



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 own 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 judge, the judge or justice shall
    consider

(a) societys 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(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4
th
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

CITATION: R. v. Diaz, 2018 ONCA 191

DATE: 20180226

DOCKET: C63402

Sharpe, Pepall and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jose Diaz

Appellant

Cate Martell, for the appellant

Jill Witkin, for the respondent

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.


