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(1), (1.1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(1.1) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or the justice who will preside at the proceedings or, if that judge or justice has not yet been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider:

(a) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants who are involved in the proceedings;

(f) whether effective alternatives to the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the proposed order; and

(h) any other factor that the judge or justice considers relevant.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4th Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c. 43, ss. 4, 8; 2010, c. 3, s. 4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

Court of Appeal for Ontario

Date: 2018-02-26

Docket: C63402

Panel: Sharpe, Pepall and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Jose Diaz Appellant

Counsel

For the Appellant: Cate Martell

For the Respondent: Jill Witkin

Heard and Released Orally: February 21, 2018

On Appeal From: The conviction entered on January 17, 2017 by Justice Irving W. André of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant raises a single ground of appeal against his conviction for sexual assault following a jury trial. The appellant submits that the trial judge erred by refusing to instruct the jury on the defence of honest but mistaken belief in consent. The charge related to a single act of anal penetration that followed consensual oral and vaginal intercourse.

[2] The complainant testified that while she agreed to the oral and vaginal sex, she repeatedly and unequivocally told the appellant to stop his attempt to penetrate her anally and she squirmed and attempted to get away from him as he continued. She only stopped resisting when he continued and she thought it would be less painful to relax.

[3] The appellant gave a very different version. He testified that after he had partially inserted his penis, he asked her if the anal sex was okay and she said yes.

[4] We are not persuaded that the trial judge erred in ruling there was no air of reality to the defence of mistaken belief in consent. There were two conflicting accounts that did not lend themselves to being spliced in a manner capable of sustaining that defence. The appellant's account was that this was a case of actual consent. The trial judge was correct in finding that there was no air of reality to the defence of mistaken belief in consent.

[5] Accordingly, the appeal is dismissed.

Robert J. Sharpe J.A.

S.E. Pepall J.A.

Fairburn J.A.