



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), (2.1), (2.2), (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    information that could identify the victim or a witness shall not be published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, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(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 victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. Donnelly, 2018 ONCA 575

DATE: 20180622

DOCKET: C61547

Hourigan, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Donnelly

Appellant

Uma Kancharla, for the appellant

John A Neander, for the respondent

Heard and released orally: June 20, 2018

On appeal from the conviction entered on April 17, 2015 by
    Justice McLean of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

Introduction

[1]

The appellant was convicted of the sexual assault of a 17 year old woman
    who had been forced into the sex trade by others.

[2]

He raises three grounds of appeal: (i) the trial judge erred in placing
    the defence of honest but mistaken belief in consent to the jury because it
    lacked an air of reality; (ii) Crown counsel conducted an improper cross-examination
    of him and delivered an inflammatory closing address; and (iii) ineffective
    assistance of trial counsel.

[3]

Much of the evidence regarding the account between the appellant and the
    complainant is undisputed. She met the appellant at his car and they drove to
    his apartment. The complainant told the appellant that she was 19 years old and
    that she had some experience in the sex trade. In fact, she was 17 years old
    and the appellant was her first customer.

[4]

The complainant testified that she went along with oral and protected
    vaginal sex. According to the complainant, during the sexual intercourse the
    appellant pulled a strap-on out of his drawer and asked if they could use it.
    The complainant said that she told the appellant no but he proceeded to
    penetrate her with it. Further she testified that the appellant removed his
    condom and continued vaginal intercourse, despite the fact that she had told
    him to keep the condom on.

[5]

In his testimony, the appellant admitted to the oral and protected
    vaginal sex, but denied that they had sex without a condom or that he used a
    strap-on. He also denied ejaculating into the complainants vagina but
    testified that he ejaculated onto her face with her permission.

[6]

The appellant submits that there was no air of reality to the defence of
    honest but mistaken belief in consent. He says it was entirely inconsistent
    with his testimony that he did not have sex without a condom or use a strap-on
    with the complainant. We agree with the appellant that the instruction should
    not have been given as we see no air of reality to the defence.

[7]

Even if there was some basis for the instruction, the manner in which it
    was put to the jury obscured the appellants defence and undermined his
    position that the acts never occurred. This error was compounded by the trial
    judges misstatement of the appellants position, that the offences did not
    occur, in giving the charge and in answering a question from the jury. He told
    the jury that the appellants position was that he honestly believed that the
    complainant had consented to the acts complained of; he testified that the acts
    complained of did not take place. In our view, the charge, as given, would only
    serve to confuse the jury. In the circumstances a new trial is required. Given
    this conclusion it is unnecessary to consider the other grounds of appeal.

[8]

The appeal is allowed, the conviction is set aside, and a new trial is
    ordered.

C.W.
    Hourigan J.A.

G.
    Pardu J.A.

I.V.B.
    Nordheimer J.A.


