



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    that could identify the complainant or a witness shall not be published in any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

CITATION: R. v. Dimmick, 2015 ONCA 402

DATE: 20150604

DOCKET: C57990

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

[1]

Following 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.

[2]

In her reasons, the trial judge rejected the appellants evidence, and
    found it did not raise a reasonable doubt. On appeal the appellant does not
    take issue with the trial judges 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 judges 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.

[3]

We 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.

[4]

The 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 complainants evidence be tested in light of
    all the other evidence presented. Our review of the reasons indicates that she
    did just that.

[5]

The 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 appellants 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.

[6]

The trial judges findings which led her to explicitly reject the
    appellants 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.

[7]

The 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 judges 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.

[8]

The 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.

[9]

The 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 judges reasons amply explain her
    credibility findings. The appeal as to conviction is dismissed.

[10]

In
    regard to the sentence appeal we are of the opinion that the trial judges
    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 appellants age but
    refused to give a seniors discount. While leave to appeal sentence is given,
    the sentence appeal is dismissed.

[11]

In
    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.


