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), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 OF APPEAL FOR ONTARIO
Weiler, Tulloch and van Rensburg JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Michael Dimmick
Appellant
Alan D. Gold and Melanie J. Webb, for the appellant
Lucy Cecchetto, for the respondent
Heard: June 1, 2015
On appeal from the conviction entered on June 13, 2013 and the sentence imposed on December 18, 2013 by Justice M.L. Benotto of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1Following a trial by judge alone, the appellant was convicted on all counts of a 14 count indictment charging him with various counts of indecent assault against four complainants and one count of buggery in relation to each of two of the complainants. He was sentenced to a term of imprisonment of seven years. He appeals both his conviction and sentence.
2In her reasons, the trial judge rejected the appellant’s evidence, and found it did not raise a reasonable doubt. On appeal the appellant does not take issue with the trial judge’s findings in this regard. In relation to the question of whether, notwithstanding this, the Crown had proven its case beyond a reasonable doubt with respect to each of the complainants, the appellant makes three interrelated submissions concerning the trial judge’s reasons: The trial judge failed to give effect to relevant evidence. This failure led her to make unreasonable findings of credibility respecting the Crown witnesses. The reasons are insufficient because they fail to address credibility deficiencies and issues to which the appellant was entitled to have the trial judge advert.
3We would not give effect to these submissions. The charges related to the 1968 to 1978 time frame when the appellant was a friend of the S. family. He was a hockey coach and both D.S. and J.S. played hockey. The appellant became friends with the family, visiting their home and cottage frequently and, in addition, he took the boys and two of their friends on a one week camping trip on two successive years.
4The trial judge correctly charged herself as to the principles of law applicable in relation to the evidence of each of the complainants and in particular noted that, “Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant’s evidence be tested in light of all the other evidence presented.” Our review of the reasons indicates that she did just that.
5The trial judge did not fail to give effect to relevant evidence. When making her credibility findings the trial judge took into consideration the submissions now made by the appellant’s counsel concerning the evidence including the following:
- that the assaults could not happen in the boys’ bedroom without D.S. and J.S. witnessing the sexual assaults on each other;
- the improbability of the assaults, their duration and frequency having regard to the proximity of the parents and risk of detection;
- the inability of D.S. and J.S.’s father, G.S., to recall the piggy back rides to the boys bedroom, the appellant putting them to bed and reading them a story, which D.S. and J.S. described as a prelude to sexual activity;
- that D.S. said he received gifts from the appellant, including a set of golf clubs after he had attempted anal penetration, but other members of the family did not recall him receiving any golf clubs;
- that D.S. delayed in reporting sexual abuse to the police after a general complaint to his father.
6The trial judge’s findings which led her to explicitly reject the appellant’s improbability argument were not unreasonable. The parents trusted the appellant and suspected nothing. They allowed the appellant unrestricted access to their children and he often slept in the same bedroom as they did. The victims did not complain because of their shame and embarrassment.
7The appellant submitted that the trial judge did not address an important conflict in the evidence concerning whether two of the complainants, R.S. and S.R., spoke to each other about abuse by the appellant. In oral argument however, he fairly acknowledged that, in her reasons the trial judge expressly stated she approached the evidence of S.R. cautiously because he did not recall speaking to R.S. about the appellant. The appellant submitted that this was an inadequate treatment of the conflict in their evidence on this point. But the trial judge’s treatment of the conflict in the evidence did not end with this comment. After cautioning herself the trial judge made a finding that there was evidence that supported both events of abuse S.R. described. Her treatment of the conflict in the evidence was appropriate.
8The appellant also suggests that D.S.’s memory is unreliable and his statement that he was able to better remember the events that had taken place now than when the proceedings initially began cannot be true; he may honestly believe what he says but people do not have a better recollection as time goes by. In considering the weight to be attached to D.S.’s evidence, the trial judge did address the issue of reliability. She gave detailed reasons for her credibility findings with respect to D.S. as well as the other complainants.
9The trial judge did not rely on similar fact evidence save in one respect, which she was entitled to do. While she may not have resolved all the conflicts in the evidence, or the conflicts between the evidence of various witnesses, she was not required to do so; she did not ignore relevant evidence, she dealt with the broad categories of relevant contradictions raised, and her findings were not unreasonable. The trial judge’s reasons amply explain her credibility findings. The appeal as to conviction is dismissed.
10In regard to the sentence appeal we are of the opinion that the trial judge’s sentence of seven years for repeated acts of sexual assault over an extended period of time, including fondling, oral sex, and one incident of anal intercourse in respect of each of the two complainants was not outside the range and was fit. She properly took into account the appellant’s age but refused to give “a senior’s discount”. While leave to appeal sentence is given, the sentence appeal is dismissed.
11In addition to the seven year sentence, the trial judge imposed a lifetime SOIRA order. The maximum terms for the offences were 10 and 14 years. The respondent Crown agrees with the appellant that the trial judge erred in this regard and that the order should be reduced to 20 years and we so order. The appeal is otherwise dismissed.
“K.M. Weiler J.A.”
“M. Tulloch J.A.”
“K. van Rensburg J.A.”```
