


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    that could identify the complainant or a witness shall not be published in any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 OConnor, 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
    appellants 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 complainants 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 appellants efforts to take her into the bedroom of her
    apartment  that the appellants obligation to take steps to ascertain whether
    there was a reasonable basis for his belief in the complainants 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 hadnt heard anything.

[5]

The appellant argues that the trial judge erred by failing to view the
    reasonableness of his belief in the complainants 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 complainants 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.


