Shannon L. Pollock

The applicant sought a stay of proceedings for a retrial on charges of sexual assault and sexual interference against his stepdaughter, alleging that he was unlawfully overhold in custody for approximately sixteen hours after the Court of Appeal issued an order for his release.

The applicant argued that multiple Charter rights were breached, including rights under sections 7, 9, 10(a), and 11(e) of the Canadian Charter of Rights and Freedoms.

The Crown opposed the stay, characterizing the overhold as an inadvertent or technical breach for which alternative remedies were available.

The court dismissed the application for a stay, finding that while the conduct was offensive and systemic problems existed in the correctional system's procedures, the circumstances did not warrant the drastic remedy of a stay of proceedings.

The defendant, K.H., was charged with one count of sexual assault, alleged to have occurred while the complainant was unconscious.

The Crown presented evidence including the complainant waking up with her pants down and the defendant's DNA on an external genitalia swab.

The defence argued that the Crown failed to prove sexual assault beyond a reasonable doubt, highlighting the lack of evidence regarding the form of the DNA or how the pants were removed, and suggesting other reasonable inferences for the DNA's presence.

The court, while acknowledging general principles of DNA transfer, found the evidence insufficient to establish sexual contact of a sexual nature beyond a reasonable doubt, noting concerns about the complainant's reliability due to intoxication and the absence of physical injury.

The defendant was found not guilty.

This is a ruling on a section 715.1 application by the defendant A.T. to admit a child victim's videotaped statement as evidence in a trial involving allegations of assault.

The Crown opposed, arguing the child did not "describe the acts complained of" as required by the section, as the child denied the alleged assault (hair pulling) in her statement.

The court found that a non-verbal denial (shaking head "no") constitutes a "description" under section 715.1, and that the section does not require an affirmative or guilt-consistent description.

The application was granted, emphasizing the section's purpose to preserve the child's earliest recollection and aid truth discovery, regardless of whether the statement supports the prosecution's theory.

The Applicant, Billy Persaud-Hearns, sought a recusal order against Justice Shannon L. Pollock, alleging a reasonable apprehension of bias.

The Applicant's position was that the judge's prior authorization of a DNA warrant in an ex parte application related to a separate but similar set of allegations against the Applicant created a perception of bias.

The Crown opposed the recusal, arguing that judges are presumed impartial and capable of disabusing themselves of prior knowledge.

The court, applying the test for reasonable apprehension of bias, found that the Applicant had not met the high threshold required.

The judge's prior involvement was limited to an ex parte authorization on a separate matter, with no findings of fact or credibility made against the Applicant.

The application for recusal was dismissed.

A mid-trial Charter application was brought by the accused, Brook-Lynn Beal-Clark, alleging breaches of her fair trial rights (sections 7 and 11(d)) due to significant failures in court recording equipment, resulting in inaudible audio and indiscernible portions of the trial transcript.

The Crown proposed alternative remedies, including an agreed statement of facts or proceeding without certain evidence, or a mistrial.

The court found that the technological failures compromised the fairness of the trial and the accused's ability to make full answer and defence, determining that a stay of proceedings was the only appropriate remedy in this "clearest of cases."

Kevin Murphy pleaded guilty to one count of aggravated assault.

The incident stemmed from a road rage encounter where Murphy pursued a vehicle that had rear-ended him, leading to a physical altercation in which a passenger, Mr. Susko, was stabbed while intervening.

Mr. Susko sustained severe injuries requiring surgery.

The Crown sought an 18-month custodial sentence, while the defence argued for a conditional sentence.

The court considered aggravating factors, including the pursuit, use of a weapon, and significant victim impact, alongside mitigating factors such as Murphy's lack of criminal record, genuine remorse, and rehabilitative efforts.

Applying sentencing principles, the court imposed an 18-month conditional sentence with electronic monitoring, followed by two years of probation, a weapons prohibition, DNA order, and restitution for the victim's lost earnings.

This decision addresses a mid-trial application by the Crown to admit four out-of-court hearsay statements from two child complainants (H.B. and S.B.) in a sexual assault trial.

Due to the children's inability to provide meaningful in-court testimony, the Crown sought to admit their video-taped statements to police and H.B.'s utterances to her parents under the principled exception to the hearsay rule, requiring proof of necessity and threshold reliability.

The court found necessity was met for all statements.

For reliability, H.B.'s statements to her parents and police were deemed reliable, significantly corroborated by forensic DNA evidence.

However, S.B.'s video statement to police was found unreliable due to inconsistencies, lack of detail, and insufficient circumstantial guarantees of trustworthiness.

The applicant, Ernest Gyamfy, brought a Section 11(b) Charter application seeking a stay of proceedings due to unreasonable delay.

The total delay from charge to anticipated end of trial was 701 days, exceeding the 18-month presumptive ceiling for provincial court cases.

The court deducted 59 days for defence delay related to retaining counsel but found no other defence delay.

The Crown argued for deductions based on Covid-19 and case complexity as exceptional circumstances.

The court found that Covid-19 did not cause any actual delay in this specific case, nor was the case particularly complex.

The court also noted that the Crown could have remedied the delay caused by the co-accused's inaction by severing the accused.

As the Crown failed to rebut the presumption of unreasonable delay, the court found a breach of the applicant's Section 11(b) rights and stayed the charges.

The defence sought to quash search warrants for a vehicle and two residences, alleging police subversion of the pre-authorization process and insufficient evidence in the Information to Obtain (ITO) after excising inaccuracies.

The court found that the affiant's statements regarding tracking data and landlord information were misleading and inaccurate, leading to a Section 8 Charter breach concerning the search of one residence (350 Church Street).

However, the court did not find deliberate intent to mislead sufficient to quash all warrants for subversion of the process.

The warrants for the Sandison Street address and the vehicle remained valid.

The defendant, Timothy Attwater, brought an application under section 11(b) of the Charter for a stay of proceedings due to unreasonable delay.

The total delay from the information being sworn to the anticipated end of trial was 1265 days, exceeding the 18-month presumptive ceiling for provincial court cases set by R. v. Jordan.

The court analyzed periods of delay attributable to defence unavailability (56 days), the COVID-19 pandemic (532 days), and the death of the defendant's former counsel (373 days).

After deducting these exceptional and defence-attributable delays, the net delay was calculated at 304 days, which is well below the Jordan ceiling.

Consequently, the application for a stay of proceedings was dismissed.

The defence brought an application challenging the facial validity of a tracking warrant and multiple search warrants, alleging a breach of the Applicant's Section 8 Charter rights and seeking exclusion of seized evidence under Section 24(2).

In the alternative, the Applicant sought leave to cross-examine the affiant.

The court dismissed the application challenging the warrants' facial validity, finding that the Information to Obtain (ITO) provided sufficient credible and reliable evidence for the issuing justice to find reasonable and probable grounds.

The court applied the R. v. Debot factors for assessing confidential informant information, concluding the information was credible, compelling, and sufficiently corroborated.

While the warrants were upheld, the court granted leave to cross-examine the affiant on several specific areas, applying the R. v. Garofoli test, to ensure the Applicant could make full answer and defence.

The applicant sought a stay of proceedings under section 11(b) of the Charter, arguing unreasonable delay in his retrial.

The total delay from the appeal being granted to the anticipated end of trial was 18 months and 5 days.

The Crown argued that 1 month and 3 days of this delay was attributable to the defence for a late disclosure request, bringing the net delay below the 18-month presumptive ceiling set by R. v. Jordan.

The court agreed with the Crown regarding defence delay.

Considering the impact of the COVID-19 pandemic as a discrete event, the court found that the remaining delay of just over 17 months was not unreasonable, despite the Ontario Court of Appeal's comments in R. v. MacIsaac about retrials needing priority.

The applicant failed to demonstrate that the case took markedly longer than it reasonably should have given the pandemic circumstances.

The application for a stay was dismissed.