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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant's 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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

Date: 2018-06-22 Docket: C61547 Panel: Hourigan, Pardu and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Joseph Donnelly Appellant

Counsel: 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 complainant's 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 appellant's defence and undermined his position that the acts never occurred. This error was compounded by the trial judge's misstatement of the appellant's 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 appellant's 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.