Court File and Parties

COURT FILE NO.: 22-0519, 21-0848, 22-0206 DATE: January 16, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Richard Morris for His Majesty the King

- and -

S.S Ashish Duvadie as counsel for Virginia Dolinska Accused

HEARD: January 13, 2023

REASONS FOR DECISION

James J.

Introduction

[1] This is an application to discharge Virginia Dolinska as counsel of record for the accused, S.S.

[2] Mr. S is charged with the following:

• Sexual Assault on a Person Under 16 Years of Age under section 271;
• Invitation to Sexual Touching Under 16 Years of Age under section 152;
• Sexual Interference under section 151;
• Sexual Exploitation under section 153(1)(a);
• Sexual Exploitation under section 153(1)(b);
• Extortion under section under section 346 (1.1)(b);
• Bestiality under section 160(1);
• Failure to Comply with his Undertaking x2 under section 145(4)(a);
• Uttering Threats under section 264.1(1)(a) and;
• Failure to Comply with his Release Order under section 145(5)(a).

[3] He has been in custody since April 2022.

[4] In August 2022 Ms. Dolinska received an anonymous phone call wherein the caller referred to her as the “perv’s lawyer” and “sicko Jewish pig” and indicated that she should “take care” and that she wouldn’t want her “car to be set on fire.”

[5] More recently, on some occasion subsequent to December 7, 2022 she received another anonymous call wherein the caller said that her whereabouts are known and made a reference to “not breaking her neck.”

[6] She deposed that as a result of these calls, she feared for her safety and well-being. Consequently, she felt that she was “not in a position to act any further on Mr. S’s matters.”

[7] Mr. S has elected trial by judge and jury with a trial date set for September 2023. There is also a severance application date set for March 22, 2023.

[8] Ms. Dolinska also referred to a meeting with her client on December 7, 2022 and that as a result of that discussion that took place “there may be a loss of trust and confidence in the solicitor client relationship.”

[9] At the hearing of the application Mr. S said that he had not lost confidence in Ms. Dolinska as his lawyer.

[10] I have considered the potential prejudice to the accused that may arise if Ms. Dolinska is permitted to withdraw. There is a risk that the “set dates” may have to be revisited where any delay would be especially prejudicial because Mr. S is in custody.

[11] I note that although the pretrial severance application may have to be delayed to accommodate the schedule of replacement counsel, there is adequate time in the court calendar to reschedule the application to accommodate the scheduled trial date. At this time it is premature to speculate that the existing trial date may have to be vacated.

[12] There is another consideration and that is the wish of the perception that defence counsel was not fully committed to the defence of the accused because of fears for her personal safety. Such a perception, erroneous as it may be, is contrary to the interests of justice.

Disposition

[13] An order shall issue permitting Ms. Dolinska to withdraw as counsel for the accused.

[14] This matter shall be returned to be spoken to on January 27, 2023, at 10:00 a.m. to address the retaining of new counsel for Mr. S. Ms. Dolinska shall communicate this decision to Mr. S forthwith and provide him with a copy of this endorsement. Crown counsel is requested to arrange for Mr. S’ s attendance, in person or by video link, at the next appearance.

[15] Order accordingly.

Justice M. S. James

DATE RELEASED: January 16, 2023