ONTARIO SUPERIOR COURT OF JUSTICE
Information Nos. 12-5141 CITATION: R. v Donnelly 2021, ONSC 4098
5
B E T W E E N:
HER MAJESTY THE QUEEN
10
v.
15
JOSEPH DONNELLY
20
25 D E C I S I O N
RENDERED REMOTELY BY THE HONOURABLE JUSTICE PHILLIPS
30 on February 19, 2021 at OTTAWA, Ontario
35
PUBLICATION BAN PURSUANT TO S 486.4 OF THE
CRIMINAL CODE OF CANADA
40 **********
APPEARANCES:
45
Mr. J. Lalande, Counsel for the Crown Ms. U. Kancharla, Counsel for J. Donnelly
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( i )
Table of Contents
ONTARIO SUPERIOR COURT OF JUSTICE
Exam. Cr. Re-
WITNESSES In-Chief Exam. Exam.
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E X H I B I T S
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EXHIBIT NUMBER ENTERED ON PAGE
15
L E G E N D
(ph) Transcribed as heard
20 (sp) Proper spelling not provided
(sic) Transcribed as said and not in error (....) Indicates inaudible and/or audio
failure/distortion
25 TRANSCRIPTIONIST’S NOTE: No supporting documentation provided
30 PUBLICATION BAN PURSUANT TO S. 486.4 OF THE
CRIMINAL CODE OF CANADA
35
Transcript Ordered:
February
19,
2021
Request Received:
February
22,
2021
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Transcript Completed:
February
22,
2021
DECISION APPROVED BY PHILLIPS, J.
February
26,
2021
45
FEBRUARY 19, 2021
D E C I S I O N
5 PHILLIPS, J. (Orally)
Joseph Donnelly is charged with sexually assaulting E.D. on May 18th, 2012.
10 There is quite a bit about this case that is agreed upon. On the night in question Ms. D. had been coerced into prostitution by individuals unconnected to Mr. Donnelly and was presenting herself as a 19-year-old experienced
15 sex-worker. Unaware of the coercion part of things, Mr. Donnelly picked Ms. D. up in his car and drove her to his apartment, to engage in a sex-for-money transaction. There is no dispute that Mr. Donnelly paid the complainant
20 $180 and the pair had some consensual sex.
The Crown alleges that things went criminally wrong in two ways. First, Mr. Donnelly insisted on removing his condom during
25 the intercourse and proceeded to have unprotected intercourse over the complainant’s objections. Use of a condom had been a condition precedent to her consent to intercourse and its removal so changed the
30 nature and quality of that act as to amount to sexual assault in the circumstances. Secondly,
the Crown alleges that Mr. Donnelly used a strap-on dildo to vaginally penetrate the complainant without her consent.
5 Mr. Donnelly testified. He denies ever having intercourse with the complainant without a condom securely in place. Additionally, he denies ever using his strap-on sex toy upon her in any way, shape or form. In his evidence the
10 transaction proceeded entirely as agreed upon with the couple having various sorts of sexual activity always within the bounds of consent.
It is important in the circumstances that I
15 not simply approach the evidence by choosing which narrative I prefer. I must resolve the conflict in the evidence pursuant to the well- known reasoning method outlined in W(D). If I believe Mr. Donnelly I must acquit him. Even if
20 I do not believe him, if I find that his evidence leaves me with a reasonable doubt, I must acquit him. It is only if I reject the evidence of Mr. Donnelly as incapable of leaving me with a reasonable doubt that I would go on to
25 consider whether if, on the evidence I do accept, the Crown has proven all essential elements of the offence beyond a reasonable doubt. This would mean that I must not have any reasonable doubt about E.D.’s evidence.
I reject the evidence of Joseph Donnelly.
I found his testimony to be constantly shifting, often inconsistent, and at times preposterous.
5 I found for instance his evidence about the strap-on dildo to be absolutely unbelievable. Mr. Donnelly would have me to believe that he bought the sex toy, never so much as opened it, and yet knows that it would be extremely painful
10 for him to wear.
Mr. Donnelly testified that the strap-on was designed to be worn by a woman. As such, given his evidence that he had no interest in
15 receiving anal sex, it would have had no use as between he and Ms. D. Mr. Donnelly testified that during intercourse with Ms. D., with her on top of him, he brought up the subject of the strap-on dildo in the event
20 that she might be interested in using such a thing at some point in her future. The idea that he, during sexual intercourse, would be turning his mind toward initiating conversation about what she might like to do on some future
25 day with someone other than him with an item she has already at that point indicated does not interest her is ridiculous.
As a small aside I will note that Mr.
30 Donnelly has speculated that Ms. D. must have learned about the appearance of his strap-on, including how it is strapped on, by seeing
the picture on the item’s box which she might have found after rooting through his things when he was off getting her a drink of water, an errand that occurred when the couple first
5 arrived at the apartment. This does not square at all with the fact that when he brought it up during the subsequent intercourse she appeared to him to not know anything about the item he was talking about.
10
I found that Mr. Donnelly continuously shaded his evidence to cast himself in good light regardless of the truth. An example of this would be his presentation of how it came to
15 be that he ejaculated upon the complainant’s face. It seems obvious to me that he wanted to enjoy ejaculating somewhere other than into his condom in an ordinary way. As he relates it however, the whole notion of him ejaculating
20 outside the condom was as much Ms. D.’s idea as his. Indeed, he says the couple’s initial discussion on the issue involved him simply ejaculating into the condom without taking it off at all. Then, possible alternate
25 destinations for his ejaculate were discussed as between them as part of an “ongoing sexual conversation”, going from her abdomen to her chest to her face with her, according to him, effectively participating in the brainstorming
30 as an equal participant.
I say it’s a common-sense proposition that a woman would prefer not to have a strange man ejaculate on her face. If given a menu of choices ranging from him ejaculating into a
5 condom to him ejaculating onto her face, I would expect any woman would choose the former, or at least an option short of having semen directed at her mouth, nose and eyes. The idea that E.D. cooperated in incrementally upping the ante such
10 that she would receive Mr. Donnelly’s ejaculate to her face in the joint venture way he described is unbelievable.
Really what happened is that Mr. Donnelly
15 presented the ejaculation-on-face notion as a fully formed idea. There was no escalator of rejected options considered by both before he presented that proposal. Indeed, that is what he testified to in examination in-Chief.
20 “Q. Were there any other conversations during sex?
A. I asked if I could ejaculate on her face.”
The whole abdomen to breast then face
25 progression was invented because he realized during cross-examination that his original evidence cast him as way too forward about the matter. It seemed to me in observing him cross- examined on the subject that he was making it up
30 as he went along.
Another example of Mr. Donnelly’s deceitful image management approach to his evidence came when he testified about picking Ms. D. up. He observed that she was with another woman.
5 Mr. Donnelly’s evidence about that point in time goes as follows:
“Q. You asked if her friend would be interested in doing something?
A. Yes.
10 Q. What was the purpose of that?
A. I was just asking about her friend because I didn’t know who her friend was.”
Clearly, if he wanted to know who her friend was he would have asked something more in line with
15 “Who’s your friend?”. In the circumstances, given that Mr. Donnelly was picking up a 19- year-old sex worker to come back to his place, his query about whether her friend would be interested in “doing something” is obviously a
20 query about whether that friend might be available to join in. In the context then existent, that is the only reasonable meaning that could be attached to the words in question.
25 I observe parenthetically that Mr. Donnelly has an interest in woman-on-women sex given that he went to the trouble to purchase a strap-on dildo that he says is designed to be used between two women. In any event, even if I
30 ignore that part of things, I find his assertion that he was just asking about her friend in that way because he did not know who her friend was
to be pure deceit. It is another example of his willingness to say things that are simply not true.
5 Those are but a few representative examples of instances where I found Mr. Donnelly to be incredible. There are many others frankly, too many to list. I do not believe him at all. I reject his evidence as incapable of amounting to
10 a reasonable doubt.
Of course, just because I reject Mr.
Donnelly’s evidence does not lead to conviction. I must direct the same level of scrutiny to the
15 complainant’s evidence and determine whether if, on the evidence I do accept, the Crown has proven all essential elements of sexual assault beyond a reasonable doubt.
20 While of course Mr. Donnelly did not know this, E.D. was only 17 at the material time. This is important because I have arrived to the view that there is nothing to be made of the fact that she made her disclosure in an
25 incremental and delayed way. It is an unfortunate fact in our society that despite some progress on the subject, women continue to be harshly judged in regard to their sexual behaviours and choices. In my view, the
30 apprehensiveness that a woman might feel about revealing details about her sexual experiences would be acutely felt at age 17.
I am not surprised in the least to hear Ms. D. describe herself as feeling fear, guilt and embarrassment as she disclosed what happened to her that night. I make nothing of the fact
5 that she neglected to provide the detail about the condom removal to the first police officer on-scene because I accept her explanation that she was very overwhelmed and that it was all a lot to handle. I further make nothing of the
10 fact that her revelation about the strap-on came only during an interview on May 28th, 2012 with Detective Lyle. I accept Ms. D.’s explanation about the late disclosure of that strap-on issue. In her words “I was embarrassed
15 about the strap-on but it just needed to come out”.
In my judgment E.D. was at all times a truthful witness. She always accepted the
20 limits of her knowledge and qualified her answers where necessary. Her evidence was simple and straightforward and has been consistent in my view over several iterations.
25 Importantly, I noticed when she consistently declined to make things worse for Mr. Donnelly when she clearly could have. For instance, her position is that she did not want the strap-on used upon her. She could have
30 testified that he used it over her protestations, but instead she admitted that the last word out of her mouth before the strap-on
was used by him on her was “Okay”. This admission did her position no favours. As such, it is an example of her truthfulness.
5 Mr. Donnelly was roughly twice the age he thought Ms. D. was. A grown man, he was endeavouring to buy sex from a teenager. He was literally in the driver’s seat as they went from her neighbourhood to his part of town. All
10 material events happened in his apartment, an obviously unfamiliar environment to her and a place where he would feel comfortable. It seems self-evident to me that there was a significant power imbalance as between the pair that night
15 and that that would have been clear to Mr. Donnelly.
I find as a fact that Mr. Donnelly took out his strap-on. While it might well have been
20 designed to be used principally by those who do not themselves have penises, it clearly can be worn by anyone. I say this because I believe Ms. D. when she says it was put on that night by Mr. Donnelly. It is in that context
25 that she saw it and can now describe it. No other explanation for her knowledge of its appearance makes any sense.
I believe her when she says that Mr.
30 Donnelly proposed that he use it on her to mimic penile vaginal intercourse. And I believe her when she says she declined such an unusual
suggestion. This pair had a deal that involved a sum of money that had already been paid for both oral sex and regular protected intercourse. I fully accept that Ms. D. would have
5 declined to be penetrated by a plastic sex toy essentially for free.
Ms. D. described Mr. Donnelly’s approach vis-a-vis his sex-with-strap-on
10 proposal in a way reassuringly fair to him.
Even though she had said no from the outset, she reports that he persisted in endeavouring to convince her to change her mind saying something about being gentle. As I have mentioned, she
15 testified in a way favourable to him in that she reports that she ended up ultimately saying “Okay”.
In the circumstances however, Ms.
20 D.’s “Okay” was merely her acquiescence to the inevitable, and was well short of a communication of actual consent. I accept as reasonable that it had become clear to her that regardless of how many times she would decline
25 to get on-board with his interest in using his strap-on he was going to do it anyway. After all, he had taken it out and was putting it on after she said no, while telling her he was going to be gentle.
30
Mr. Donnelly’s disregard for her continuous lack of interest and approach instead to
essentially wear her down in the context of the clear power imbalance shows him to be reckless and wilfully blind to have not seen what was there to see: that this teenager wanted nothing
5 to do with being penetrated by his strap-on dildo. He had been talking about sex toys almost since they had first met. She had never shown any kind of interest, and in fact indicated that sex toys were not her thing. The
10 suggestion that her “Okay” uttered in the context it was is indicative of consent is unreasonable in all the circumstances.
I believe E.D. when she relates that she
15 was penetrated vaginally by the strap-on dildo that was being worn by Joseph Donnelly. I believe her when she says she did not want to be so penetrated. I find that Joseph Donnelly would have appreciated this basic fact had he
20 turned his mind to the basic contents of hers. The truth is he was selfishly focussed on using her for his pleasure. He did not really care about her position.
25 One thing that the parties agree on is that
E.D. insisted that a condom be used throughout any vaginal intercourse. For his part Mr. Donnelly testified that he was very careful to make sure one stayed securely in place. As I
30 have stated, I reject Mr. Donnelly’s evidence as incapable of amounting to reasonable doubt and, as I have tried to make clear, I accept Ms.
D.’s evidence in its entirety. I found her genuine, truthful and trustworthy. Simply put: I believe her.
5 Ms. D. testified that at some point during the intercourse Mr. Donnelly proposed that he continue on without a condom and that she refused. He proceeded anyways in a way that would clearly be intercourse without consent.
10
I note again that Ms. D. is quite fair to Mr. Donnelly when she recounts this part of things. To my mind, in her original iteration on the point she did not even really
15 understand the wrongfulness of that element and it required a police detective to discern that it was indeed a criminal act. Ms. D. indicates that she is unaware about whether Mr. Donnelly ejaculated into her. Given that it
20 might arguably make him seem more cavalier about her interest if he did so, her disinclination to say that he did shows a refusal on her part to “pile it on”.
25 I have no doubt that Ms. D. would not want to have sex in an unprotected way in the circumstances. While she appears to have been quite naive about safe sex as it related to the oral sex component, I accept that she was quite
30 concerned about use of a condom during the intercourse. Her evidence on that point rings completely true and is in fact in line with Mr.
Donnelly’s testimony. I quote her from page 45 of the transcript:
“Q. What if any concern did you have about the condom being removed?
5 A. I didn’t know this person. I didn’t know. My biggest fear when I was just starting to have sex was when I was with my boyfriend was pregnancy. Like, that’s one of the biggest fears about sex beside STIs
10 but I wasn’t - I was mostly thinking about just the fact that like I’m going to - I could be pregnant after this if he decides to do that. Like, that’s what was running through my mind. And just the fact that I
15 didn’t know who he was and I don’t really remember anything else besides that.”
I say again that to me that evidence rings true.
Ms. D.’s assertion of rough sex is
20 corroborated somewhat by the sexual assault nurse examiner who detected tenderness on Ms. D.’s body consistent with having been subjected to rough intercourse. While of course that evidence depends on Ms. D., it seems
25 unlikely to me that she would have the intellectual wherewithall to make up tenderness in the area in question as some sort of fabricated element of corroboration. Surely it would have been more obvious and easier to just
30 make up tenderness in the area that would have been most directly affected - in other words, the vagina itself.
I also note that there was white staining observed under a special light able to detect biological material on both Ms. D.’s upper inner thighs as well as over her pubic bone
5 area. Furthermore, I note that Mr. Donnelly’s sperm was found on Ms. D.’s external genitalia.
Of course it is possible that these stains
10 and that sperm could have arrived where they ended up through any number of ways other than unprotected intercourse. Anything is possible. In my judgment however, on the actual evidence before me, the most likely explanation is that
15 E.D. is telling the truth about what Joseph Donnelly did to her. This is a case where the simplest explanation is in fact what happened. The idea that sperm and other biological material was put where it was discovered through
20 various forms of activity by Ms. D. is unreasonable in these circumstances.
That said, I will point out that the corroboration aspect of the biological material
25 found on E.D.’s body plays only a tiny role in my analysis. Even if none of that evidence existed I would still make the findings I have made. As I have attempted to make clear in these Reasons, I simply reject the evidence of
30 Joseph Donnelly and I accept absolutely the evidence of E.D. It is on that credibility analysis done through the prism of W(D) that
this case turns. The corroboration aspect emanating from the DNA testing is quite frankly superfluous.
5 In sum, I find as a fact that Joseph Donnelly penetrated E.D. with a strap-on dildo despite the fact that she did not want him to do that, and that he knew or ought to have known as much. Furthermore, I find as a fact that Joseph
10 Donnelly subjected Ms. D. to intercourse without a condom despite her objections. Condom use on his part was a condition precedent to any consent she had given to intercourse and proceeding without a condom in the circumstances
15 was tantamount to intercourse without consent.
I find Joseph Donnelly guilty of sexual assault.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
5
I, J. Walsh, certify that this document is a true and accurate transcription to the best of my skill and ability, quality of the audio recording and notes provided, of R. v Joseph
10 Donnelly in the Ontario Superior Court of Justice held at Ottawa, Ontario, taken from Recording 0411_CR31_20210219_082632_10, as recorded and certified by J. Hunt in Form 1.
15
J. Walsh, C.C.R.
Certified Court Reporter/Transcriptionist ACT No. 1184021333
20
Date
25
DECISION APPROVED BY PHILLIPS, J. FEBRUARY 26, 2021
30 THIS CERTIFICATION DOES NOT APPLY TO THE DECISION
WHICH WAS JUDICIALLY EDITED