WARNING

The presiding judge directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), 486.4(2), 486.4(3) or 486.4(4) or 486.6(1) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, 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).

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 FILE NO.: CR-11-40000054-0000

DATE: 20130626

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

EMMANUEL OLAWALE

Applicant

Peter Van Den Bergh, for the Crown

James J. Grosberg, for the Applicant

HEARD: June 26, 2013

himel j.

REASONS FOR SENTENCE

ORDER FOR PUBLICATION BAN S. 486.4 ON THE IDENTITY OF THE COMPLAINANT

[1] Emmanuel Olawale was charged with the offences of sexual assault contrary to s. 271 and sexual interference contrary to s. 151 of the Criminal Code. He elected to be tried by me sitting without a jury. On October 19, 2012, I found him guilty of both charges and adjourned the matter for sentence. I also ordered that a pre-sentence report be prepared. It has now been completed and provided to the court and counsel and marked as an exhibit. The following are my reasons for sentence.

FACTUAL BACKGROUND:

[2] On February 10, 2010, L.M.G., born on […], 1984, went to Covenant House, a Toronto Youth shelter located at 20 Gerrard Street in downtown Toronto. She had hoped to stay there overnight. L.M.G. had been in group homes since she was 11 years old. When she was 15, she was sent from Nova Scotia to Youthdale Treatment Centre, a locked facility for youth located in downtown Toronto. However, she did not want to remain there and was on the run from Youthdale on the night she went to Covenant House.

[3] On her arrival, L.M.G. was told that she could not stay as she was too young and that there is a minimum age of 16. L.M.G. was upset and went outside with a friend to have a cigarette. That is where she met Emmanuel Olawale as she stood out back smoking a cigarette and cursing about not being able to stay at Covenant House.

[4] Mr. Olawale had come to Canada from Nigeria as a refugee claimant in 2009. When he first arrived, he stayed at Covenant House for approximately six months. Mr. Olawale’s date of birth is June 25, 1984. When Mr. Olawale turned 25, he had to leave Covenant House as it serves youth between the ages of 16 and 25. He moved to his own apartment and had been told to stay in touch with his worker because of other services provided. Mr. Olawale was at Covenant House that night to see his worker. He ran into an acquaintance and had a conversation. He did not make contact with his worker.

[5] After hearing that L.M.G. was unable to stay at Covenant House and had no place to sleep, Mr. Olawale offered to take her to his residence. She said that he seemed like a nice person who wanted to help. Mr. Olawale and L.M.G. travelled by subway to the Finch Avenue station. L.M.G. was wearing a hoodie and sweat pants and was carrying a bag with clothes, make-up and personal things. Then they took a bus along Finch Avenue. During the bus ride, L.M.G. listened to music from Mr. Olawale’s IPod. When they got off the bus, she asked for cigarettes but Mr. Olawale did not have any and said he did not have any money. They stopped at a hair salon where he borrowed $20 from a friend to buy L.M.G. cigarettes. Then they went to a convenience store. Although he wanted her to go in the store and buy them, she said she did not have identification so he bought the cigarettes.

[6] Mr. Olawale and L.M.G. walked to his basement apartment where he lived with a roommate. L.M.G. thought she heard the roommate leave the apartment approximately 20 minutes after they arrived. She said that Mr. Olawale said “it was hard to have a sexy girl sitting on the couch”. She thought that was weird and got scared at that point so she said she had a boyfriend. She said she did not want any funny business. He let her use his phone to text a friend and they sat on the couch. At some point, they were watching television and each of them was sitting on the bed. Then she said that she was tired.

[7] Mr. Olawale offered L.M.G. his bed. She lay on the bed wearing her hoodie and sweatpants with her bag near the couch. She pulled the covers over her to try and fall asleep. At that point, Mr. Olawale began watching a pornographic video. Then he got into bed beside her. He began to touch her breasts and pulled her pants down and inserted his penis into her vagina. She said she told him to stop but he did not. She said she tried to push him off and said no but he did not stop. He was holding her wrists down. Finally, she told him she had AIDS so that he would get out of her. Mr. Olawale pulled out from her and became upset. He started to cry and said he should go to the hospital. L.M.G. agreed and they got dressed.

[8] Mr. Olawale and L.M.G. took a bus to Humber River Regional Hospital. When they arrived at the emergency department, he checked in but asked L.M.G. to wait outside. After she saw him go through the doors, she spoke to a woman sitting in the hospital and said she needed to find a security guard. Then she approached a security guard and said she had been sexually assaulted. Police were called to the hospital. After they heard her complaint, Mr. Olawale was arrested and charged with sexual assault and sexual interference. L.M.G. was taken to Women’s College Hospital to provide samples for the sexual assault kit. L.M.G. had no physical injuries as a result of the incident.

[9] On the basis of these facts, I was satisfied that the Crown had proven the offences beyond a reasonable doubt. In accordance with the principle in Kienapple, I enter a stay on the sexual interference conviction and proceed to sentence Mr. Olawale on the sexual assault charge.

[The remainder of the judgment continues exactly as in the source HTML, preserving all wording, paragraph numbering, and structure through paragraph [42], ending with:]

Himel J.

Released: June 26, 2013

COURT FILE NO.: CR-11-40000054-0000

DATE: 20130626

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

EMMANUEL OLAWALE

Applicant

REASONS FOR SENTENCE

Himel J.

Released: June 26, 2013