023

Counsel: Joshua Tupper, Glen Tucker, Imran Shaikh............................... counsel for the Crown Adetayo Akinyemi................................ counsel for the defendant Solomon NNADEDE

Faria J.:

I. OVERVIEW

1Solomon Nnadede is charged with sexually assaulting MD between February 2019 and November 2019. He was arrested in May 2020 when police were called regarding a physical altercation and the allegations came to light. The trial began before me on January 5, 2022, and spanned 14 months. [1]

2The allegations extended over a period of 9 months. MD testified Mr. Nnadede forced vaginal penetration three times, described several incidents when he touched her sexually without her consent, and once masturbated in front of her. She testified that after numerous attempts to make him stop sexually assaulting her, she gave up and “just let him” perform sexual acts on her thereafter.

3Mr. Nnadede testified none of these events happened. He testified he had an “understanding” with MD about sex and he only ever had consensual sex with her.

4The only issue is consent and the case turns on credibility.

5The Crown submits the court should accept the evidence of MD. He submits she was detailed, specific, nuanced, measured, and explained her compromised circum­stances and mental state. He submits she was credible, reliable, and unshaken on the core of her testimony.

6The Defence submits MD was inconsistent, is not a credible witness and had motives to fabricate the allegations. He submits the court should accept Mr. Nnadede’s assertion he did not sexually assault MD and acquit him.

7I have brief oral reasons of my analysis on May 23, 2023. These are my fulsome written reasons.

II. EVIDENCE

A. The Crown’s Case

Background

8MD testified she met Mr. Nnadede in the fall of 2018, when she attended Church in Toronto where he was a Pastor. She was a 21-year-old Refugee Claimant living in Windsor at the time with a friend in Toronto with whom she stayed with every other weekend. In December 2018, the husband of a Church member passed away leaving his widow with children in need. When the Church asked for help, MD, who knew the children and the deceased, volunteered, and moved to Toronto to help the widow. During this time, she would speak to Pastor Nnadede, as she called him, when he would come by to check on the well-being of the widow.

9When the widow was evicted, Mr. Nnadede helped the two women, and the children move to a shelter. When the widow decided to move to Nova Scotia, she asked MD to go with her and MD agreed to.

10However, MD testified Pastor Nnadede told her he did not “see light in the journey”, and there was “darkness”, especially for her, if she moved to Nova Scotia and she should not go. When MD told him she had spent her savings, had no job and no where to stay, Mr. Nnadede “offered to help” until she “stabilized again.”

11When the widow was ready to leave, MD called Mr. Nnadede to ask if his offer was still on the table. He said yes and that she could stay with him until she could get herself a job and save first and last month’s rent to move to her own apartment.

12MD moved into an apartment on Queen Street in late January 2019. Mr. Nnadede was staying in this apartment while the woman who lived there, whom he knew, was visiting Nigeria. It had a large living room with a single bunkbed behind a couch where Mr. Nnadede slept. MD would sleep on an extra mattress on the floor by the couch.

Forced penetration #1 in the Queen Street apartment

13A few weeks after moving in, MD testified she was sleeping on her bed when around 3 or 4 a.m. she awoke to Mr. Nnadede rubbing her thighs. He had taken the blanket off her and when she asked him what he was doing, he told her he was trying to pet her to sleep. She told him to stop. She covered herself with the blanket. He touched her thigh again and asked about her day.

14A few nights later, MD testified she was sleeping on her mattress, lying on her right side facing the couch. Mr. Nnadede came, took the blanket off her, and lay naked behind her. She was wearing her nightgown which came up when he took the blanket off her. She was wearing panties and felt his penis on her bum. She asked him what he was doing, and he told her to keep calm and “it’s fine”. She said, “it’s not fine”. She demonstrated how he had her left hand/arm up by the couch with one hand and she was lying on her right hand/arm. With his other hand, Mr. Nnadede pulled down her panties and “before I could fight my way, he was already inside of me”. She was crying and saying “I don’t want this. Can you please stop this. This is unfair.” After two- or three-minutes Mr. Nnadede pulled his penis from her vagina and ejaculated on her thigh as he was not wearing a condom. She described him as moaning and having fun. He went to the bathroom while she was crying. When he returned, she told him that he needed to clean her up, that it was “really disgusting”. He did not respond, and she went to bathe herself.

15The next day MD testified she asked him why he had done that and stated he “immediately started to apologize and said that wasn’t gonna happen again, that he was sorry. He gave no explanation as to why he did it. Well, he just straight up apologized”. She “saw the genuineness in his eyes. So I just told him like I would appreciate that he doesn’t repeat itself” and “he said he wasn’t gonna repeat itself again, so we just left it at that.”

16When asked if there were any other incidents at the Queen Street apartment, MD testified “Yes. Another – no penetration, but of course he did come again in the middle of the night, took off my blanket again and was touching my thigh again”. She could not remember exactly how long after the forced penetration it was, though she thought “maybe a week”. On that occasion, she “jumped up immediately” and remembered she “couldn’t sleep that night and was vigilant, a vigilante job for me that night”.

Forced penetration #2 in the Jane Street apartment

17The original occupant of the Queen Street apartment advised Mr. Nnadede she was returning early. They had to move. MD still had no job. They needed a new place and MD helped to find one.

18Mr. Nnadede rented and paid for a two-bedroom apartment on Jane Street starting March 1, 2019. MD moved in while Mr. Nnadede stayed at the Queen Street location. The primary bedroom was large enough for both a king size and a queen size mattress, and they had two separate queen size mattresses there. MD’s was closer to the door and Mr. Nnadede’s was farther in. The second bedroom was rented to a student.

19“All through March and April things were fine cause he wasn’t there”. In May, when the student wasn’t around, one day, during the daytime while she was watching a movie on her phone, Mr. Nnadede came and sat behind her on the bed asking what movie she was watching. When she was explaining, he started “touching” her back. She stood up and said, “I thought we were done with this,” and she left the room.

20A few days later, MD testified she “was asleep when he came, and he kept on – he was touching me. I was terrified”. She told him “This shouldn’t be happening. Like, this isn’t fair. You are doing this all the time” and said “he told me straight up, he said: Well, if you can’t pay in cash, you should be able to pay in kind’ ” She responded “well, I didn’t ask you for help, you offered to help me.”

21MD testified she tried to get out of the room, but he was “too strong for me to handle” and then “before I knew it, he – was you know taking off my clothes while holding me with the other hand really hard, and I couldn’t fight my way out of it. So he forced his way in and this time he was on top of my chest”. “He had sex with me, he moaned and said ‘oh please I can’t help it. I’m full. I just need to I just need to let it out. I just need to let it out, please’ and he was touching my breast. I was crying, and I kept telling him to stop that. I don’t like this I want to stop.” He did not stop until he ejaculated on her legs. She lay in bed crying and he went to the washroom and then to the living room.

Forced penetration #3 at the Jane Street apartment

22MD testified that in late June or early July 2019 she was in her bedroom but does not remember exactly what she was doing. It was before Mr. Nnadede bought her a new cell phone. She stated he came into the bedroom and sat on her bum when she was lying chest down. When she asked what he was doing, he said he “was full”. When asked what that meant, she testified “he’s in a mood to like have sex”. She felt “I was just a sex object to him. So whenever he - he feels the urge to have sex, so he will come to me, so that’s what it meant to me”. She told him “Please no, not today. I can’t. I don’t want to.” She tried to get him off her back but couldn’t when she turned, he pulled her pants and then “he just did it again”.

23This lasted for “two, three minutes”. He was “enjoying the moment”. She was crying and asking him to stop. Mr. Nnadede continued until he “ejaculated again, as usual he would do it on my leg, on my thigh.” He said he was sorry and he was “really apologetic”. She then went to the washroom.

Additional sexual acts

24In addition to the two times MD testified Mr. Nnadede woke her by removing her blanket and touching her thighs, as well as touching her back when she was watching a movie, MD testified Mr. Nnadede also:

• Tried to kiss her when he told her he had fallen in love with her, wanted her to be his girlfriend and sleep in the same bed with her as his wife in Nigeria was aware of the situation and was not opposed. MD testified she refused his kiss saying “no” as he saw him as a father figure.
• Around November 2019, Mr. Nnadede came into the primary bedroom and masturbated to ejaculation in front of her.

Efforts to stop the assaults

25In addition to saying “no” at the time of the sexual touching, MD testified about various efforts she made to persuade Mr. Nnadede to stop sexually abusing her. Some examples of these efforts were:

• She testified she spoke to him about the incidents, and he promised he would not do it again.
• She would stop talking to him in the house and told him it had to stop.
• On one occasion, he was making advances and she picked up the bottle she was drinking from and threatened him not to take one more step.
• On another occasion, she slept with a pair of scissors under her pillow to protect herself.
• At another point, she moved into the other bedroom while the roommate was away and locked the door.
• She yelled at him to leave when he sneaked up on her
• When she started getting interviews for jobs, she told Mr. Nnadede she would soon “pay the normal rent” and “have that stop” so maybe that “would make him stop”. He said “ok” and that he was “sorry”.
• When she obtained a job as a tailor at Canada Goose and was paid during her training, she paid some of the bills in the hopes that the sexual abuse would stop.
• When Mr. Nnadede had taken one of her two mattresses and put it on top of his own as he wanted her to sleep in the same bed as him, she told him “I never agreed to having any sex with you. It has always been forcefully. And I will never sleep on the same bed with you”. She took the remaining mattress and put it in the living room.

26Some time in June or July 2019, MD testified they went to a phone shop together and when saw a cell phone she could not afford, she testified Mr. Nnadede offered to pay her monthly bill and she obtained the phone. Days later when he made further sexual advances, she asked him if he thought he could do that because he bought her a phone, if so, the phone was still within time to return, and she would return it. She testified Mr. Nnadede said “no”, but had she given any more thought to being his girlfriend, and she responded the answer was still “no.”

“Giving up”/No Consent

27After the 3rd forced penetration and the post phone advances, “at some point in June, July, when he came to me again, it was it was in the afternoon, so I gave up. I didn’t I didn’t bother fighting. I just let him have his way. I just let him have sex with me because I was just tired of fighting. Tired of crying and telling him to stop. I didn’t even fight it. I just said “oh, you do you wanna have sex, and I just opened my legs, I was tired of fighting, and nothing was changing so I just let it happen. “I had already given up”. She did not think about calling the authorities anymore.

28When asked if she thought about going to the police, MD testified that she had been in a shelter before and could not bear to go back as it affected her mentally - she would be in a “a dark space” when she was in a shelter. She testified “so, each time I had thought about calling the police I know the next thing will be for me to be taken to a shelter – The biggest part of it for me was that he helped me when I have no friend, or anyone to help me. He volunteered he has done so much into helping me. I couldn’t bring myself to calling the police”.

29When asked about her financial circumstances, she testified she was on social assistance, Ontario Works (OW) as of February 2019. She was trained as a tailor for four weeks for Canada Goose at minimum wage but did not pass the training and did not get the job. She continued on OW and received $733.00 plus $127.00 for a special diet amounting to $860 a month while she was with Mr. Nnadede and contributed when she could.

May 2, 2020

30On May 2, 2020, MD and Mr. Nnadede got into an argument about his not wanting to pay her phone bill. The altercation became physical, and MD called 911 alleging Mr. Nnadede had assaulted her.

31Police arrived and Officer Melissa Misiuda testified she met MD in the lobby of the building and was told the two parties were arguing about Mr. Nnadede not paying her phone bill when he struck her. The officer said she was told Mr. Nnadede struck MD and that he was having sex with MD without her consent. The Officer observed MD rubbing her right cheek but recalled MD having said she was struck on her left cheek. In cross-examination, the Officer did not agree MD had “switched” the allegation as MD had also said she hurt all over.

32Officer Misiuda testified when she told MD Mr. Nnadede would be arrested, MD did not want to co-operate and did not want to provide a statement. She was told the arrest was not her decision to make, but she could tell her views to an officer at the station.

33Officer Misiuda was not wearing a Body Worn Camera, she did not take note MD’s utterances verbatim, and was only paraphrasing the allegations. She escorted MD upstairs to gather her belongings, took her to the police station and then to a shelter.

B. The Defence Case

34Mr. Nnadede testified the events MD described never happened. He testified he never forced sexual intercourse on MD, and that they only ever had consensual sex.

35When asked about consent, Mr. Nnadede testified he understood MD had a right to say no to sex, but that “She never said no at any point and I forcibly do that, and the only time we said no to sex was when she’s on her monthly flow.”

36He agreed they did meet in the fall of 2018, when MD moved in with the widow of a friend of his. He did go to visit widow to console her and spoke to MD during those visits. He testified they talked about their backgrounds, their marital status, their education, and their status in Canada as Refugee claimants from Nigeria. MD was never asked about these conversations.

37His version of events then diverges from MD’s testimony.

38Mr. Nnadede testified after Christmas 2018, they “expressed interest in each other” and “continued to see each other”. At the beginning of January 2019 when he helped move the widow, her children and MD to a shelter, on that “very day”, they “agreed, had an understanding to have a relationship.”

39When the widow was to move Nova Scotia, he testified MD asked to move in with him at Queen Street and did so that very day of January 27, 2019. After meal and a shower on the very day she moved in, they had a “chat” “sitting on the couch” and discussed the “whole thing”. How MD did not have a job, and he would “assist” her “financially”. They “agreed to look for a bigger apartment” to have their “privacy” and their own “one room to stay together”.

An “understanding”

40Mr. Nnadede testified:

“We had an, understanding that we’ll had an open relationship because I was expecting my wife and kid and to come to join me soon, and then I would prefer – provide finance and then we have sex whenever I want to or whenever she want to.”

“Okay, I was financially responsible of the accommodation and food, and sometimes we want to make love, rather have sex, and she said, oh, I needed to send this money to some place for us to do this and that, and I do that, I will send the money, and then we’ll go ahead and do whatever we wanted to do.”

41He testified “he would not have allowed it” if she had just moved in to save first and last month’s rent and stated “I would have suggest giving her money to go and get a place, so that was not our understanding. She did not move in to stay with me to get a job or save for first and last. She moved to stay with me.”

42This “understanding” as evidence and its admissibility will be addressed in my analysis.

Allegation of forced penetration at Queen Street apartment

43Regarding the specific allegation of forced vaginal penetration in February 2019, Mr. Nnadede testified it “never happened.” He stated “It never happened. That’s not true. It did not happen. I was permanently on a night shift job with a company called Farmer Fresh. So I did not have – most times I come back from work about 4:30 a.m. And the job most time, was Monday to Sunday, when she was with me at that address. So that did not happen.”

Second and third allegations of forced penetration at Jane Street apartment

44Mr. Nnadede agreed MD moved into the Jane St. apartment first and he paid the rent while he remained at the Queen Street apartment.

45Once he moved into the Jane Street apartment, he testified they shared one room and one bed. He testified the two forced vaginal penetrations as described by MD

“did not happen. When we moved into that place, I only have my room, so she was – we we’re living now together in a room, and I have one single bed, and so we sleep together on the same bed. And so there was never a time I came forcibly on her bed or even while were on my bed. It never happened. We had an agreement. I would consent to whatever time we have sex.”

“That never happened because the house is a two-bedroom apartment, and I have a tenant- a student tenant in other room, and, and we live in the second room. So there was never a time where we have two different rooms.”

Additional sexual contact

46Regarding the lifting of MD’s blanket and touching her thigh, or petting her while she slept on two occasions, he testified “No, I did not – I can’t remember doing that”.

47He testified he did not masturbate in front of MD, stating “That it is not true, not at all. We lived in a, in a, in a one room, and – we have this understanding and we consent to do – have.”

48Regarding the conversation about becoming his girlfriend, Mr. Nnadede described the conversation differently. Firstly, that the “relationship” conversation occurred on the first day MD moved in, and secondly, that it was an “open” relationship rather than that of a girlfriend. He did refer to a kiss during that conversation.

Regarding “efforts to stop” the “sexual abuse”

49Mr. Nnadede did not testify that MD ever spoke to him about the specific sexual events she testified to.

50Mr. Nnadede testified they always communicated regularly and she never stopped speaking to him at any point. She never moved out of their shared room. They slept on the same bed. He never found any scissors under pillow when he cleaned the bed.

51Mr. Nnadede did not testify as to whether MD ever offered to pay rent or paid any of it, or if she paid some of the bills when she was training as a tailor for the Canada Goose job.

52Mr. Nnadede also testified:

• He never used the word love “because of the understanding we have was to be in an open relationship”
• MD bought her new cell phone herself. She followed him to the phone shop when he was paying his bill, saw it, and paid for it herself. As they were leaving she asked him to support her with the bill because she had a phone already and he agreed that he would whenever he was able to.
• The relationship ended on May 2, 2020, when they argued about his not paying her phone bill anymore. He testified MD threatened to use his credit card, and his bank card, because she had been using it to buy things online. He tried to record her, she grabbed his phone and smashed it and hit him and then called the police alleging he hit her. He testified MD called his wife in Nigeria asking for money and used his bank card after his arrest to pay her phone bill.

III. LEGAL PRINCIPLES

Onus / Presumption / Burden/ Reasonable Doubt

53As in every criminal case, the onus rests upon the Crown to prove guilt beyond a reasonable doubt which is inextricably linked to the presumption of innocence. The burden of proof rests with the prosecution throughout the trial and never shifts. Reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence. [2]

Elements

54The elements the prosecution must prove beyond a reasonable doubt pursuant to s. 271 of the Criminal Code are that:

(i) Mr. Nnadede touched MD directly or indirectly. (ii) His touching was intentional. (iii) The touching took place in circumstances of a sexual nature. (iv) MD did not consent to the sexual activity. (v) Mr. Nnadede knew MD did not consent to the sexual activity or was reckless or wilfully blind as to the lack of consent.

55Consent is defined as “the voluntary agreement of the complainant to engage in the sexual activity in question” s. 273.1(1). It is the conscious agreement of the complainant to engage in a particular sexual act and must be freely given. [3] Consent is on-going. It requires an ability to evaluate and decide on each and every sexual act in a particular encounter [4] and must be present at the time the sexual activity occurs. [5] Consent means the complainant in her mind wanted the sexual touching to take place. It must be linked to the sexual activity in question, which encompasses the specific physical sex act, the sexual nature of the activity, and the identity of the partner. [6]

56The absence of consent is to be determined solely based on the complainant’s “subjective internal state of mind” at the time that the assault occurred. [7] There is no consent if the complainant expresses, by words or conduct, a lack of agreement to engage in or to continue to engage in the activity. [8]

57A defendant may challenge the evidence that the complainant did not consent to the sexual activity by seeking to undermine the complainant’s version of events and by pointing to words or actions, before or during the incident, that raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. [9]

58The defendant may assert an honest but mistaken belief that the complainant communicated consent to being touched. Once raised, the Crown must refute the defence of mistake in order to prove the necessary mens rea for the offence. [10]

59Although it is the perspective of the defendant that is crucial to an assessment of the mens rea element of consent, the evidence must support a belief that the complainant effectively said ‘yes’ to engaging in each and every sexual act with the defendant. [11]

60A belief that silence, passivity or ambiguous conduct implies consent is no defence. [12] It is an error of law to assume that unless and until a woman says ‘no’, she has implicitly given her consent to any and all sexual activity. [13]

61In addition, s.273.2 provides that it is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where:

(a) the accused’s belief arose from the accused’s (ii) recklessness or wilful blindness; or (iii) any circumstance referred to in s. 265(3) or s. 273.1(2) or (3) in which no consent is obtained; (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant was consenting; or (c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

62Reasonable steps to ensure that there is consent must be taken before engaging in sexual activity. The defendant must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the defendant at the time.

Credibility and Reliability

63Assessing credibility and reliability is key in this case. Credibility relates to whether a witness is speaking the truth as she/he/they believes it to be. Reliability relates to the actual accuracy of the testimony. To determine this, I must consider the witness’ ability to accurately observe recall and recount the events at issue. A credible witness may give unreliable evidence. [14] Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt. [15] The credibility and reliability of a witness must be “tested in the light of all the other evidence presented”. [16]

64I must consider internal consistency, consistency with previous accounts, significance of any inconsistencies, a witness’ interest in the outcome of the case if any, and whether an account is inherently logical.

65I must also consider the circumstances of the observer, their recollection of events over time, the intentional or unintentional tainting by other sources of information, a witness’ mental capabilities and limitations if any, their level of sophistication, and to a lesser degree a witness’ testimonial demeanor.

66Inconsistencies must be addressed. They vary in their nature and importance. Some are minor, others are not. Some concern material issues, others are peripheral. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned. [9]

67The leading applicable case on credibility and guiding my analysis provides the following test: [17]

• First, if I accept Mr. Nnadede’s evidence, I must acquit him.
• Second, even if I do not accept Mr. Nnadede’s testimony, if it leaves me with a reasonable doubt, I must acquit him.
• Third, even if Mr. Nnadede‘s evidence does not raise a reasonable doubt, I have to consider all of the evidence to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offence.

68In assessing competing evidence, I cannot compare each account and decide which account I believe. [18] I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Moreover, I can accept some, all, or none of a witness’ evidence. Frailties and/or inconsistencies in a witness’ evidence do not necessarily mean their evidence should be rejected. [19]

69I also instruct myself that though Defence counsel played portions of MD’s statement to the police that contained prior consistent statements, I must disabuse my mind of those prior consistent statements. Saying the same thing repeatedly does not make it true. [20]

Motive to Fabricate

70As the Defence also raised the issue of motive, I instruct myself that the accused is not required to demonstrate the complainant had a motive to fabricate evidence. Nor does the absence of a motive to fabricate conclusively establish that a complainant is telling the truth. “The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility”. [21]

Misconceptions, Stereotypes and Myths

71I instruct myself not to approach the evidence with unwarranted assumptions as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not be the complainant of a sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say. There is no typical victim or typical assailant or typical situation or typical reaction. I caution myself thus so as not to reach any conclusions based on misconceptions or myths. [22]

IV. ANALYSIS

A. Assessment of MD's evidence

72MD testified Mr. Nnadede forced sexual intercourse three times and touched her sexually several times without her consent before she stopped fighting him and just “let him”.

73Much of MD’s narrative was not disputed by Mr. Nnadede. For instance:

• They met through the Church in the fall of 2018 when she volunteered to live with his widow friend. He helped her move to a shelter when the widow was evicted.
• In January 2019, MD did not have money, or a job, or a place to stay. She called him on the day she was to move with the widow asking if she could stay with him.
• MD moved into Mr. Nnadede’s Queen Street apartment on January 27, 2019.
• He offered to financially support her and did so.
• They had to move from the Queen Street apartment because the original tenant was returning.
• They had to find a new place for themselves
• MD moved into the Jane Street apartment first and Mr. Nnadede paid the rent. MD lived there alone while Mr. Nnadede stayed at the Queen Street apartment till mid-April.
• They had roommates while they lived in the Jane Street apartment and shared one room.
• MD knew Mr. Nnadede had a wife and children in Nigeria.
• Mr. Nnadede offered to pay MD’s cell phone bill when she saw a cell phone she liked and could not afford.
• The two parties argued on May 2, 2020 about Mr. Nnadede not wanting to pay the phone bill anymore.
• MD called Mr. Nnadede after his arrest asking for money she needed.

74MD could not remember exact dates, or some specifics but described each allegation in detail including where she was, how the event started, the language used, the context of the event, how long the event took and how she reacted at the time, specifically:

i. At the Queen Street apartment in February 2019 when she was sleeping on her mattress by the couch in the living room, Mr. Nnadede lay down naked behind her in the early morning hours. He held her left hand/arm, pulled down her panties and inserted his penis in her vagina without her consent. He withdrew and ejaculated on her thigh. ii. At the Jane Street apartment sometime in May 2019 while she was again sleeping on her mattress, Mr. Nnadede came in and started touching her. When she objected he told her that since she could not “pay in cash” she could “pay in kind”. She refused his proposal. He proceeded to take off her clothes, lie on top of her chest and vaginally penetrate her. He withdrew and ejaculated on her legs. iii. At the Jane Street apartment in late June, early July 2019, while she was in the bedroom lying on her mattress, Mr. Nnadede came and sat on her bum. He told her he wanted sex, she said “please no” and tried to get him off her back. She was unable to. When she turned he pulled down her pants, and vaginally penetrated her. She was crying and saying “no”. He continued until he ejaculated on her leg and then apologized.

75The core substance of each allegation was internally consistent throughout. It was untainted by outside sources, in line with her ability to communicate on every matter she testified to, and even consistent with much of Mr. Nnadede’s perceptions. Her narrative was nuanced, her responses candid and at times against herself interest, such as having lied to Mr. Nnadede, having been “stupid” to accept his offer to pay her bill when she had a cell phone already, and admitting that though she did not want to have sexual intercourse with Mr. Nnadede, she “let him” after the three events she described.

76MD was extensively cross-examined over the course of 4 days spanning over 11 months. Counsel submitted MD was materially inconsistent and unreliable on five points:

i. MD did not tell the officers when asked during her statement about a second incident of Mr. Nnadede pulling the blanket off her and petting her after the first penetration at the Queen Street location. ii. MD testified she “loathed and despised” Mr. Nnadede but Counsel filed photos [23] of MD with Mr. Nnadede during the relevant time not looking upset. These photos of MD either alone or with Mr. Nnadede were taken by Mr. Nnadede at various locations: at a birthday dinner, at a shopping mall, at a wedding, at Canada’s Wonderland, while outside their building, waiting to go to a Church service, while buying a wig, going to a movie with mutual friends, and walking down the street. MD agreed she did not look upset in these photos iii. MD testified she did not speak to Mr. Nnadede as a result of the sexual assaults. However, Counsel filed two sets of “What’s App” text messages [24] showing the two parties communicating regularly. iv. MD testified she did not move out because she could not afford to but she was earning $860 a month from OW. v. MD had the option of going to a shelter and did not do so.

77I disagree any of these points undermine MD’s credibility or reliability for the following reasons:

i. The omission of the 2nd blanket incident

78MD explained she thought the officer was referring to penetration when he asked her if anything else had happened, so she responded “no”, there had been no other penetration at the Queen Street location. She did not speak of the second touching because she was in distress when she gave the statement. First, I accept this explanation as a reasonable one, and second, I find the omission to be a minor and peripheral nature as it relates to the main three allegations of forced sexual intercourse.

ii. The photos

79MD agreed she “loathed” and “despised” Mr. Nnadede when that was put to her. MD testified to each of the circumstances of the photos and candidly stated they were self-explanatory: she went to different places with Mr. Nnadede. Sometimes because they were invited to the same event, sometimes because he took her out, sometimes because they arranged to go to somewhere, sometimes because he took pictures of her unbeknownst to her, sometimes because he was admiring her, sometimes she posed and sometimes she did not. She stated:

“I said I despised him and his character and I believe I also mentioned that I was grateful to him. Okay? I was grateful to him because the church I was attending, they didn’t understand my situation….I was grateful to him. It doesn’t mean that for every moment we are out together I need to have, I need to put on the hatred on me, no, it’s not who I am.” “I appreciate everything he was doing, which is being able to house me, despite me not having a job.”

80I accept MD’s descriptions of these photos and her straightforward acknowledgement she was not always upset, was not always hating Mr. Nnadede, and was in fact grateful to him many times – something she acknowledged well before the photos were put to her. I do not find photos undermined her evidence or characterization of her relationship with Mr. Nnadede or her testimony of the three allegations of forced sexual intercourse.

iii. The What’s App Messages

81The two sets of text messages do not account for the entirety of the communications between the two parties. MD testified some messages were missing. Some of the messages were indeed about a disagreement. And there were days that there were no communications.

82Like the photos, these messages were mundane communications between the two parties. Some MD remembered what they were about. Some she did not. She acknowledged she wished Mr. Nnadede Happy Birthday, she worried about his safety, she tried to console him when he was upset, she cared about him, and she was grateful to him.

83I do not find these messages were inconsistent with MD’s characterization of their communications or affect her credibility on the allegations of the three allegations of forced sexual intercourse.

84Of note is the following:

• MD testified she tried to persuade Mr. Nnadede to stop the sexual advances and told him to stop. There are messages that confirm that effort. On March 3, 2023, she messaged him: “Hi sir, please I want to appreciate all you have been doing for me. God Almighty will bless you than u expect.” “But sir please I need this thing happening to stop. I don’t feel comfortable also my mother is having the feeling and I don’t want to say all that to her.” “She was also suggesting that I should go to the shelter. Whatever make me go, then that means all her instincts say are true.” “Please sir let stop it.” She testified this was an example where she was lying about her mother knowing about the sexual activity to persuade Mr. Nnadede to stop the sexual activity.
• MD testified that she was grateful to Mr. Nnadede. The messages showed her on several times telling Mr. Nnadede she was “grateful”.
• MD testified she saw Mr. Nnadede was a father figure. On April 4, 2019, she messaged him: “Thanks for being such a wonderful father and friend”.
• Mr. Nnadede testified he never used the word love regarding MD, but on May 5, 2019 he messaged her “Please don’t be mad at me please I care so much about you. “In my heart I love you so much too.” And on June 27, 2019 wrote “You mean so much to me I love you”. MD responds “thanks dad”.

iv. MD was financially independent

85Both parties agreed MD did not have money or a job in February 2019. Both parties agreed Mr. Nnadede was financially supporting MD. Both parties agreed MD did not have enough money for first and last month’s rent. In fact, Mr. Nnadede testified he would have had to give MD first and last month’s rent for her to move out. The only time MD worked during the period of the allegations was for four weeks at minimum wage for Canada Goose when she contributed to the expenses, then she went back on Ontario Works assistance at amount of $820 a month.

86Counsel argues this is sufficient to save to be able to move out. I disagree.

87The evidence does not undermine or contradict MD’s testimony that she was financially dependent on Mr. Nnadede. All the evidence is that she was financially dependent on Mr. Nnadede and unable to save enough to move out.

v. MD could have gone to a shelter

88MD testified she had been to a shelter at least three times and each time it had been a mental ordeal that negatively affected her, she was “not herself”, she became depressed and even suicidal. She testified she did not have the “courage” to go back to a shelter. I accept MD felt she could not mentally endure going back to a shelter and so did not do so. This does not undermine her credibility when she testified she was sexually assaulted by Mr. Nnadede.

89A word about four of Counsel’s submissions, namely: that MD is not credible because she posed for pictures with Mr. Nnadede and did not look upset when she said she loathed him; that she continued to communicate she cared about him; that she did not leave after she said she was sexually assaulted, by moving out or going to a shelter.

90Each submission relied on an assumption of what a complainant would or should do if she was “really sexually” assaulted – that is- she would be visibly upset and not participate in photos, rather than sometimes smile or look content; she would not care about or communicate with the alleged perpetrator, rather than continue communications with him; she would move out or go to a shelter, rather than remain living with the perpetrator.

91These myths and stereotypes keep emerging in the type of cross-examination MD endured and in the submissions made by Counsel regardless that the Supreme Court of Canada has repeatedly articulated these assumptions and stereotypes about what a sexual assault complainant would do if she/he/they are sexually assaulted must not be made. These assumptions and stereotypes must not taint the credibility analysis of complainants of sexual assault.

92Counsel referred to MD’s education (she had a law diploma from Nigeria), that she did not “suffer fools gladly”, that she was resourceful and could get a job, and that she was a “sizable” woman in his submissions attacking her credibility.

93Counsel seemed to imply that MD’s education and resilience, and his personal perceptions of her personality and looks were relevant to whether MD was the victim of a sexual assault and to the determination of whether the Crown had proven beyond a reasonable doubt that MD was sexually assaulted. It was not. A sexual assault complainant may or may not be educated and resilient, may or may not be vibrant and articulate, may be any size. His submissions invited impermissible reasoning I instruct myself not to follow.

Relevant Inconsistencies and Anomalies

i. MD told the officer in her statement that Mr. Nnadede forced penetration after he bought her the cell phone in late June or July 2019. She testified this occurred before Mr. Nnadede bought her the cell phone in late June or early July 2019.

94MD testified she was not sure about the timing of events but was clear on the events themselves and their timeframe. She testified the passage of time affected her memory, but the actual events were conveyed consistently. This allegation was always tied to the new cell phone at the end of June or beginning of July 2019, which itself came with new advances made by Mr. Nnadede. I do not find this inconsistency of just before or just after the obtaining of a new phone concerning. I particularly do not find it to be significant given the context and totality of her testimony.

ii. Toward the end of cross-examination, MD started to repeatedly answer questions about the specific positioning of her arms and hands and Mr. Nnadede’s arms hands, and how he lifted or moved her, during the first forced penetration with “I don’t remember”.

95MD started cross-examination in January 2022 and continued 11 months later without the benefit of transcripts or reviewing her statement. By November 2022, she testified she could not remember exactly where Mr. Nnadede grabbed her arm, and how he lifted her to penetrate her, and how he was holding her as Counsel continued to question her about the minute movements of the first penetration. She responded “Like I said, I don’t remember. I do not recall. But I’ve very sure if I’ve given that statement at that time, what I’ve said is definitely my truth,” and continued to respond with “I don’t recall.”

96I accept MD could not recall 3 years after the events the exact positioning of the movements of her body and that of Mr. Nnadede. She did recall clearly she was forcibly penetrated from behind by Mr. Nnadede in the early morning hours while she slept on her mattress up against the couch just weeks after moving in with him at the Queen Street apartment.

Motive to Fabricate #1: Vengeance

97Counsel’s submitted MD fabricated the allegations because she was “vengeful” and “disgruntled” and therefore was “going to punish” Mr. Nnadede when he would not pay her phone bill.

98There is no such evidence. On the contrary, the evidence is that she called the police because of a physical altercation and did not want to participate further when informed Mr. Nnadede would be arrested. She was told she could not make that decision. Moreover, MD said several times during her testimony she did not want to proceed any further, and as already noted, MD continues to be grateful to Mr. Nnadede to this day for his financial assistance, putting a roof over her head and food on the table when she had no one to turn to and could not cope with going to a shelter.

99I find there is no evidence MD fabricated allegations of sexual assault to be vengeful.

Motive to Fabricate #2: Refugee Status

100Counsel also submitted MD fabricated the allegations to assist with her Refugee Claim.

101There is no such evidence. MD testified she arrived in Montreal in December 2017 and made a Refugee claim upon her arrival and went to a shelter. In January 2022, she testified she was a Refugee.

102In cross-examination in March 2022, MD testified:

• She was denied the first time she applied for Refugee status and appealed.
• Her second hearing was in February 2021.
• She received a letter of acceptance by the Immigration and Refugee Board (IRCC) sometime in September or October 2021.
• She received a ticket in Gatineau sometime in 2022 at which time she received a phone call from Ottawa that she was to be removed.
• She attended an appointment and showed her letter of acceptance.
• The Canada Border Services (CBS) had not been told by the IRCC of her acceptance. The miscommunication was cleared up.
• She had never received any letters about removal.

103Counsel put to MD a letter from CBS addressed to her dated February 2022 advising of her removal. She testified she never received such a letter.

104Indeed, MD could not have received the letter in February 2022 addressed to her, because it was in Mr. Nnadede’s possession.

105There is no evidence MD was a rejected Refugee claimant in May 2020 when she made the sexual assault allegations. There is no evidence a complaint of sexual assault would help her in her application or in her appeal for Refugee status. There is no evidence she was untruthful when she testified in January that she was a Refugee.

106I accept MD’s evidence she did not receive any letters from officials about any removal, and I accept that there was a miscommunication between IRCC and CBS that was cleared up sometime in 2022.

107I find there is no evidence MD fabricated sexual allegations to assist in her Refugee claim.

Finding

108MD was not a perfect witness. She became frustrated with the cross-examination. She became repetitive at times and long-winded. She took at least three opportunities to refer to allegations of Mr. Nnadede’s bad character. Sometimes, she was unclear and even inconsistent about timing. But she was both straight-forward about realities and nuanced about emotions. She was specific and detailed about the key aspects of each sexual assault she alleged, and she was unshaken.

109MD was also candid about the complexity of her experience when she stated, “I still am grateful even until now for the fact that I didn’t end up in shelter because I don’t know how I would have coped.” That she went out with Mr. Nnadede and did things with him “doesn’t mean that I was enjoying what was happening behind closed doors.”

110I do not find the inconsistencies and anomalies in MD’s testimony to detract from her reliability or credibility, when she is clear, consistent, detailed and candid that she did not consent to these sexual acts. The inconsistencies did not affect the core of the allegations. She was never shaken from her assertion that she did not consent to any of the sexual events she described, and her expressions of non-consent.

111Examining the entirety of MD’s evidence, I find her testimony on the three allegations of forced sexual intercourse to be reliable and credible. I accept that on the three occasions MD described, she by both words and conduct expressed she did not consent to sexual intercourse with Mr. Nnadede.

B. Assessment of Mr. Nnadede’s evidence

112I must assess two aspects of Mr. Nnadede’s evidence, first the “understanding” he testified he had with MD about sexual relations, and second, his testimony about each of the specific sexual allegations.

Mr. Nnadede’s “understanding”

113Mr. Nnadede testified he only had consensual sex with MD. She only ever said “no” when she was menstruating. This is so as he had an “understanding” with her whereby he would financially support her and in return they would have sex whenever he or she wanted. He tried to testify to this “understanding” as the narrative within which the sexual assault allegations occurred though this “understanding” was not referred to in relation to any of the specific allegation made. He had to be repeatedly told not to testify about what he implied was other sexual activity and to focus on the questions asked and the specific allegations.

114A belief a general ‘understanding’ implies consent is not a defence. [25] It is an error of law to assume that unless MD said “no” she had implicitly given her consent to any and all sexual activity because Mr. Nnadede was financially supporting her. [26]

115There was no evidence Mr. Nnadede took any steps to ascertain and obtain MD’s consent to sexual intercourse. Mr. Nnadede did not testify in any way to MD’s specific voluntary agreement to any of the sexual activity she alleged or to any agreement affirmatively expressed by words or acts.

116I reject Mr. Nnadede’s evidence that MD consented to sexual intercourse pursuant to this “understanding” for three reasons.

117First, his references to other sexual activity are not admissible evidence unless they are subject to a s.276 hearing to ascertain their relevance and admissibility at trial. There was no s.276 hearing in this case, and appropriately so, as the “understanding” would not satisfy the conditions of admissibility per s. 276(2) of the Criminal Code. This “understanding” was according to Mr. Nnadede, a general one, and not in relation to specific instances of sexual activity. Nor was it relevant to an issue at trial, as Mr. Nnadede’s position was that MD did consent to his every sexual interaction with her.

118Second, Mr. Nnadede’s purpose with this reference was to imply that he and MD had a sexual relationship. He wished to imply MD consented to sexual activity in general pursuant to this “understanding” and therefore to every instance of sexual activity including the specific instances alleged. It is prohibited reasoning. This “understanding” of financial support for sex, is little different than the “friends with benefits” Mr. Goldfinch advanced before the Supreme Court as admissible evidence, which the Court firmly rejected. [27] In addition, unlike the circumstances in Goldfinch, MD specifically testified she never had consensual sex with Mr. Nnadede. She testified and was unshaken on that point.

119Thirdly, this “understanding”, if it existed in Mr. Nnadede’s mind, was certainly verbally rejected by MD. She testified that during the second forced penetration she told Mr. Nnadede “This shouldn’t be happening. Like this isn’t fair. You are doing this all the time” and said Mr. Nnadede told her “Well, if you can’t pay in cash, you should be able to pay in kind”. She disagreed with this proposal when she responded “well, I didn’t ask you for help, you offered to help me” She did not consent per Mr. Nnadede’s “understanding”. Her evidence on this point was unchallenged.

120Though I reject Mr. Nnadede’s evidence, I must consider if his evidence raises a reasonable doubt. It does not.

121Mr. Nnadede’s testimony that his agreement to financially support MD enabled him to have sex with MD is not a defence. He cannot obtain MD’s consent in advance of sexual activity. Each act must be agreed to.

122Furthermore, Mr. Nnadede’s “understanding” corroborated MD’s description of the second forced penetrations she testified Mr. Nnadede said she should “pay in kind” as she could not “pay in cash” though she did not consent to this arrangement.

123Moreover, his testimony that he could have sex whenever he wanted as a result of the “understanding” supported in part, MD’s perception that Mr. Nnadede felt he had access to her body “like a sex object” and would inform her he was “full” whenever he was “in the mood for sex” though she would say “no”.

Mr. Nnadede’s testimony about each specific forced sexual intercourse allegation

124Mr. Nnadede testified that the first forced sexual intercourse at the Queen Street apartment in February 2019 a few weeks after MD moved in did not happen. He indicated that he was on a night shift and did not return from work until about 4 a.m. The reference to the timing in consistent with MD’s testimony that the event occurred after Mr. Nnadede returned from work at about 3 or 4 a.m., but that is not of much significance.

125More significant is Mr. Nnadede’s testimony that sexual intercourse was consensual because of their “understanding”.

126He was unclear about whether the event ever happened at all, ie: he was not naked and did not get onto the mattress MD was lying asleep on in the living room up against a couch in the early morning hours a few weeks after she moved in and vaginally penetrated her, or he did those acts, but she consented.

127I reject his evidence both on his reliance of his “understanding” and his lack of clarity.

128In regard to both the second and third allegation of forced sexual intercourse, Mr. Nnadede testified that it did not happen as he had “an agreement. I would consent to whatever time we had sex” and because they shared a room, and a bed, and MD never went to another room.

129I reject his evidence as he relies on his “agreement” for consent rather than any evidence of consent to the activity in question in either instance.

130Furthermore, MD’s evidence that she did not consent on each occasion was unchallenged. There is no evidence pointing to words or actions just before or during the incidents that raise a doubt about her assertions and her version of events that both in her mind and in her words and actions she did not want each of the penetrations she described to occur.

131Turning to the second prong of the analysis, although I reject Mr. Nnadede’s testimony about the specific sexual assault allegations, I consider whether it raises a reasonable doubt. It does not. On the totality of evidence, his vague testimony that he only had consensual sex and who never said “no” but when menstruating does not raise a reasonable doubt.

132I now turn to the third branch of W.D. Even though Mr. Nnadede’s evidence does not raise a reasonable doubt, I have to consider all of the evidence as a whole that I do accept, including favourable inferences to the Defence from the testimony of MD.

133MD testified Mr. Nnadede financially supported her. There are messages that thank him for purchasing hair, that request he send money to persons she knows, and that she contacted him after his arrest in pursuit of financial assistance.

134These facts though do not undermine the totality of MD’s evidence that she never agreed to have sexual intercourse with Mr. Nnadede, and do not raise a reasonable doubt about the three specific incidents of forced penetration she testified to.

135I am satisfied on the whole of the evidence, that the Crown has met its high burden and proven beyond a reasonable doubt all the elements of the offence of sexual assault, in particular that MD did not consent to sexual vaginal intercourse with Mr. Nnadede on three occasions between February 2019 and November 2019 and he proceeded with the sexual activity in the face of both her verbal and physical acts communicating non-consent.

V. CONCLUSION

136I find Solomon NNADEDE guilty of sexual assault.

Released: May 31, 2023 Signed: Justice Cidalia C.G. Faria

1The first trial dates were adjourned for pandemic reasons. The trial then started before me on January 5, 2022 and was interrupted during the cross-examination of MD when the Defendant raised a s. 278.92 issue. The Application was heard, the messages were allowed to be used in cross-examination of MD which then continued November 9, and 10, 2022, with submissions on November 16, 2023. The Defence then applied to re-open the trial in March 2023 to cross-examine the complainant on a further document. MD was again cross-examined on March 28, 2023.

2R. v. Lifchus, [1997] 3 S.C.R. 320 at ¶ 39.

3R. v. Ewanchuk, 1999 SCC 711 at ¶36

4R. v. J.A., 2011 SCC 28 at ¶¶31, 34, 39, 42, 66

5Criminal Code, s. 273.1(1.1)

6R. v. Barton, 2019 SCC 33 at ¶88

7R. v. Ewanchuk, supra at ¶¶26-30

8Criminal Code, s. 273.1(2)

9R. v. Ewanchuk, supra at ¶29

10Ibid at ¶ 44

11R. v. Barton, supra at ¶90; R. v. Ewanchuk, supra at ¶¶46 and 49; R. v. J.A., supra at ¶42

12R. v. Barton, supra at ¶98

13Ibid.

14R v. Morrissey, [1995] O.J. No. 639 (C.A.) at ¶ 33; R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (C.A.) at ¶ 41

15R v. J.J.R.D., [2006] O.J. No. 4749 (C.A.) at ¶ 47; R. v. J.W., [2014] O.J. No. 1979 (C.A.) at ¶ 26.

16R v. Stewart, [1994] O.J. No. 811 (C.A.) at ¶ 27

17R. v. W.D. (1991), 63 CCC (3d) 397 (S.C.C.) 1

18R. v. Esquivel-Benitez, 2020 ONCA 160

19R. v. J.J.R.D. at ¶46-48, leave to appeal to SCC. Refused, [2007] S.C.C.A. no. 69

20R. v. D.C., 2019 ONCA 442 at ¶ 19-23.

21R. v. Batte (2000)CanLii 5751 (OCA) at ¶ 121.

22R. v. Seaboyer; R. v. Gayme, [1991] 2 SCR 577 at ¶ 679-680, R. v. Darrach, 2000 SCC 46 at ¶ 32-37, R. v. Find, 2001 SCC 32 at ¶ 103, R. v. JL, 2018 ONCA 756 at ¶ 46-47, R. v. JC, 2021 ONCA 131 at ¶ 93-98, and R. v. JJ, 2022 SCC 28 at ¶ 1.

23Exhibits 2A to 2S.

24Exhibits 3A and 3B.

25R. v. Barton, supra at ¶98

26Ibid.

27R. v. Goldfinch, 2019 SCC, 38 at ¶ 3-5.