Publication Ban Warning

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (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) 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.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

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

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2021-09-13 Docket: C68557

Judges: Hoy, Trotter and Paciocco JJ.A.

Between:

Her Majesty the Queen Respondent

and

Samsuldeen Ajimotokan Appellant

Counsel:

Samsuldeen Ajimotokan, acting in person Philippe Cowle, for the respondent

Heard and released orally: September 9, 2021 by video conference

On appeal from: the conviction entered by Justice John B. McMahon of the Superior Court of Justice on April 12, 2018, and from the sentence imposed on October 2, 2019.

Reasons for Decision

[1] The appellant appeals his conviction for sexual assault, his designation as a dangerous offender, and the imposition of an indeterminate sentence.

[2] At trial there was no issue that the sexual interaction took place. Further, in oral argument, trial counsel for the appellant conceded that the complainant subjectively was not consenting to the sexual acts. The complainant testified that she allowed the appellant to do the things he did as she had a subjective belief she would be harmed if she resisted and she remained passive throughout.

[3] The issue at trial was whether the Crown had proved that the defence of honest, but mistaken belief, in communicated consent did not apply. The trial judge was satisfied, beyond a reasonable doubt, that the defence did not apply.

[4] On appeal, the appellant argues that the complainant was not credible and that the complainant “threw him under the bus”.

[5] The trial judge found the complainant to be credible and reliable, and accepted that she remained passive throughout because of her fear. He provided careful reasons for so finding. That finding is entitled to deference.

[6] In any event, silence or passivity is not communicated consent. There must be words spoken or conduct that demonstrates a willingness to engage in sexual activity.

[7] There is no basis for this court to interfere with the appellant’s conviction.

[8] As to the sentence appeal, the appellant submits that: the other sexual assaults, of which he was previously convicted, were not related to this incident; the fact that Dr. Pearce opined that he suffered from paraphilic coercive disorder shows that Dr. Pearce was biased and his evidence should not have been accepted; and the trial judge’s finding that he had “not responded at all to treatment in the past” was not correct.

[9] This was the appellant’s fourth sexual assault in less than five years. Some of those offences occurred while he was on bail or parole. It does not matter that the offences were discrete incidents.

[10] The trial judge did not accept Dr. Pearce’s opinion that the appellant suffered from paraphilic coercive disorder. The trial judge accepted the evidence of both Dr. Pearce and the defence forensic psychiatrist, Dr. Rootenberg, that the appellant suffered from unspecified personality disorder, with antisocial and narcissistic personality traits. The sentence the trial judge imposed was based on that diagnosis.

[11] The trial judge’s finding that “the accused’s sexual misconduct challenges are intractable and he is unable to surmount them, even with the proposed treatment plan” was fully supported by the record.

[12] The sentence imposed was reasonable and not tainted by error of law. There is no basis for this court to interfere.

[13] The appeal against conviction is dismissed. Leave to appeal sentence is granted, but the appeal as to sentence is dismissed.

“Alexandra Hoy J.A.” “Gary Trotter J.A.” “David M. Paciocco J.A.”