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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant’s 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. DiMichele, 2020 ONCA 48

DATE: 20200127

DOCKET: C64049

Benotto, Paciocco and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Giuseppe DiMichele

Appellant

Giuseppe DiMichele, acting in person

Brian Snell, appearing as duty counsel

Andrew Hotke, for the respondent

Heard: January 14, 2020

On appeal from the conviction entered on February 17, 2017 and the sentence imposed on April 25, 2017 by Justice Mark L. Edwards of the Superior Court of Justice, with reasons for sentence reported at 2017 ONSC 2550.

REASONS FOR DECISION

[1] The appellant was found guilty of sexual assault and sexual interference. He was sentenced to 40 months’ custody and was given no credit for time spent under house arrest awaiting trial. He appeals both the conviction and sentence. At the conclusion of oral submissions, we advised the parties that the appeal was dismissed with reasons to follow. These are the reasons.

[2] The trial judge found that the appellant sexually assaulted a 15-year-old girl whom he had employed for a few days. The complainant testified that she and her 19-year-old friend went to the appellant’s hotel room to get paid. He poured her a drink, which she believed was whisky. She left and consumed more alcohol and ingested drugs before returning to the hotel room where her 19-year old friend had remained. Thereafter, she had no memory of what occurred until she awoke in the hotel room and found the appellant on top of her having sexual intercourse. She ran out of the room naked and screaming.

[3] The hotel security video shows the complainant running out of the hotel room naked. In addition, a witness saw her collapsed under a tree near the hotel, crying and screaming. Her friend also testified that shortly after, the complainant was distraught, repeating: “he raped me”.

[4] No forensic evidence linked the appellant to the complainant, although DNA swabs had been taken from both of them.

[5] The appellant appeals on the basis that the trial judge erred in relying on the statement made to the complainant’s friend, “he raped me”, for the truth of its contents. This statement, he submits, was hearsay and not possible to admit as res gestae because it was made 20 minutes after the complainant left the hotel room. He also contends that it was an inadmissible prior consistent statement.

[6] We do not agree. The act of making the statement was part of the complainant’s distressed reaction to the events that had happened shortly before. The fact she made that statement was therefore admissible as part of the narrative and properly before the court. There is no basis for concluding that the trial judge relied upon the statement for the truth of its contents, or for its consistency with subsequent statements. It was in his summary of evidence that the trial judge referred to this statement. He did not do so in his analysis. In the analysis portion of his decision, the trial judge made clear that he accepted the complainant’s evidence primarily because of the independent security video showing her leaving the hotel room naked and hysterical and the evidence of the independent witness who saw her under the tree.

[7] The appellant further submits that the trial judge erred by concluding, in the absence of forensic evidence, that intercourse had taken place. He characterizes this as a W.(D.) error because the trial judge did not directly advert to the second part of the test: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[8] Again, we do not agree. The trial judge commented on the absence of forensic evidence establishing intercourse, saying, “The fact that such evidence was not presented to the Court does not mean that the Crown has failed to prove the case against Mr. DiMichele beyond a reasonable doubt.” This passage makes clear that the trial judge concluded that the absence of forensic proof of intercourse did not raise a reasonable doubt. He also found that the Crown’s evidence as a whole established guilt beyond a reasonable doubt. He was entitled to come to this conclusion. There was no basis on the evidence for concluding that the absence of forensic evidence casts meaningful doubt on whether intercourse occurred. Moreover, in this case the complainant showered before the forensic testing.

[9] We do not agree that the sentence of 40 months was manifestly unfit. The sentence was fit and within the appropriate range in light of: the nature of the assault; the age of the complainant; the position of trust the appellant was in (as her employer, albeit for a very short time); and the fact that the appellant had a prior criminal record for unrelated offences.

[10] While the trial judge did not give the appellant credit for time spent on restrictive bail conditions, this was because, as the trial judge noted, he had breached his bail conditions by consuming alcohol and driving while under the influence.

[11] The conviction appeal is dismissed. Leave to appeal the sentence is allowed, but the sentence appeal is dismissed.

“M.L. Benotto J.A.”

“David M. Paciocco J.A.”

“Thorburn J.A.”