R. v. Solomon, 2021 ONSC 1729

COURT FILE NO.: CR-19-30000566-0000

DATE: 20210305

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SUNDAY SOLOMON

Defendant

Sylvana Capogreco, for the Crown

Alan H. Sobcuff, for the Defendant

HEARD at Toronto: February 5, 2021

Low J. (Orally)

REASONS FOR SENTENCING

[1]

Background

The defendant, Sunday Solomon, was convicted after trial by judge alone. He was found guilty of sexual exploitation, one count of sexual assault, and one count of uttering a threat of death or bodily harm.

2The victim, M. T., is now 35 years old. She was 15 at the time of the first two offences. She was, at that time, not well educated for a young person of her age, having immigrated to Canada from Dominica, and having been kept out of school for a substantial period of time while in Canada. Nor did she have the benefit of protective parental guidance as her father was absent from her life and her mother reposed a high degree of faith and trust in the defendant as a religious leader.

3Ms T. gave birth at the age of 16 to a daughter of whom the accused was the father and subsequently to two more daughters during the time that she cohabited with him. The cohabitation was not harmonious. She and the defendant were not compatible. They were not of the same generation nor of the same culture, she having been raised in Dominica and the defendant being a native of Nigeria. The defendant’s circle of acquaintance was Yoruba speaking, and Ms T. did not understand that language. Following the birth of her daughter, Ms T. felt alone and trapped and on an objective view of her situation, she was. She was living with Mr. Solomon because she had no viable options. She was a child trying to raise a child in a new environment and she was dependent on the defendant. Once Ms T. was able to get housing on her own, she left the accused. Although her attempts to get education and training to become employable while she was cohabiting with Mr. Solomon were discouraged if not sabotaged by him, Ms T. appears subsequently to have become a self-sufficient person and a protective mother.

4The Crown is seeking a custodial sentence of 5 years on the sexual exploitation conviction, 1 year on the sexual assault and 90 days on the uttering threat, all to be served consecutively. On behalf of Mr. Solomon, it is said that a conditional sentence in the range of 6 to 12 months with a period of probation to follow would be fit and proper on the grounds that there is no risk of re-offence.

[5]

The Offender's Circumstances

The defendant was born and raised in Nigeria where he attended high school according to his trial testimony and where he had only minimal education according to what he reported to the author of the presentence report. He worked in Nigeria as a bus and taxi driver. According to his evidence at trial, he came to Canada as a refugee in 1998. According to sentencing submissions on his behalf, he came to Canada at the suggestion of this mother for economic reasons. Since about 2006, he has been the pastor of a parish of the Celestial Church of Christ, a denomination of African origin that has satellites in many parts of the world. His career as a religious leader began when he was in Nigeria. He came to be designated a “prophet” within the Celestial Church of Christ. He is now variously referred to as “reverend”, “shepherd”, “pastor” and “prophet”.

6Mr. Solomon claims that he is 44 or 45 years old. As mentioned in reasons for conviction, this is likely not a true statement of his age. He presents physically as a person of significantly greater age, he has physical afflictions that, although not impossible in a middle aged person, are more typical of an old person or of a person substantially older than 45, he disclosed to the victim when they cohabited that his stated birth date was for immigration purposes and he has always refused to tell her his true age.

7The defendant has not had acknowledged gainful occupation since 2001. Up to that time, he had been employed in Toronto as a forklift operator for about a year and a half according to his report to the author of the presentence report and for about 3 years according to his testimony at trial. He sustained a hand injury and he subsequently went onto the Ontario Disability Support Program. He has remained on disability since that time. Nevertheless, the evidence at trial disclosed that he is able to drive, that he is occupied as the pastor at his church, that he takes trips to Nigeria, and that he supplies parishioners with chattels of religious use.

8While Mr. Solomon claims to be a mere volunteer at church, I find this to be less than frank. While he cohabited with Ms T., he was “always at the church”. Around 2005, he became pastor of his own parish, an ambition that he had while second in charge at the church where he met the victim. In my view, Mr. Solomon is what the public record and what letters in his support show him to be: a minister and the president of the church charitable organization.

9The presentence report reveals a dearth of information about Mr. Solomon’s history as he was not forthcoming to the interviewer as to his past or present activities.

10There is no psychological or psychiatric information about Mr. Solomon. He reports no history of substance abuse or of mental health concerns. He reported that he had never been a victim of any type of abuse.

11There is some history of contact with the legal system as there was Children’s Aid Society involvement arising out of the impact on their children of Mr. Solomon’s and Ms T.’s lack of anger management. While to large degree the anger was between the two parents, it spilled over on occasion to the children. In 2013, when the accused and Ms T. had already been separated for several years and the children resided with Ms T., Mr. Solomon was found guilty on a charge of assault against the children. He was given a conditional discharge with probation and thus has no criminal record.

[12]

Attitude of the Offender

On the question of attitude toward these offences, the author of the presentence report states that Mr. Solomon did not express remorse for the offences but rather minimized his offending and did not accept responsibility but instead stated that the victim was to blame. During sentencing submissions, counsel for Mr. Solomon advised that Mr. Solomon’s position vis-à-vis the presentence report was that the report was incorrect. His position was that he did not express such an attitude to the interviewer and that it was a translation error on the part of the Yoruba interpreter.

13I find the disavowal to be disingenuous and yet another instance of blame shifting. Just as Mr. Solomon alleged that it was the victim who uttered a death threat against him, and that he was merely repeating to her what she said to him in uttering the threat for which he was found guilty, Mr. Solomon now seeks to deflect and to deny expression of an attitude that reflects badly on him. The position that Mr. Solomon was not responsible, and that the victim was responsible was echoed in the opinions of some of the individuals who gave interviews in Mr. Solomon’s support for the presentence report. These individuals are members of Mr. Solomon’s church or his personal friends. Some of these individuals opined that an injustice has been done and that Mr. Solomon is not guilty of any wrong-doing. As these individuals can have had no knowledge of the facts and circumstances underlying the conviction, a reasonable inference may be drawn that Mr. Solomon has disseminated to his associates his view of where blame lies for his conviction.

14At the close of sentencing submissions, Mr. Solomon was given an opportunity to address the court on his own behalf. At that time, he apologized for not asking Ms T.’s mother how old Ms T. was and he apologized for getting into an argument with Ms T., the incident that led to the conviction for uttering a threat. In my view, there is neither insight nor remorse. Mr. Solomon cannot or will not acknowledge responsibility for the offences or for their impact on Ms T.’s life.

15Defence filed numerous letters from Mr. Solomons’s friends and parishioners attesting to his character. The letters contain fulsome praise of Mr. Solomon as a leader of a religious congregation. A number of the letters also attest to his honesty. I accept the former, but do not give credence to attestations to his honesty as I found Mr. Solomon to be sparing with the truth and actively misleading when he gave testimony in court.

16Mr. Solomon’s public persona as a man of the cloth does not equate to probity in his personal life. One would expect that he will have won over a number of religious followers as evidenced by the fact that he was entrusted with formation of a new parish of the church of which he is a member. The main offences with which Mr. Solomon has been convicted, however, are intimate offences, and are not the subject of general knowledge. An offender with an apparently sterling public persona may nevertheless also act in ways in his personal life that merit neither legal nor moral approbation.

[17]

Mitigating and Aggravating Factors

The mitigating factors engaged on this sentencing are absence of a criminal record although there was a guilt finding on an earlier charge of assault, support in the church community of which the defendant is the leader, and stable occupation.

18A victim impact statement by Ms T. was filed on the sentencing. It details the circumstances of a lost youth and a cohabitation of considerable misery punctuated by sporadic violence on the part of both parties. That the victim experienced years with Mr. Solomon of unfulfilled hopes of education and employability and therefore stifled attempts at independence is clearly very sad, but I am mindful that Mr. Solomon’s character as a spouse is not an aggravating factor in the commission of the offences for which he was convicted.

19In considering whether there are any aggravating circumstances, I look at the manner and circumstances of the commission of the offence. First, I find that the nature of the sexual exploitation lies at the serious end of the spectrum. While there was no violence or threat of violence involved, there was recurrent sexual intercourse and Mr. Solomon impregnated the victim. While the victim testified, and I accept her evidence on this point, that at 15 she did not even know the facts of life and was therefore shocked to discover at 16 that she was pregnant, there is no suggestion that Mr. Solomon was equally ignorant. In terms of the consequences to Ms T., the pregnancy was the tipping point, sending her first to an attempt at suicide and then from an already precarious existence as a live in babysitter without education or parental guidance to a life of emotional isolation, drudgery and premature motherhood without supports, education or prospects.

20Section 718 of the Criminal Code, R.S.C., 1985, c. C-46 sets out the purposes and principles of sentencing. It provides: the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.

21The primary and central purposes and principles of sentencing where there has been sexual exploitation of a young person are denunciation and deterrence. While generally the state has no place in the bedrooms of the nation, the state does have a vital interest in the protection of its children. They are the country’s future and at the same time they are among the most vulnerable members of society. The state has a significant role in protecting children from those who would abuse a position of trust whether they be parents, teachers or others to whom they are vulnerable, including religious leaders. Sentencing therefore should provide a high disincentive to the offender and to others who may be inclined or tempted to offend in like manner.

[22]

Analysis of Case Law

Defence has referred me to the decisions in R. v. Anderson, 2017 ONSC 1322, R. v. Andrews, 2019 ONCJ 435 and R. v. B.S., 2004 CanLII 32226 (ON CA), 185 O.A.C. 45 (C.A.)

23R. v. Anderson, a decision of McWatt J. as she then was, involved 4 counts of sexual assault and 1 count of sexual interference against 3 male complainants. There were 4 incidents that occurred over a period of 9 years. The accused was in a position of authority over three of the complainants who he was representing as a modelling agent. Two of the complainants were 16 years old at the time of the events. The one complainant who was victim of the most intrusive assault was 24 years old. There was no intercourse in any of the incidents and in the case of one of the complainants, no touching of skin took place. The defendant was sentenced to 30 (net 28) days of intermittent custody in respect of the 24-year-old complainant, a six month conditional sentence in the case of the assault without skin touching and concurrent 18 month conditional sentences on the other convictions.

24R. v. Andrews was a sentence of 9 months conditional following conviction for sexual assault. No child or young person was involved and no breach of position of trust was involved. I am not able to find guidance in this decision.

25In R. v. B.S., 2004 CanLII 32226 (ON CA), 185 O.A.C. 45 (CA) the accused had inappropriately touched the then 13-year- old complainant over many months. B.S. was a close friend of the complainant's family and was treated like a member of the family. Despite the relationship of friendship and trust, he committed a variety of sexual acts with the complainant. B.S. was a first offender. His wife remained supportive despite the strain on their marriage. He had an excellent work record, his employment was still available to him and he also had strong community support. At trial, the Crown was not opposed to a conditional sentence. The trial judge imposed a 12 month custodial sentence. In an 8 paragraph decision, the Court of Appeal set aside the custodial sentence and substituted 12 month conditional sentences of house arrest to be served concurrently for each count. The court held in B.S. that, serious as the conduct was, the sentence imposed at trial was excessive for this type of conduct for this type of offender and also took into account fresh evidence as to the hardship that would befall the defendant’s family if he were to serve a custodial sentence. There was no mention in that case of that court’s decision in R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), the leading authority as to sentence ranges in cases of conviction for sexual offences against children. D.D. reflects the evolution of focus on the harm done to children and young persons by sexual offenders.

26In D.D., the defendant, over a 7-year period, beginning in 1990 when he was 25 and ending in 1997 when he was 32, befriended four young boys ranging in age from 5 to 8 years. For periods of time ranging from 2 to 7 years, he regularly and persistently engaged them in all manner of sexual activity. The abuse took many forms, including countless acts of masturbation and oral sex, group sexual encounters involving the appellant and several of the boys, attempted acts of anal intercourse in the case of three of the boys and completed acts of anal intercourse in the case of two. The defendant was in a position of trust in relation to the boys, he groomed them to obtain compliance and he used violence and threats to secure their silence. The gross sentence of 9 years imposed by the trial judge was not disturbed on appeal, the court holding it to be at the low end of the appropriate range.

27At para 44 Moldaver JA, wrote:

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W.(L.K.) (1999), 1999 CanLII 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)

28Despite able argument on behalf of Mr. Solomon, I am not persuaded that a conditional sentence would be a fit disposition in these circumstances. I agree that there is no evidence of likely re-offence, but that, in my view, should not be given an overly prominent weight in the balance.

29In R. v. M. (D.), 111 O.R. (3d) 721, 2012 ONCA 520, the accused was convicted of sexual assault, sexual exploitation and invitation to sexual touching. The complainant, his wife's niece, came to Canada when she was 15 years old. She lived with, and was entirely dependent upon, the accused and his family. Over the 31 months that the complainant lived in the house, the accused groomed her by exposing her to pornography, sexual touching and, on one traumatic occasion, by penetrating her with an object. He then subjected her to frequent acts of sexual intercourse, which took place at least twice a month until she moved out of the house. The court of appeal held that the trial judge’s sentence of 3 years was manifestly unfit in the circumstances and substituted a sentence of 7 years.

30The facts are very similar in many respects to those in the case at bar. The aggravating factors in that case included the grooming of a vulnerable teenager, frequent sexual intercourse; the ongoing trauma experienced by the complainant, the breach of trust, and the complete lack of remorse or any understanding of the gravity and extent of the wrongdoing on the part of the defendant. The primary sentencing factors in such cases are deterrence and denunciation. Therefore, the court held, the accused's background and his efforts at rehabilitation after his trial are accorded lesser weight in determining the appropriate sentence.

31In another case also styled R. v. D.M., the citation of which is [2012] O.J. No. 6059, 2012 ONCA 894, the defendant sexually molested his stepdaughter from the time she was 11 to the time she was 20. The abuse was found to be unrelenting although it did not involve intercourse. The sentence of 5 years imposed at trial was reduced to 4 on appeal on the basis of absence of intercourse or oral sex and the absence of a record.

32In R. v. Cromien, 2002 CanLII 4807 (ON CA), [2002] O.J. No. 354, the defendant pleaded guilty to indecent assault that took place over a period of time when he was a priest and the complainant was a 13 year old altar boy. Subsequently, the defendant left the priesthood and had married and had a child. He showed remorse and pled guilty. The victim suffered continuing psychological disorders and had attempted suicide. The trial judge imposed a 2 years less a day conditional sentence. The appeal from sentence was allowed and a two year less a day custodial sentence substituted, the court observing at para 7 that:

The approach to the task of sentencing taken by the trial judge involved a disproportionate assessment of the conduct of the respondent as it related to the question of remorse, and a fundamental failure to address how a community based sentence could achieve the objectives demanded by the principles of sentencing at work in this case. We have frequently stated that a conditional sentence should rarely be imposed in cases involving sexual touching of children by adults, particularly where the sexual violation is of a vulnerable victim by a person in a position of trust. See R. v. Bedard (2001), 2001 CanLII 8536 (ON CA), 158 C.C.C. (3d) 216 (Ont. C.A.); R. v. Gianfelice (1992), 52 O.A.C. 243 (C.A.); and R. v. Roy (1999), 1999 CanLII 2293 (ON CA), 127 O.A.C. 270 (C.A.). ….

33The gravity of the offence against Ms T. lies, in my view, at the more severe end of the spectrum. While no violence or threat of violence was involved, there was a repeated intercourse. I do not consider the breach of trust to be an aggravating factor in the commission of the offence because it is an element of the offence itself, and as may be expected in cases where a person in a position of trust or authority has obtained the acquiescence to sexual acts from a young person, such acquiescence will have been obtained through grooming rather than by duress.

34The mitigative element of community support is somewhat troubling in this case as it appears to be intertwined with and adoptive of Mr. Solomon’s denial of responsibility. Accordingly, it cannot be said that there is an acknowledgment of the harm done to the victim and to the community.

[35]

Disposition

In reliance on the ranges of sentence articulated in R. v. D.D., and bearing in mind the principles of restraint and of totality, I am of the view that an appropriate sentence is 5 years for the sexual exploitation with 6 months for the sexual assault to be served concurrently and 90 days for the uttering threat also to be served concurrently

36As primary designation offences are engaged, there will be a DNA harvesting order and an order under the Sex Offender Information Registration Act.

___________________________ Low J.