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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Potvin, 2012 ONCA 113

DATE: 20120217

DOCKET: C43975

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roger Marcel Potvin

Appellant

Roger Marcel Potvin, appearing in person

Shannon O’Connor, as duty counsel

Jamie Klukach, for the respondent

Heard and released orally: February 9, 2012

On appeal from the conviction for sexual assault entered by Justice Hugh Fraser of the Ontario Court of Justice, sitting without a jury, on April 1, 2005.

ENDORSEMENT

[1] The appellant was convicted of sexual assault, criminal harassment and various breaches of recognizance. He appeals only his conviction for sexual assault, arguing that the trial judge erred in his consideration of the appellant’s alternate defence of honest but mistaken belief in consent.[^1]

[2] The complainant testified that on the night in question, she repeatedly declined to have sex with the appellant, telling him “no” on five separate occasions and that she was feeling ill and she was menstruating. She testified that she finally said “okay” only when the appellant refused to take “no for an answer” and persisted in his efforts to have sex notwithstanding her refusals and resistance. In these circumstances, we agree with the trial judge that the appellant was obliged to take steps to determine whether there was a reasonable basis for belief in the complainant’s consent.

[3] On behalf of the appellant, duty counsel submits that it was reasonable for the appellant to believe that the complainant was consenting to sex because she ultimately said “okay”.

[4] We disagree. It was precisely when the complainant said “okay” – after repeatedly saying “no”, providing various reasons for why she did not want to have sex, and resisting the appellant’s efforts to take her into the bedroom of her apartment – that the appellant’s obligation to take steps to ascertain whether there was a reasonable basis for his belief in the complainant’s consent arose. There is simply no evidence that the appellant did anything to ascertain if the complainant was in fact willing to have sex. Instead, on the uncontradicted evidence of the complainant, which the trial judge accepted, the appellant “acted as if he hadn’t heard anything”.

[5] The appellant argues that the trial judge erred by failing to view the reasonableness of his belief in the complainant’s consent in the context of all the applicable circumstances as known to the appellant.

[6] Again, we disagree. The pertinent facts known to the appellant were straightforward. The complainant repeatedly said “no” to sex and then appeared to say “yes” by uttering the word “okay”. Viewed in the context of all that preceded it, we agree with the trial judge that the complainant’s use of the word “okay” was ambiguous. In the absence of further inquiry by the appellant, a single “okay” after five refusals over a sustained period of time was simply insufficient to ground a reasonable but mistaken belief in consent.

[7] The appeal from conviction on sexual assault is therefore dismissed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A. ”

“Paul Rouleau J.A.”

[^1]: Although the appellant originally also advanced ineffective assistance of counsel as a ground of appeal, he abandoned this claim prior to argument of his appeal.