WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2024 01 31 COURT FILE No.: 20-45003249 Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Solomon NNADEDE

Before: Justice C. Faria

Sentencing Hearing on: November 23, 2023 Reasons for Sentence released on: January 31, 2024

Counsel: Mohsin Yousuf.................................................................................... counsel for the Crown Adetayo Akinyemi................................... counsel for the accused Solomon NNADEDE

Faria J.:

I. Overview

[1] I found Solomon Nnadede guilty of sexual assault contrary to s. 271 of the Criminal Code after a trial. [1] The matter was adjourned for sentencing submissions and a Pre-Sentence Report (PSR).

II. Facts

[2] I reviewed the facts and circumstances of the sexual assault in detail in my written decision and so will only summarize them here.

[3] Mr. Nnadede met MD through the Church where he was a Pastor in the fall of 2018. He asked for a volunteer to assist his widow friend with her children, and MD volunteered. When the widow decided to move to Nova Scotia, MD was going to go with her, until Mr. Nnadede counselled her not to. She took him up on his offer of help and moved in with him. MD was a 21-year-old homeless refugee claimant with no job at the time.

[4] The move occurred in January 2019 into his apartment on Queen Street in Toronto. In March, they found an apartment on Jane Street and Mr. Nnadede moved in April 2023. Mr. Nnadede financially supported MD and gave her a home for the rest of that year and into the spring of 2020. Between February 2019 and November 2019, Mr. Nnadede sexually assaulted MD three times.

[5] In the Queen Street apartment in the early morning hours of February 2019, MD was sleeping on her mattress on the floor by the couch in their living room. Mr. Nnadede came in and lay naked behind her. He held her left hand/arm, pulled down her panties and vaginally penetrated her with his penis without her consent. He withdrew and ejaculated on her thigh.

[6] In the Jane Street apartment in May 2019, MD was again sleeping on her mattress, when Mr. Nnadede came into the room and started touching her. Mr. Nnadede was still financially supporting MD and providing her with shelter. When MD objected, Mr. Nnadede told her that since she could not “pay in cash”, she could “pay in kind”. MD refused Mr. Nnadede’s proposal. Mr. Nnadede proceeded to take off her clothes, lie on top of her chest and then vaginally penetrate her. He again withdrew and ejaculated on her legs.

[7] In the Jane Street apartment in late June, or early July 2019, while MD was in the bedroom lying on her mattress, Mr. Nnadede came into the room and sat on MD’s bum. He told her he wanted sex. She said, “please no” and tried to get him off her back. She was unable to. When MD turned, Mr. Nnadede pulled down her pants, and vaginally penetrated her. MD was crying and saying “no”. Mr. Nnadede continued until he ejaculated on her leg and then apologized.

III. Mr. Nnadede’s Circumstances

[8] Mr. Nnadede is currently 51 years old. He was 47 years old at the time of the offence. He has no criminal record.

[9] Pursuant to his PSR [2], Mr. Nnadede is originally from Nigeria where he had a positive childhood, completed high school, and then worked in clothing and manufacturing. He married in Nigeria in 2004 and has two daughters. He left his wife and daughters in 2017 when he fled to Canada and claimed refugee status. He is still married, and his goal has always been to sponsor his wife and his daughters, who are now 20 and 16, to come to Canada.

[10] In Canada, Mr. Nnadede has worked as a Personal Support Worker, did cleaning, moving, deliveries and factory work. He is currently unemployed and doing odd jobs.

[11] Two of his friends through work described Mr. Nnadede as a reliable, dedicated, and hardworking employee. Both friends considered themselves close to Mr. Nnadede and said they knew MD was living with Mr. Nnadede as he was “helping” her. Both friends reported to the PSR writer they did not “know their (Mr. Nnadede and MD’s) relationship was sexual in nature”. Mr. Nnadede, however, described his relationship with MD to the writer as that of a “couple” who had been living together for a year and a half.

[12] Mr. Nnadede has no substance or alcohol problem.

[13] Mr. Nnadede described himself to be shocked and hurt when discussing the offence as he is adamant that his sexual encounters with MD were consensual because they were a couple. He feels MD’s accusations were made because he refused to pay for her cell phone bill and asked her to pay a portion of the rent.

[14] Counsel added that Mr. Nnadede lost his job because of the charge which has negatively affected his ability to send financial support to his family in Nigeria. He is also now a Permanent Resident in Canada and this conviction will affect his status.

IV. Effect on Victim

[15] MD, in her own words, described the impact of this offence on her as follows:

“Emotionally this has made me constantly question myself” and I keep “asking if I would ever be able to really settle down maritally. Would any man want a broken goods like myself. For the past 3 years I only see myself as a dirty object that would never be clean Emotionally, I’m incapable of connecting with any male figure, leaving (sic) in a very lonely world by myself.”

“The physical impact that has brought me is a very hard one. At work, I have been asked to go home on several occasions because of my reaction to a male touch either mistakenly or friendly. Not able to work with male colleagues or hang with male figures.”

“I decided to move out of Toronto after I had seen the offender at a mall. I began to have nightmares and that was when I decided to leave the city for my sanity.” [3]

V. Position of the Parties

[16] The Crown submits the fit sentence is one of 8 to 9 years in the penitentiary, and ancillary DNA, SOIRA, s.109 and s.743.21 Orders. He emphasized that denunciation and deterrence are the paramount principles in this case given the aggravating features.

[17] Supporting his position, the Crown relied on various cases. I have reviewed them all but will not summarize them here. [4]

[18] The Defence submits the appropriate sentence is a Conditional Sentence of 2 years less a day with a long period of probation. He does not take issue with the Crown’s proposed ancillary orders.

[19] Counsel submits there was no “gratuitous violence”, emphasized Mr. Nnadede’s positive PSR and highlighted that each of the Crown’s cases are distinguishable from Mr. Nnadede’s circumstances, including the collateral immigration consequences of this conviction on him. He relied on caselaw as well, which I also reviewed, but will also not summarize. [5]

VI. Legal Principles and Analysis

[20] The foundational sentencing principle is proportionality. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s.718.1 of the Criminal Code).

[21] The purpose and objective of sentencing is to denounce unlawful conduct, deter the offender and others from committing offences, separate offenders from society when required, assist in an offender’s rehabilitation, make reparations for the harm done and promote a sense of responsibility in the offender (s.718).

[22] The court must consider aggravating and mitigating factors (s. 718.2) and the principle of parity which is that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)).

[23] It is agreed that denunciation and deterrence are the primary applicable principles in this case.

Aggravating factors

[24] Mr. Nnadede sexually violated MD over a period of 9 months. During this time, and after each time he violated her, he had an opportunity to reflect and restrain himself. He did not.

[25] It is aggravating that Mr. Nnadede sexually assaulted a woman who was vulnerable in several ways.

• MD had no job and no home, Mr. Nnadede offered her food and shelter when she had neither. She was completely dependent on him when she moved into his home and continued to be, as she looked for a job and tried to get on her feet. Within weeks of accepting what appeared to be kindhearted help, MD was victimized by the very person she depended on for survival.
• MD was young. She was 21 and Mr. Nnadede was 47. Though they were both recent arrivals to Canada and they were both refugee claimants, Mr. Nnadede, had more employment history under his belt, he had been carrying the responsibility for a family back home, and was a leader in the Church community. MD had none of those life experiences.
• MD had a relationship of trust with Mr. Nnadede. He was a Paster in her Church. He counselled her spiritually when they first met. In fact, he advised her on what to do when she contemplated decisions. He ministered to her as demonstrated by his religious references in his texts to her.
• MD also considered Mr. Nnadede a father figure and told him so.

[26] Although MD had more education than back in Nigeria than Mr. Nnadede, Mr. Nnadede has no insight that he was in an experiential, financial, and spiritual position of power and advantage vis-à-vis MD.

[27] The sexual violation also occurred in a home of very modest accommodations. MD was usually sleeping on a mattress in exposed common areas, or a room she shared with Mr. Nnadede. She had no privacy, no means to escape even within the apartment.

[28] The sexual assault occurred in a manipulative context. Mr. Nnadede would violate MD, then apologize and care for her, take her places, give her gifts, compliment her, and support her. This care and affection, that MD so needed, made it even more difficult for MD to free herself of Mr. Nnadede. His persistence led her to “give up” and “let him have sex” with her as a way to cope.

[29] Indeed, the depth of dependance, and the complexity of emotions is demonstrated by the fact MD candidly testified that though Mr. Nnadede repeatedly sexually assaulted her, she is still grateful to him for helping her as she would not have been able to manage otherwise at the time.

[30] The impact of the sexual violation on MD is substantial. In her victim impact statement, she communicated the depth and breadth of the damage Mr. Nnadede inflicted on her psychologically and emotionally. She reports her perception of herself as dirty and describes her inability to connect with others, particularly men. This isolates her in loneliness and undermines her ability to live and work in the world. Encountering Mr. Nnadede has made her move out of the city. MD’s experience of life is now severely distorted by the sexual crimes Mr. Nnadede committed on her.

[31] Mr. Nnadede has limited insight into his conduct. He simply viewed the relationship as a mutually transactional one, with affection. He is oblivious to the damage he has caused.

Mitigating factors

[32] In mitigation, Mr. Nnadede has no criminal record and lives a pro-social life.

[33] He has been industrious and financially supported himself in several ways under challenging circumstances when he first came to Canada as a Refugee Claimant and continues to make his best efforts to be gainfully employed.

[34] His Pre-Sentence Report is positive. Mr. Nnadede is known to be generous, helpful, and hardworking. He cares about and tries to support his family in his country of origin. He has healthy hobbies, and a sense of spirituality. He has no substance use issues.

Collateral Consequences

[35] Mr. Nnadede is a Permanent Resident. This conviction and sentence will affect his status in Canada. One of the reasons Counsel urges the court to sentence Mr. Nnadede to a Conditional Sentence for less than 2 years, is to avoid depriving him of the option to appeal a removal order should one be issued pursuant to the Immigration and Refugee Protection Act (IRPA). A penitentiary sentence will deny him that option.

[36] A sentencing judge may exercise their discretion to take collateral immigration consequences into account. It is neither an aggravating factor nor a mitigating factor, but one that is relevant to the personal circumstances of the offender. [6]

[37] However, the Supreme Court of Canada makes clear that the sentence ultimately imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The “flexibility of the sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.” [7]

[38] Said another way, “immigration consequences cannot take a sentence out of the appropriate range” [8]

[39] Although a Conditional Sentence can have a denunciatory and deterrent effect, in this case it would be wholly inadequate to reflect the principle of denunciation required to sanction Mr. Nnadede for his sexual violation of MD. It would not recognize the gravity of his crime, nor his blameworthiness.

[40] The Supreme Court of Canada and the Ontario Court of Appeal have repeatedly articulated that the damage caused by sexual violence, its serious nature and the culpability of the perpetrator must be recognized and reflected in the sentence imposed on offenders who commit this offence. Sentences must reflect the myriad of individual circumstances, the unique characteristics of the offenders and the harm caused to their victims.

[41] The understanding of this crime is evolving. Justice Fairburn referred to this evolution in A.J.K. when writing about the different ranges of sentences that have emerged when sexual violence is committed against intimate partners and non-intimate partners.

[70] However we arrived at this place, it is time to leave this sentencing artefact behind.

[71] The Supreme Court recently reiterated that ranges and starting points are malleable products of their time. They are “historical portraits” that provide insight into the operative precedents of the day, but they are not “straitjackets” and can be departed from as societal understanding of offences and the severity of harm arising from those offences deepens: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 108. To that end, it is not unusual “for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change”: R. v. Parranto, 2021 SCC 46, 436 D.L.R. (4th) 389, at para. 22, citing R. v. Smith, 2017 BCCA 112, at para. 36, citing R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at para. 49; Friesen, at para. 108.

[72] In some cases, appellate courts are called upon to chart a new course and bring sentencing ranges into “harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders”: Friesen, at para. 35. See also: R. v. Wright (2006), 83 O.R. (3d) 427 (C.A.), at para. 22. That is what we are being asked to do here. It is right to do so. [9]

[42] The Court went on to say:

[74] All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.

[75] As the years pass, enlightenment on the implications of sexual violence continues to permeate our conscious minds. In Friesen, the court noted, at para. 118, that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened” and, I would add, is continuing to deepen: see also R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37. As Moldaver J. stated in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 1: “Without a doubt, eliminating … sexual violence against women is one of the more pressing challenges we face as a society” and “we can – and must – do better” (emphasis in original). This comment encapsulates why these sentencing ranges as they have come to be understood must be reconciled. [10]

[43] When reviewing the cases provided by both parties, no case was on all fours with the one at bar, as rarely one ever is given the individuality of every offender, and the context of their offence. Individualization is key. [11]

[44] The ranges were helpful guidelines in the complex balancing of the many factors required here, but no case had the unique relationship of dependence between the parties and the reasons for it, as existed in this case.

[45] Mr. Nnadede is a pro-social, hard-working man, trying to make a life for himself in Canada, who has also seriously sexually violated a vulnerable young woman over a significant period of time and likely caused her to be forever changed by his conduct.

VII. SENTENCE

[46] Mr. Nnadede, I sentence you to 5 years in the penitentiary.

• You will be prohibited from possessing weapons as defined by the Criminal Code pursuant to s. 109 for 10 years.
• You will provide a sample of your DNA pursuant to s. 487.04.
• You will register for Sex Offender Registry pursuant to s.490.012 for 20 years.
• You will have no contact with MD while you are incarcerated pursuant to s.734.21.
• The Victim Fine Surcharge will be waived as it will cause you undue hardship.

[47] Thank you counsel for your able submissions.

Released: January 31, 2024 Signed: Justice Cidalia C.G. Faria

Footnotes:

[1] R. v. Nnadede, 2023 ONCJ 268. [2] Exhibit 1: Pre-Sentence Report, Solomon Nnadede, October 12, 2023, author Monica Amendola [3] Exhibit 2: Victim Impact Statement, MD, August 8, 2023. [4] R. v. A.J.K. 2022 ONCA 487, R. v. Henry 2022 ONCA 191, R. v. Krishyanth Kugaraja, 2022 ONCJ 291, R. v. McCraw, [1991] S.C.J. No. 69, R. v. M.F., 2022 ONCA 372, R. v. Franco, 2020 ONSC 998, R. v. Pham, 2013 SCC 15. [5] R. v. Sampson, R. v. G.T. 2022 ONSC 2619, R. v. Nolan, 2009 ONCA 727, R. v. Simkins, 2003 ABPC 30. [6] R. v. Pham, 2013 SCC 15 at para. 11. [7] R. v. Pham, 2013 SCC 15 at para. 15. [8] R. v. Badhwar, 2011 ONCA 266 at para. 43. [9] R. v. A.J.K. 2022 ONCA 487 at paras. 70-72. [10] R. v. A.J.K. 2022 ONCA 487 at paras. 74-75. [11] R. v. Lacasse, 2015 SCC 64 at paras. 54, 58, 59, 128, 140, and 143.