



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. 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
    appellants 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 complainants 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 complainants 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 complainants 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] 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 Crowns 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.


