Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 08 16 COURT FILE No.: 23-48121526 Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Oladele OLAFIMIHAN

Before Justice C. Faria

Heard on August 13, 2024 Reasons for Sentence Oral August 13, 2024 Written Reasons Released August 16, 2024

Counsel: Meghan Scott & Vivian Gallegos................................................... counsel for the Crown Chris Rudnicki..................................... counsel for the accused Oladele OLAFIMIHAN

Faria J.:

Endorsement

[1] On August 13, 2024, Oladele Olafimihan pled guilty to committing a sexual assault contrary to s. 271 of the Criminal Code. I sentenced him later that afternoon providing oral reasons. These are my written reasons.

[2] An Agreed Statement of Fact was filed outlining the circumstances of the offence.

[3] In the early morning hours of October 14, 2023, Mr. Olafimihan sexually assaulted a woman on the front porch of 985 Logan Avenue in Toronto. She was not known to him. The police were never able to identify her and so her identity remains unknown today.

[4] Earlier that evening, Mr. Olafimihan was at a birthday party. He then attended a bar on Danforth Avenue. He drank alcohol at both locations. He began to feel strange and attributes this strangeness to the fact he is diabetic and was hypoglycemic at the time.

[5] He wandered the Danforth area, ultimately entering a Circle K at Danforth and Pape. There, he saw a woman, the victim, walking westbound on the north side of Danforth Avenue. He began following her.

[6] The woman continued westbound on Danforth Avenue, turning north when she reached Logan Avenue. He continued to follow her. She walked northbound until she reached 985 Logan Ave, a house. She does not live there and is not related to the residents. She began knocking on the door.

[7] Mr. Olafimihan approached the victim, threatened her, and sexually assaulted her. Surveillance video from 985 Logan Avenue captured the sexual assault and the Crown filed it as a sealed exhibit on sentencing.

[8] After the sexual assault, Mr. Olafimihan left the area and walked home.

[9] Police identified Mr. Olafimihan as the man on the video who sexually assaulted the woman. He was arrested on October 26, 2023. He was released on bail on November 3, 2023. He has resided with his sureties in Regina, Saskatchewan since then without incident.

[10] Mr. Olafimihan is a 43-year-old man with no criminal record.

[11] He was educated in Nigeria and worked there for a large bank detecting fraud. He came to Canada to join his fiancé and her daughter to start a new life here. Once he arrived, he began to study and has just graduated with a degree.

[12] Mr. Olafimihan has siblings in Canada, including his sureties with whom he lived with in Saskatchewan for 10 months under house arrest. His brother-in-law and two friends attended court to support him. His parents remain in Nigeria.

[13] In addition to a history of employment in his home country, and an education in both Nigeria and Canada, Mr. Olafimihan has volunteered in the community and has been a practicing and contributing member to his faith community.

[14] There is no Victim Impact Statement before me, but there is a woman in this community who will never forget the night of October 14, 2023. Whether she remembers it in minute detail, or only as flashbacks of some of it, a lot of it, or the most terrifying moments of it, the experience of the personal, physical, emotional, and psychological violation will be with her.

[15] It is often documented that women do not report sexual assault. It appears this is such a case. For whatever reason: pain, trauma, fear, youth, personal circumstances, I cannot speculate what the reason is, the woman in the video who was stalked, who was intoxicated, who tried to get away from the man following her late in the dark night as she walked alone, the woman who tried to find refuge at a stranger’s door and was then sexually assaulted by their porch, the woman who was threatened, and who can be heard crying, and trying to stop Mr. Olafimihan as he violated her, on video – did not come forward, did not voice what happened to her in her own words.

[16] This sexual assault also had an impact on others. The residents who saw this video of this sexual assault at their front door and reported it, the officers who looked for the victim and the perpetrator, all those who saw this video in the course of their professional duties experienced the vicarious trauma of having to watch a sexual assault on tape.

[17] The parties have jointly submitted that the appropriate sentence is 4 years in the penitentiary minus pre-sentence custody. They agree and jointly submit I should order Mr. Olafimihan to provide a sample of his DNA, be prohibited from possessing weapons for life, and register with the Sex Offender Information Registry Act (SOIRA) for a period of 20 years.

[18] Both the Crown and the Defence referred to the fact this matter was judicially pre-tried before me. Their position, they submitted, is the product of careful consideration, expert consultation, and thorough negotiation between the parties.

[19] The criminal law is a system of values and sentencing is meant to reflect and reinforce the basic values of our society. Accordingly, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions.

[20] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[21] The sanction the court imposes should have one or more of the following objectives:

• to denounce unlawful conduct
• to deter the offender and other persons from committing offences
• to separate offenders from society, when necessary
• to assist in rehabilitating offenders
• to provide reparations for harm done to victims or to the community
• to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[22] I must also consider aggravating and mitigating factors and in this case there are a number of notable ones.

[23] Sexual assault is a serious crime. Mr. Olafimihan perpetrated this one with forethought and persistence.

[24] He stalked the victim through the streets late at night. When she went to the door of strangers, he walked past the house, and when no one opened the door, he returned, and came at her from behind.

[25] The woman was under the influence of what appears to be alcohol. She is clearly young. She is clearly alone. She is clearly vulnerable. Mr. Olafimihan is taller than her. He is bigger than her. He is heavier than her.

[26] Mr. Olafimihan is heard on audio threatening her life.

[27] He also leads her to believe that he has a weapon on him. She has a visible reaction and quietly sobs.

[28] Mr. Olafimihan physically directs her down the stairs in front of the door and manipulates her clothes as he threatens her. He takes her to a darker portion of the front of the home.

[29] The combination of these factors: the stalking; the threatening; saying he had a weapon; manipulating her clothes; and then taking her to a darker portion of the front of the home to sexually assault her are aggravating factors.

[30] There are also mitigating factors. Mr. Olafimihan is a 43-year-old man with no criminal record.

[31] He has extensive family support via his fiancé, his siblings, and his parents back in Nigeria. He also has support from his friends, his colleagues, his former employers, and his spiritual counselors all who have written letters of support that were filed as exhibits. They describe a dedicated student, a good worker, a loyal friend, and an honest, contributing member of society. This support will assist him when he is released from incarceration.

[32] Mr. Olafimihan has also initiated self-help by seeking and obtaining counselling and spiritual guidance to help him understand what he did, and how it came about. His rehabilitation potential is good.

[33] The most significant mitigating factor however is his guilty plea.

[34] Firstly, a guilty plea saves the criminal legal system precious resources, particularly in the Toronto jurisdiction where such resources are strained. In this case, he communicated his intention to the Crown very early thereby saving the prosecution significant trial preparation time.

[35] Secondly, a guilty plea saves witnesses from having to come to court to testify. In this case, many investigative witnesses would have been required to establish a case where the victim is unavailable.

[36] Thirdly, Mr. Olafimihan could have challenged the manner by which police identified him. He has a right to put the crown to its high burden of proof and he did not.

[37] Finally, a guilty plea demonstrates remorse and accountability. Mr. Olafimihan’s remorse was very clear throughout the sentencing, and during his allocution.

[38] Mr. Olafimihan had to look at himself, see the worst of himself – in this case, what is described by him, his family, and his supporters, as an almost unrecognizable self. He is acknowledging his conduct which reflects a part of him he may not have known existed or may have thought would never exhibit itself. He saw himself committing a horrible crime on video and is taking responsibility for having irreparably harmed another human being, on the record, in public, in front of his supporters, and for all time. His remorse was obvious.

[39] Mr. Olafimihan has asked the court for mercy so he “may have a life”. The mercy he seeks is not the court’s to give, my task is to sentence him fairly, He will have to live with the trauma he inflicted, just as the victim will have to live with the trauma she sustained.

[40] In addition, though not mitigating per se, I must consider the serious collateral consequences Mr. Olafimihan will experience. He will be deported once he is paroled, back to a country that, though dear, I am sure, is a country he thought did not provide him with the opportunities Canada does which is why he came here.

[41] His future with his fiancé will look different than what he planned, his education here will not be productive here, he will not be returning to his country of origin and his parents in success – but rather as a deportee for criminality – a heavy burden for a person who values integrity, honesty, as his supporters wrote he does.

[42] By any measure the gravity of this offence is a serious and that cuts to the core of a person’s sense of self, safety and dignity, and Mr. Olafimihan’s moral culpability is high, because he was a persistent predator in the night.

[43] I am mindful of the Supreme Court of Canada’s statements in R. v. Anthony-Cook, 2016 SCC 43 describing the value and benefit to society of a negotiated resolution agreement, as well as the certainty such an agreement provides to the prosecution and the accused (at paragraphs 35-42).

[44] A judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest (at paragraph 32).

[45] In this case, given the careful consideration of numerous factors, I find it does not.

[46] The primary guiding principles in this case are denunciation and deterrence. Also applicable are the principles of restraint, rehabilitation, and parity. Mr. Olafimihan’s positive antecedents, family support, and remorse, as well as the collateral consequences he will experience in the context of his meaningful guilty plea are reflected in the recommended sentence. It is within the range that guides sentencing judges as provided by the Ontario Court of Appeal.

[47] Four years is a long time for a person who has never been incarcerated. No one is ever only one act and Mr. Olafimihan’s personal circumstances have been considered by two experienced advocates. I accept their recommendation.

[48] Mr. Olafimihan, I sentence you to 4 years in the penitentiary minus 8 days in pre-trial custody, enhanced to 12 days. You will order you provide a sample of your DNA, you will be prohibited from possessing weapons for life, and you will register with the SOIRA for 20 years.

Released: August 16, 2024 Signed: Justice Cidalia C. G. Faria