



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    any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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 complainants
    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(iii)     REPEALED: S.C. 2014,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    identify the victim shall not be published in any document or broadcast or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

CITATION:
R. v. Ajimotokan,
    2021 ONCA 616

DATE: 20210913

DOCKET: C68557

Hoy, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Samsuldeen Ajimotokan

Appellant

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 appellants
    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 judges finding that he had not responded at all to
    treatment in the past was not correct.

[9]

This was the appellants 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. Pearces 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 judges finding that the accuseds 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.


