CITATION: R. v. Potvin, 2009 ONCA 372

DATE: 20090505

DOCKET: C48830

COURT OF APPEAL FOR ONTARIO

MacPherson, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roger Potvin

Appellant

Roger Potvin, in person

Delmar Doucette, duty counsel

Michal Fairburn, for the respondent

Heard: April 22, 2009

On appeal from the convictions entered by Justice S.J. Hunter of the Ontario Court of Justice on December 19, 2007.

ENDORSEMENT

[1] The appellant was convicted of one count each of committing an indecent act in a public place and breach of recognizance, and two counts of breach of probation. He received a global sentence of nine months’ imprisonment, followed by three years’ probation. A D.N.A. databank order and a weapons prohibition order were also imposed. The appellant appeals his convictions, having abandoned his appeal against sentence.

[2] The predicate offences arose from an incident that occurred at approximately 9:45 p.m. on the evening of July 30, 2006 in the city of Ottawa. The complainant alleged that she observed the appellant driving his car slowly and in a suspicious manner in her neighbourhood. She said that the appellant indicated that he needed directions and held a map outside his car window as the complainant approached his vehicle. While the complainant was providing the requested directions, the appellant gradually moved the map back into the car, eventually placing it on or near his lap. The complainant leaned into the car to point out her suggested route to the appellant’s destination on the map. As she did so, the map fell away, revealing the appellant’s exposed penis, which the complainant then inadvertently “poked”.

[3] The appellant provided a starkly different version of events in his trial testimony. He said that when he stopped his car in order to examine a piece of paper containing directions to his destination, the complainant approached his vehicle of her own accord and tapped on his window, inquiring whether he was lost. The appellant claimed that when he rolled down his window to reply, the complainant leaned through the window and reached over the appellant to “grab” the paper that the appellant had been examining. According to the appellant, a “tug-of-war” then ensued with the complainant over the possession of the piece of paper, during which the complainant yelled at the appellant, accused him of being a thief, and threatened to call the police. The appellant maintained, in effect, that he responded by inviting the complainant to call the police, driving his vehicle forward to provide the complainant with a view of his licence plate, and then proceeding on his way.

[4] The trial judge accepted the complainant’s evidence. He rejected the appellant’s testimony, indicating that key elements of the appellant’s version of events made “absolutely no sense”, lacked credibility and reliability and were “fanciful at best”. He concluded, “on the totality of the evidence”, that nothing raised “any reasonable doubt as to what occurred [at] the time and place in question”. Accordingly, he convicted the appellant of the crimes charged.

[5] On behalf of the appellant, duty counsel argues that the trial judge misappre-hended the complainant’s evidence, leading to an unreasonable verdict. He points out that during cross-examination, the complainant was shown a wooden key chain and asked if she had ever seen it before. It was then suggested to the complainant that if the key chain was sitting on the appellant’s lap in a dark car, “it could very easily resemble a penis”. The following exchange took place regarding the key chain:

Q. Is this possibly what you saw and touched that evening?

A. May I touch it?

Q. Sure, of course.

A. Well, it feels different but I don’t know. I don’t know.

Q. Okay.

A. I don’t know.

[6] On the basis of this exchange, duty counsel argues that the complainant admitted to uncertainty regarding the events alleged, in particular, concerning the indecent act described by her during her examination-in-chief. This admission, duty counsel asserts, necessitated the appellant’s acquittal on all charges.

[7] We disagree. A review of the entirety of the complainant’s evidence indicates that she was clear and precise in her testimony regarding the fact of the appellant’s exposure of his penis and the surrounding circumstances. It was open to the trial judge to accept this evidence, notwithstanding the defence suggestion that the complainant had mistaken a wooden key chain for the appellant’s penis. We say this for three reasons.

[8] First, the trial judge was alive to the complainant’s response to the defence hypothesis that she had observed and touched a wooden key chain, rather than the appellant’s penis. But he correctly noted that the complainant had said that the key chain did not feel like what she had touched. Thus, although the complainant did not reject the possibility that she had seen and touched a key chain, she did not concede that she had done so. Nor did she resile in any way from her account of what she said had transpired with the appellant.

[9] Second, the transcript of the appellant’s evidence at trial reveals that he never actually asserted that the complainant had seen and touched a wooden key chain rather than his penis. Virtually at the outset of his testimony, and without prompting from his counsel, the appellant introduced the subject of a wooden key chain that he said was present in the front seat of his car on the night in question. But he did not assert that the complainant had seen or touched the key chain.

[10] The trial judge was mindful of this important omission in the appellant’s testimony. He put it this way:

[T]his key [chain] was put forward very quickly in evidence before it was even asked of him and how it came to be and how it rolled on the floor and why he picked it up and yet it apparently played absolutely no part, in my assessment of the evidence, of what he said had happened. There is no sugges-tion that she had reached in and accidentally touched this object or there is no suggestion that her version of events that it was possible that something like [the key chain] could portray itself as a penis [sic]. In my view that introduction bears no resemblance to the reality of the facts.

[11] Thus, although defence counsel posited the theory that a key chain was mistaken by the complainant for the appellant’s penis, in the end this hypothesis was entirely speculative and unsupported by any evidence, including that of the appellant himself.

[12] Finally, as we have said, the trial judge rejected the appellant’s evidence in its entirety. He gave numerous cogent reasons for so doing. His assessment of the evidence, including his credibility findings, attract great deference from this court.

[13] The conviction appeal is dismissed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“H.S. LaForme J.A.”