R. v. O’Hara –, 2022 NBKB 182

Citation: R. v. O’Hara – 2022 NBKB 182 Date: 20220928 COURT FILE NO: FCR-9-2021 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: HER MAJESTY THE QUEEN -and- JOSHUA O’HARA REASONS FOR DECISION Dates of Hearing: April 19, 21, 26, 27, 28 and May 3, 2022 Date of Decision: May 9, 2022 Before: Mr. Justice E. Thomas Christie Representation of Parties at Hearing: Rodney A. Jordan and Christopher R. Lavigne solicitors for the Crown David M. Lutz, Q.C., solicitor for the Accused Christie, J. (Orally) I. INTRODUCTION [ 1 ] Mr. O’Hara is charged with two counts on a single indictment. In

summary, he is charged that between July 29, 2019 and August 12, 2019, and knowing that Robby Polchies had murdered Corey Sisson, he assisted Mr. Polchies for the purpose of enabling his escape contrary to s. 240 of the Criminal Code of Canada . Also, he has been charged with having in his possession a 2015 Dodge Ram 1500 truck, with a value in excess of five thousand dollars, knowing that the vehicle was obtained by the commission of an offence, thus acting contrary to s. 355(1) (

a) of the Criminal Code . [ 2 ] On this second count, of possession of stolen property, Mr. O’Hara pled guilty. Following a review of the agreed facts, the elements of the offence and, being satisfied that the plea was informed and voluntarily made, I accepted his plea of guilt and I convict Mr. O’Hara of that charge. [ 3 ] With respect to the first count, of being an accessory after the fact, Mr. O’Hara proceeded to trial, putting the Crown to the burden it carries of establishing guilt beyond a reasonable doubt.

In these reasons, it is my intent to summarize the evidence received by the court and, in doing so, it may be that the parties do not hear reference to each piece of evidence provided. Nevertheless, the parties must be assured that I have considered it all. Moreover, while these reasons are being given orally, I do intend to produce a written version and retain the prerogative of correcting for grammatical errors and supplementing with further authorities where I feel it to be appropriate. In the event an appeal may be considered necessary I would direct counsel to rely on the transcript of these reasons for that

purpose as the timing of the release of the written version is uncertain. II. OVERVIEW [ 4 ] Appended to these reasons is the Agreed Statement of Facts (pursuant to s. 655 and s. 657.2(2) CCC ). These facts, as stated, are taken as being proven without the need for further evidence. I will not read them now since they are familiar to all those involved in this case. It is from the Agreed Statement that the following overview is taken [I would encourage the reader to begin by reading the agreed statement of facts]. [ 5 ] This case arises from the tragic and planned murder of Corey Sisson on July 29, 2019. Mr.

Robby Polchies has be convicted of committing the murder. Mr. Polchies and Mr. O’Hara are associates. Mr. Sisson owed money to Mr. Polchies and Mr. Polchies was going to collect, one way or the other. Mr. O’Hara appears to have played a

part in the planning of the circumstances surrounding the tragedy which would take place on July 29, 2019. The shotgun used by Mr. Polchies to murder Mr. Sisson was owned by Mr. O’Hara and provided to Mr. Polchies. Mr. Polchies drove Mr. Sisson to the place where he would be fatally shot in a blue GMC truck owned and provided to him by Mr. O’Hara. [ 6 ] In the morning hours of July 29 th , Mr. Sisson stole the 2015 Dodge Ram 1500 truck owned by his mother, Ms. Hannah London. Mr. Polchies, Mr. Sisson and Mr. O’Hara planned to sell the stolen truck and split the proceeds. Approximately midmorning, Mr. O’Hara, Mr.

Sisson, and Mr. Polchies met at the apartment of an associate, Mr. Darrell Green, who lived on Smythe Street, Fredericton. Shortly thereafter, Mr. O’Hara and Mr. Green took the Dodge Ram and drove to Ringo’s restaurant and then to the home of Emily Goodine in Marysville. Mr. O’Hara was, at that time, driving the stolen Dodge Ram. Around the same time, Mr. Polchies, his girlfriend Ms. Williams, and Mr. Sisson, headed off in Mr. O’Hara’s blue GMC truck – with Mr. O’Hara’s shotgun in the truck. Mr. Polchies, shortly thereafter, murdered Mr. Sisson by shooting him on a secluded back trail in the Noonan area.

His body was left where he had been shot by Mr. Polchies. Mr. Sisson’s body was later discovered by police with the assistance of Ms. Williams. [ 7 ] After killing Mr. Sisson, Mr. Polchies and Ms. Williams headed back into town, stopping at a gas station in Pepper Creek on the way. Mr. Polchies, with Mr. O’Hara’s GMC truck, can be seen on still pictures taken from the CCTV of the gas station. The distinctive back rack on the truck is clearly visible. Mr. Polchies and Ms. Williams met up with Mr. O’Hara and Mr. Green at Mr.

Green’s apartment after the murder. [ 8 ] In substance, what happened after the murder is of most significance in this trial given the charge of being an accessory after the fact to murder. Much of the evidence was gathered from electronic sources and records including the cell phones of Mr. Polchies and Mr. O’Hara, phones that were seized from them at the time of their arrest. The electronic evidence also included information gathered from social media messaging sources, primarily, Facebook.

It was evidence identical in nature and substance, and gathered through the same processes, as was used in the trial of Mr. Polchies who, as noted, has been previously convicted of Mr. Sisson’s murder. The Crown sought permission of the court to introduce such evidence and, in doing so, relied on the provisions of the Canada Evidence Act and on the previous rulings of Justice Morrison who oversaw the trial of Mr. Polchies. III. EVIDENCE AT TRIAL (

A) APPLICATION TO ADMIT ELECTRONIC EVIDENCE [ 9 ] By two Notices of Application, the Crown sought to introduce certain electronic evidence to prove its case. As noted, the admissibility of the evidence gathered under the same processes and, essentially, from the same sources as previously used in the trial of Mr. Polchies, has already been considered and accepted by my colleague, Justice Morrison, who presided over that trial.

He has released two decisions on the admissibility of such evidence and, while not strictly speaking binding on me in the context of this trial, are of great use in my role as gatekeeper of the evidence before me in this case (see. R. v. Polchies , FCR-9-2020, July 20, 2021, and R. v.

Polchies , FCR-9-2020, October 4, 2021). [ 10 ] In the first Application before me, the Crown sought direction on the admissibility of data and the analysis of that data resulting from a request under the authority of the Mutual Legal Assistance Treaty relating to Facebook users Robby Polchies, Corey Sisson, Josh O’Hara and Darrell Green, for the period of time from June 29, 2019 to August 13, 2019.

Also, the same Application seeks a ruling on admissibility of data and analysis in respect of a production order to Bell Corporate Security dated August 14, 2019 for transmission data, tracking data, GPS locations and subscriber information for a phone number believed to belong to Corey Sisson.

[ 11 ] The second Application filed relates to the data and forensic analysis of that data seized from the cellular phones attributed to Robby Polchies, Josh O’Hara and the data logs contained within the Bluetooth infotainment system of the stolen Dodge Ram 1500 belonging to Corey Sisson’s mother, Hannah London. [ 12 ] Mr. O’Hara consented to the requested use of the evidence identified in the two Applications.

I also had the benefit of the Crown’s brief on the issues and the aforementioned rulings of Justice Morrison on the same questions. [ 13 ] As I understand the law as presented to me, s. 31 of the Canada Evidence Act ( CEA ) requires that I must be satisfied, on a low threshold, that the evidence to be presented is authentic, reliable and represents the best evidence on the point. I turn to Justice Morrison’s ruling of July 20, 2021 at para. 11: The framework set out in the CEA provides for a two-stage process for determining threshold admissibility.

At the first stage the applicant must establish the authenticity of the electronic document. Once the document is authenticated the court must consider the integrity of the evidence and the best evidence rule. [ 14 ] To assist the court in making these determinations, the Crown provided as a witness, Mr. Payman Hakimian, an RCMP Forensic Evidence Expert. Mr. Hakimian explained in detail the process used to gather the information sought in the Applications. He described the methods used to test its authenticity.

He described the process of confirming that the data or information could be reliably assigned to the person the Crown says created, sent or received the data (in its various forms). In other words, and for example, if Mr. Hakimian testified that a message was sent from the phone of person A, and was received on the phone of person B, his department is able to determine that the message really was sent from A to B and, that A and B are the persons who controlled the devices at issue. In coming to such conclusions, a variety of software programs were used to mine the data.

It is then cross-checked against data available from other sources thus giving Mr. Hakimian a high level of confidence in the reliability of the records produced in this trial. [ 15 ] In the rulings of Justice Morrison, this process used by Mr. Hakimian and his staff of extracting and analyzing the electronic data available, is set out in detail.

Suffice it to say that the process is identical, and I will not repeat it here given that I am issuing these reasons orally. [ 16 ] I am satisfied that the electronic information, data and records the Crown has identified in its two Applications are authentic and reliable and represent the best evidence of the facts put to the court. The records have probative value. Therefore, the records identified in the Applications are admissible for use in this case. Payman Hakimian [ 17 ] Mr. Hakimian was declared an expert in digital forensic analysis.

He is in charge of the Digital Forensic Services unit at ‘J’ Division of the RCMP. Mr. Hakimian described at length the method of collecting and preserving the various forms of digital evidence. The focus of his work is to produce evidence that is accurate and reliable in relation to an investigation. In this case, he was involved with evidence gathered from or relating to the Dodge Ram truck and the cellphones of Mr. O’Hara and Mr. Polchies. Mr. Hakimian described the various methods that can be used to communicate through messaging services, whether connected to a cellular service or over wi-fi.

In this case, both cell and wi-fi services were used. As noted above, I was satisfied that the evidence offered to the court arising from the two Crown Applications and provided by Mr. Hakimian was admissible. Again, the admittance was also supported by Mr. O’Hara’s consent. [ 18 ] As I will do with the evidence offered from Ms. Sobey to follow, my brief review of Mr. Hakimian’s evidence, as found primarily in exhibit C1, will focus on the events after the murder of Mr. Sisson. Exhibit C1, contains reports related to the information gathered from Mr. Polchies cell phone, Mr.

O’Hara’s cell phone and the infotainment system of the Dodge truck. The material contained in the reports of C1 were addressed by certain witnesses or referred to in argument. The evidence entered through Mr. Hakimian is important in setting the overall narrative and underpins much in the Agreed Statement of Facts. [ 19 ] The electronic messages included in Mr. Hakimian’s report, exhibit C1, note that on the morning of July 29 th , 2019, Mr. Polchies is being advised that Mr. Sisson is, in various communications with others, making reference to a truck being stolen and that the theft may involve Mr. Polchies.

This does not sit well with Mr. Polchies (C1, Tab B, p. 10 ff ). Mr. Polchies references that if his name was mentioned, then the outcome for Mr. Sisson might be different than if his name was not used. By mid morning, the ‘plan’ seems to have been settled and Mr. Polchies is messaging Mr. O’Hara to ‘leave the banger’ (C1, Tab B, p. 40) in Mr. O’Hara’s GMC truck and

that Mr. Polchies is going to use the GMC truck. [ 20 ] In the immediate aftermath of the murder of Mr. Sisson by Mr. Polchies comes the intent of Mr. O’Hara to paint his GMC truck. He wants to do it in a secluded area (C1, Tab B, p. 45). Mr. Polchies offers to help. The plan to sell the Dodge Ram truck and split the proceeds fell through when, as we would later find out, it had been located by the police. Mr. Polchies was not happy. Especially with the realization that the inside had not been thoroughly wiped of possible prints (C1, Tab B, p. 47). Exhibit C1 includes references to Mr.

O’Hara’s plan to sell his GMC truck and to get back the shotgun he had left for Mr. Polchies (and used to kill Mr. Sisson) and send it to Ontario. There are also messages wherein, after the murder and Mr. Polchies believed he was being sought by police, Mr. O’Hara offers to keep watch for Mr. Polchies while the latter has a clandestine visit with his mother. Brent Dunphy [ 21 ] Mr. Brent Dunphy testified that on August 5, 2019, he was contacted to tow a 2002 blue GMC truck that had been stopped by police on the Westmorland Street Bridge. As directed, he towed the truck to his compound for storage.

A few days later, a female called Mr. Dunphy (on behalf of the owner) seeking to retrieve items from the truck. On August 7 th , a man and a woman came to the compound and took what they wanted from the truck which, Mr. Dunphy recalled, amounted to six garbage bags of material. A back rack was also removed from the truck but left in the yard. The man then signed over the vehicle registration to Mr. Dunphy as payment for the towing and associated fees he was not going to pay. The registration was in Mr. O’Hara’s name and had an issue date of August 7 th . The man producing the registration provided Mr.

Dunphy with proof of identification establishing that it was Mr. O’Hara. Sometime later, a colleague in the towing business called Mr. Dunphy and told him that the GMC truck was wanted by the RCMP. Mr. Dunphy called the RCMP to report that he had the truck and he was directed to transport it to the Oromocto RCMP detachment for analysis. Cpl. Francis Coutu [ 22 ] Cst. Coutu testified as to his involvement in forensically processing Mr. O’Hara’s 2002 GMC truck once it had been transported to the Oromocto RCMP detachment by Mr. Dunphy on August 23 rd .

A warrant to fully search the vehicle had been issued and, thus began his forensic search for any relevant evidence. Cst. Coutu described the disheveled state the interior of the truck was in. The truck was in a general state of disrepair. He was looking for documentary evidence of ownership (which he found), trace biological evidence, cell phones, fingerprints, footprints. He also examined the interior and exterior and collected swabs from stains. Multiple items were seized. Only one fingerprint was obtained, and it was not, to his recollection, a viable print. Cst. Dillon Howell [ 23 ] Cst.

Dillon Howell of the Fredericton Police Force testified to his involvement in locating the Dodge Ram 1500 stolen from Ms. London. Ms. London had been very active on social media advising the public that her truck had been stolen. On July 30, 2019, a tip came in that Ms. London’s stolen truck was parked in an area between some construction trailers at the Connaught Street School which was very close to the apartment of Mr. Darrell Green. Cst. Howell arrived on scene and confirmed the truck to be Ms. London’s. At the request of the RCMP, who had carriage of the murder investigation, Cst.

London secured the vehicle and arranged for it to be towed to a facility for storage before ultimate transfer to the RCMP facilities for processing. Hannah London [ 24 ] Ms. London is Mr. Sisson’s mother. She testified to his addiction to drugs and the life that so typically and tragically follows. Mr. Sisson was addicted to a variety of illegal drugs. On the morning of July 29 th , she went to work and texted Mr. Sisson. He did not reply. This was unusual. She was to learn later that day that her home had been broken into.

Her testimony was that whoever broke in was looking for money in specific areas of the house where cash might typically have been kept. This, she believed, was Corey Sisson trying to find money to pay his drug debts. Her Dodge Ram 1500 truck was missing. As the day progressed, she still had not heard any reply from her son. She reached out to his contacts without success. Little did she know, he had been murdered. [ 25 ] Knowing her truck had been stolen she called the police and placed information about her truck on social media.

A tip resulted and the truck was located and ultimately processed as recounted above. Cpl. Eric Dupuis [ 26 ] Cpl. Eric Dupuis is a member of the RCMP Major Crime Unit. On August 10, 2019, he, along with other police officers, went with Ms. Williams (partner of Mr. Polchies) to a location in Noonan where she had stated Mr. Sisson had been shot. Ms. Williams was

with Mr. Polchies and Mr. Sisson when Mr. Polchies murdered Mr. Sisson. The body was found in an advanced state of decomposition. Shot gun casings, of the type that would be used in Mr. O’Hara’s shotgun (of which there were pictures), were found three meters from Mr. Sisson’s body. Ms. Williams had advised the police that, upon returning from the murder, Mr. Polchies stopped at the Pepper Creek Gas Bar and from there, CCTV footage was obtained showing that the GMC blue truck belonging to Mr. O’Hara had stopped. [ 27 ] Cpl. Dupuis noted that a search of Mr. Polchies’ and Ms.

Williams’ residence at 106 Barton Crescent was conducted and shell casings, matching the type found at the murder scene, were located in a bedside table or stand. On August 12, 2019, Mr. Polchies and Mr. O’Hara were arrested having both been found in the back seat of a Mazda 3 that had been, coincidentally, pulled over for a traffic stop. In the car was a Walmart bag containing 12-gauge shotgun shells of the type found at the murder scene and that had been found in Mr. Polchies’ apartment. No shotgun has been found. Also found in Mr. O’Hara’s backpack was a broken key fob for the Dodge Ram 1500 stolen from Ms.

London on July 29 th . The cell phones of Mr. Polchies and Mr. O’Hara were seized at that time. [ 28 ] Cpl. Dupuis recounted how Mr. O’Hara’s GMC truck was retrieved and, during the forensic analysis, one fingerprint was found matching that of Mr. Jeff Killam (alias, Chance Leslie) who, shortly after the murder, had purportedly purchased the truck from Mr. O’Hara. Cpl. Dupuis, who had been present during the trial of Mr. Polchies for the murder of Mr. Sisson, noted that the general thrust of Mr. Polchies’ defence at trial was that it was Mr. Green and/or Mr. O’Hara who had murdered Corey Sisson.

Lianne Sobey [ 29 ] Ms. Sobey is a Criminal Intelligence Analyst with the RCMP. She was involved in the analysis of tens of thousands of Facebook messages that had been obtained as part of the investigation of Mr. Sisson’s murder. Ms. Sobey’s evidence was contained essentially in exhibit C11. It contains electronic data and communications of several players in this saga. While exhibit C11 contains a great deal of communication related to the events that precede the murder of Mr. Sisson, I intend to focus primarily on the messages created in the time after the murder.

But it is worth noting that, at 7:30 a.m. on the morning of the murder, being July 29 th , Mr. Sisson is telling a Kelly Wagnies that he is being detained by dealers to whom he owes money. The last known message sent from Mr. Sisson’s Facebook account was at 11:55 a.m. on July 29 th (C11, p. 11). [ 30 ] At 12:26 p.m. Mr. Polchies is telling Mr. O’Hara to leave ‘the banger’, an accepted reference to Mr. O’Hara’s shotgun (C11, p. 16). Messages between Darrell Green and Mr. O’Hara make reference to what the ‘plan is’ (C11, p. 16). By July 30 th Mr. O’Hara is telling Mr.

Polchies that he needs to get the shotgun back (C11, p. 18). There are several messages relating to Mr. O’Hara’s desire to get it back. Mr. O’Hara is also planning to get his GMC truck to a location where it can be painted (C11, p. 19). By August 2 nd , Mr. O’Hara is confirming that he sold his GMC truck to a person in Moncton. [ 31 ] At p. 35 of C11 is a discussion between Mr. Polchies and Mr. O’Hara about money being lost – in reference to what the Crown asserts to be the proceeds of the intended sale of the stolen Dodge Ram 1500 truck that had been, by then, recovered. The message from Mr.

Polchies indicated that they didn’t even clean the inside of the ‘thing’ to remove ‘everybody’s finger prints’. Mr. O’Hara acknowledges this and, even though he wiped the ‘thing’ after each trip, it was not thorough enough. Cst. David Beck [ 32 ] Cst. David Beck of the Fredericton Police Force testified to his encounter pulling over the Mazda 3 on the evening of August 12 th . He stopped the vehicle for what he believed to be a speeding violation. When he ran the plate, it was noted that this was the third time in the last three hours that a CPIC query had occurred in relation to this vehicle.

Two females were in the front seat and two males in the back. Cst. Beck was familiar with the two females. He also recognized Mr. Polchies and knew there were warrants out for his arrest. Upon returning to his car, Cst. Beck requested backup and support arrived shortly thereafter. Mr. Polchies and Mr. O’Hara were arrested. The Mazda was impounded. Cst. Kevin Bowes produced two reports that were entered as exhibits dealing with the search of the Mazda which I have noted above. IV. ARGUMENT AND ANALYSIS [ 33 ] The Crown alleges that Mr. O’Hara assisted Mr. Polchies as an accessory after the fact.

Section 23(1) of the Criminal Code defines this offence:

23(1) An accessory after the fact to an offence is one who, knowing that a person has been a party to an offence, receives, comforts or assists that person for the purpose of enabling that person to escape. [ 34 ]

Section 240 of the Code , being the

section identified in the Indictment, makes specific reference to being an accessory after the fact to the offence of murder leading, upon conviction, to a term of imprisonment of up to life. That Corey Sisson was murdered is beyond debate. Mr. Polchies was convicted of that murder and, it is well established and conceded, that he used Mr. O’Hara’s shot gun and his GMC truck to carry out the murder. That Mr. O’Hara was fully aware of Mr. Polchies’ intent to murder Mr. Sisson, or was willfully blind to that intent, is also beyond debate, the latter having been so conceded by Mr. O’Hara.

The court is then left to examine Mr. O’Hara’s actions, post the murder of Mr. Sisson, to determine if those actions meet the threshold of the definition set out above. [ 35 ] The Crown alleges that Mr. O’Hara’s conduct proves beyond a reasonable doubt that he was an accessory after the fact to the murder of Mr. Sisson. The Crown points to the following acts as the prime indicators of Mr. O’Hara’s role as an accessory. Mr. O’Hara, after the murder, was going to take his GMC truck, used by Mr. Polchies to facilitate his murderous plan, into a remote area and paint it black (C1, Tab B, p.45). In fact, Mr.

Polchies offered to help him with that task. But it did not happen. Instead, Mr. O’Hara decided to sell his truck, which he did at some point during the first few days of August 2019 (C11 , p. 24 and C1, Tab D, p. 31). As it turns out, and, after it had been sold by Mr. O’Hara, the truck was stopped by the police during a roadblock on the Westmorland Street Bridge on August 5 th and taken to Dunphy’s Towing. Despite, apparently, having signed over his registration to Mr. Killam (Mr. Leslie) already, Mr. O’Hara goes to SNB and gets a replacement registration in his own name.

He goes to Dunphy’s Towing and takes out of the truck approximately six garbage bags of debris. He also removes the large back rack from the truck – a feature that is distinctive to his truck and can be seen in the video from the Pepper Creek gas bar where Mr. Polchies stopped on his return to the city after he murdered Mr. Sisson (C3, Tab 2). The Crown asks, why is Mr. O’Hara going to such lengths to, essentially, erase any connection to his own truck within days of it being knowingly used in the murder of Corey Sisson? [ 36 ] The Crown also points to evidence related to Mr.

O’Hara’s attempts to get back his shotgun – a shotgun he had been asked by Mr. Polchies to leave in the truck (C1, Tab B, p. 40). In the early hours of July 30 th , Mr. O’Hara is messaging Mr. Polchies that he needs the ‘banger’ back. The term ‘banger’ is accepted as referring to the murder weapon (Agreed Statement of Facts, para. 4). His attempts to get the shotgun back continue even during a period of time in early August when Mr. O’Hara was apparently in a detox facility. Someone identifying herself as ‘Jasmine’ is messaging Mr. Polchies to get, “that thing back” (C1, Tab B, pp. 49-50). Mr.

Polchies is being told that the gun was a gift to Mr. O’Hara. The gun has never been found. [ 37 ] The Crown also points to Mr. O’Hara volunteering to keep watch for Mr. Polchies while Mr. Polchies goes to visit his mother – keeping watch for anyone who may want to apprehend Mr. Polchies. This is recorded in messages between Mr. Polchies and Mr. O’Hara on or about August 11-12 th (C1, Tab B, p. 51). Mr. Polchies is arranging this meeting with his mother on what appears to be the late evening of August 11 th (C1, Tab C p. 24 ff ). By this time, the police have indicated that they are looking for Mr. Polchies.

As Mr. O’Hara writes in the message, “ Do you want me to walk up with you, I don’t need to go all the way up there. Just to keep an eye out ”. This message begs the rhetorical question, ‘ keep and eye out for what? ’. But, on this point, there is no evidence that, in fact, Mr. O’Hara did escort Mr. Polchies on a visit to his mother. [ 38 ] The Crown also points to an offer by Mr. O’Hara to pick up some fast food and deliver it to Mr. Polchies. In fact, Mr. Polchies is specific with regard to his requested order (C1, Tab B, pp. 52-53). The Crown considers this to be an attempt to assist in Mr.

Polchies in his escape from murder. However, there is no evidence that this actually occurred. [ 39 ] Mr. O’Hara hangs his defence primarily on the premise that he was the one who would likely be under suspicion by the police for the murder of Mr. Sisson – not Mr. Polchies - and anything Mr. O’Hara did was intended to escape from his own jeopardy. In support of this theory, Mr. O’Hara points to the fact that it was his truck used in carrying out the murderous plan. Furthermore, he was the one asking Mr. Polchies to get his own gun back believing that it had been used by Mr. Polchies in the murder. It was not Mr.

Polchies asking for Mr. O’Hara to take the gun back. In fact, it appears that Mr. Polchies was reluctant to give back the gun as illustrated in messages with ‘Jasmine’ on August 12 th . Mr. Polchies is telling her that he wants to personally give it back to him, “ to make sure nothing goes wrong with it ” (C1, Tab B, p. 50). [ 40 ] Mr. O’Hara was also scared that Mr. Polchies could turn on him and, knowing what Mr. Polchies was like, he was afraid that he might end up being killed by his own gun, which Mr. Polchies would not return. As noted, the evidence shows that Mr.

O’Hara is trying to get his gun back and planning to send it to Ontario – out of the jurisdiction and beyond recovery. Of course, as it turns out, the gun was never found. Mr. O’Hara points to the fact that he was severely beaten by Mr. Polchies and taken to the hospital for treatment on August 2, 2019, although it is not precisely clear when the assault took place. This is consistent with the information found on Mr.

Polchies’ phone when he is messaging Jason Peckford on August 3 rd stating, “ Fuck my buddy didn’t do what I told him to with it and it got picked up ffs I smashed his face in an (sic) told him now he owns (sic) me the 5000 ” (Ex. C12). This is in reference to the anticipated proceeds from the attempted sale of the Dodge Ram 1500 for $5,000.

[41] As for his visit to Dunphy’s Towing and removing from the truck six garbage bags of material and removing the back rack,Mr. O’Hara argues that he did so as a courtesy to Mr. Killam (Mr. Leslie) who had bought his truck some days earlier. Only theregistered owner could get access to the yard at Dunphy’s towing and Mr. Killam had not yet re-registered the truck in his name. Whythat had not happened by then is not known but it may well be that the truck, in the condition it was, could not be registered to a newowner without a new inspection (current one having expired) and it was clear that it would not pass.

As Mr. O’Hara described it in amessage, “Not worth reinspection. Frame is bad. Body is rough. Needs driver door window.” (C1, Tab D, p. 25). [42] In essence, Mr. O’Hara argues that anything he did after the murder of Mr. Sisson was because he believed he would be thetarget of the murder investigation and that he was under threat from Mr. Polchies. Acknowledging that the evidence in this case isprimarily circumstantial, Mr.

O’Hara argues that his theory of defence is consistent with the evidence presented and, given that histheory is consistent with the evidence presented, he is entitled to the benefit of any reasonable doubt that may exist.

As stated in The Lawof Evidence in Canada 3d, (Bryant, Lederman, Fuerst) at p. 72, in discussing the so called ‘Rule in Hodge’s Case’, the authors state thepremise as follows: It was there stated that where the Crown’s case depended exclusively on circumstantial evidence the circumstances must be consistentwith the conclusion that the act was committed by the accused and inconsistent with any other rational conclusion. [43] The Crown brings the Court’s attention to the elements of the offence of an accessory after the fact – elements it must provebeyond a reasonable doubt.

Justice Watt in, Watt’s Manual of Jury Instructions, 2d at pages 473-474, sets out the elements of the offencewhich, in the context of this case, can be framed as follows: i. That Mr. Polchies committed murder; ii. That Mr. O’Hara knew Mr. Polchies committed murder; iii. That Mr. O’Hara provided assistance to Mr. Polchies; iv. That Mr. O’Hara provided the assistance for the purpose of helping Mr. Polchies to escape. [44] Let me address the first two elements. That Mr. Polchies murdered Mr. Sisson is a fact beyond debate. Also, that Mr.

O’Haraknew, or was willfully blind to that fact is also beyond debate (see R. v. Duong, (1998) (ON CA), 124 C.C.C. (3d)392 (Ont.C.

A) that willful blindness equates to actual knowledge in the eyes of the law). Afterall, it was Mr. O’Hara’s truck used totransport Mr. Sisson to the location of his death and the gun used to kill him was Mr. O’Hara’s and left in the truck for the purpose ofkilling Mr. Sisson at the request of Mr. Polchies. We are then left with the consideration of the final two elements of the offence, thatbeing that Mr. O’Hara provided assistance to Mr. Polchies and, did so for the purpose of helping Mr. Polchies escape. [45] Before going further, I want to remove from the equation certain acts of Mr.

O’Hara that the Crown allege represent,essentially, steps on a path of Mr. O’Hara’s desire to assist Mr. Polchies for the purposes of escape. First is the plan by Mr. O’Hara,shortly after the murder, to take his blue GMC truck out ‘into the middle of nowhere’ and paint it black. There is no other reasonedpurpose for doing so other than to be certain it was disguised from detection in the event it could be otherwise identified (as seen in theCCTV at the Pepper Creek gas station). What other purpose could there be to paint it in a secluded, remote area? Of course, by this time,even though Mr.

O’Hara may have thought he might be the initial target of the police, he knew it was Mr. O’Hara who had killed Mr.Sisson. While this is important evidence in the narrative of the case, there is no evidence that the truck was painted as it had been sodiscussed between Mr. O’Hara and Mr. Polchies. Without such evidence, the plan to paint the truck is of little use to the Crown. In fact,the truck was blue when it was seized by police. [46] The same can be said of the Crown’s argument that the provision of a Dairy Queen meal meets the test of providing assistancein Mr. Polchies’ escape.

There is no evidence that the meal was delivered to Mr. Polchies, let alone ever purchased. Also, there is littledoubt that Mr. Polchies planned to visit his mother at a location on Canterbury Street and that Mr. O’Hara offered to keep a look out forhim. But there is no evidence to confirm that he did so. [47] Mr. O’Hara wanted his shotgun back. He apparently wanted to send it to Ontario. Apparently, it was a gift of some sort – apremise I find unconvincing. However, it is clear that Mr. O’Hara wanted the shotgun out of the province.

Again, the premise is that Mr.O’Hara is attempting to hide evidence from possible detection. But we do not know what happened to the shotgun. The shotgun is apiece of important evidence in the murder of Mr. Sisson. The desire to remove it from the province is certainly consistent with an intentto hide evidence for the purpose of escaping liability for murder. However, in the absence of any confirmation that it happened, the

scenario is of little use to the Crown. We do know that Mr. Polchies was in no rush to return it as requested. [ 48 ] The other evidence related to Mr. O’Hara’s actions in getting rid of his GMC truck presents a different scenario. As noted, Mr. O’Hara did not paint the truck. It was still blue when it was found by police. The truck is, like the shotgun, important evidence in the murder of Mr. Sisson. Mr. O’Hara, at some point shortly after the murder, decided the best thing to happen for the truck was to sell it and get it out of the Fredericton area.

It was apparently sold to someone in Moncton and the title was signed over to Mr. Killam (Mr. Leslie). It was, I find, unquestionably an attempt by Mr. O’Hara to limit the chance of the police finding it. While that would certainly assist Mr. O’Hara in his theory that he was only trying to avoid the murder being pinned on him (escaping his own jeopardy), he knew that it was Mr. Polchies who murdered Mr. Sisson and selling the truck would assist in the escape of whoever had committed the murder. [ 49 ] But Mr. O’Hara did not stop at the mere sale of the truck.

Several days later, by happenstance, the truck was stopped as part of a police operation and impounded at Dunphy’s Towing. For some reason, Mr. O’Hara decided that he needed to get things out of the truck even after he sold it to Mr. Killam. Mr. O’Hara goes to Service New Brunswick and has them produce for him another proof of registration in his name. With that in hand, he goes to Dunphy’s and fills six bags of items from the truck and, most significantly, removes the back rack from the bed of the truck.

The back rack is a clear distinguishing feature as seen in the CCTV photos of the truck when it stopped in Pepper Creek after Mr. Sisson had been left dead in the middle of nowhere. Apparently, the back rack would not fit in the car Mr. O’Hara had come into the yard with, so it was left at Dunphy’s. [ 50 ] Mr. O’Hara argues that the return to Dunphy’s compound yard was nothing more than an attempt to help Mr. Killam retrieve things he wanted from the truck. I cannot accept that explanation. In my view, Mr.

O’Hara’s plan to sell the truck and then to return to the truck after it had been impounded to remove items from it, including detaching the back rack, were intended to hide or conceal critical evidence in the death of Mr. Sisson. Even if I did concede that Mr. O’Hara’s visit to Dunphy’s was

an act of benevolence for Mr. Killam, could Mr. O’Hara’s visit to Dunphy’s also have a dual purpose of assisting Mr. Polchies? [ 51 ] The Crown provided to me the case of R. v. Knott , 2006 CarswellOnt. 1313 . In that case, the court dealt with a motion for a directed verdict. Mr. Knott, and others, were involved in a stabbing that resulted in the death of the victim. Mr. Knott hid drugs and a gun that had been used in a drug deal gone bad. During the encounter, one of Mr. Knott’s colleagues stabbed the deceased. At trial, Mr.

Knott’s counsel argued the following – an argument similar in substance as was argued before me – that the accused was acting for his sole benefit. At para. 18 is found the following: Counsel for Mr. Knott says that these other possible scenarios, even if they could be accepted as arising on the evidence, would suggest that Michael Knott hid the drugs and the gun to protect himself and not Tyrone Knott or Kalito Smith. However, whether Michael Knott did so to protect himself, or to protect Tyrone Knott or Kalito Smith, are not mutually exclusive results. [emphasis added] [ 52 ] In my view, and I so find, Mr.

O’Hara did what he did (relative to the GMC truck) with a purpose that he knew would not only assist himself, but that it would also help Mr. Polchies. It is worth noting that while Mr. O’Hara’s offer to keep watch during a visit between Mr. Polchies and his mother, was insufficient on its own to amount to being an accessory, it does illustrate that Mr. O’Hara was willing to assist Mr. Polchies escape the legal consequences of what he had done. Acts done by a person with the intent of hiding, destroying or masking evidence of a known crime (the murder of Mr. Sisson), and committed by a known person (Mr.

O’Hara knew Mr. Polchies committed the murder), do provide assistance to that known person (Mr. Polchies) in the escape of the legal consequences of what they had done. [ 53 ] In my view, and I so find, the Crown has met the burden it carries on each of the elements of the offence of Mr. O’Hara being an accessory after the fact to Mr. Sisson’s murder. While Mr. O’Hara asserts that he was motivated by self-preservation, either from his own arrest or at the hands of Mr.

Polchies, there is no other conclusion I can come to than that he also knew that what he did, specifically as it relates to the GMC truck, would assist the murderer, in this case Mr. Polchies, in evading the legal consequences of the murder he committed. [ 54 ] Mr. O’Hara, please stand: [ 55 ] With regard to Count 1 on the indictment, I find you guilty. [ 56 ] With respect to Count 2 on the indictment, having previously pled guilty and had that plea accepted, I confirm your conviction

on Count 2. ________________________ Justice E. Thomas Christie Court of Queen’s Bench of New Brunswick, Trial Division Court File No. FCR-9-21 CANADA PROVINCE OF NEW BRUNSWICK COURT OF QUEEN’S BENCH OF NEW BRUNSWICK JUDICIAL DISTRICT OF FREDERICTON BETWEEN: HER MAJESTY THE QUEEN AND JOSHUA O’HARA AGREED STATEMENT OF FACTS/ADMISSIONS (Pursuant to ss. 655 and 657.2(2) of the Criminal Code of Canada) The Crown and the defence agree to the following statement of facts. The defence acknowledges that this agreement dispenses with the requirement of the Crown to prove these facts: 1.

On the morning of Monday July 29, 2019, Hannah London's 2015 Dodge Ram truck was stolen from her home on Larlee Road in Estey’s Bridge, New Brunswick, by her 19 year old son, Corey Sisson. Corey Sisson’s electronic messages indicate that he was in debt and actively trying to collect money. Corey Sisson was with Joshua O’Hara at the Tim Horton’s located on the corner of Brookside Drive and Douglas Avenue at 8:24 a.m. that morning. After, the two were then seen by Richard Parks on Hanna London’s street in Joshua O’Hara’s old blue GMC Sierra. 2.

Later that morning, Robby Polchies, Corey Sisson and Joshua O'Hara arrived at Darrell Green's apartment at 580 Smythe Street, Fredericton, NB, driving Joshua O'Hara's old blue GMC truck and Hannah London's Dodge Ram truck. They stated that they wanted to sell the stolen Dodge Ram truck. Corey Sisson had his bookbag with him that contained various drugs. Meanwhile, Robby Polchies was researching Kelly Blue Book for sale prices for a 2015 Dodge Ram. 3. Robby Polchies and Joshua O'Hara began receiving messages that Corey Sisson was telling people that he stole a truck and

mentioned something about Robby and Josh. Robby Polchies sent messages replying “I don’t have a truck lol and sure as fuck wouldn’t let someone like Corey Sisson steal it from me”, “Did he say my name or just the tall guy…?”, “Cause that’s 2 totally different outcomes for someone LOL” 4. Robby Polchies became angry when he found out what Corey Sisson had done. Darrell Green messaged Robby Polchies and asked what the plan was.

Robby Polchies responded “gonna bring him for a drive to get rid of that and that's probably the end of that fairytale... then he also messaged "Goin heavy and coming back light …lol …fuck that ! Can't let him walk away after its gone obviously cause he ain't getting a penny from it and he loves to talk so he kinda made his own bed on this one." Darrell Green and Joshua O’Hara exchanged messages with Robby Polchies discussing the drugs that Corey Sisson had in his bookbag.

Robby Polchies instructed Joshua O'Hara to "Leave the banger" which was a reference to the 12 gauge Mossberg pump action pump action shotgun that Joshua O’Hara had and kept in his GMC truck under the seat. 5. The group split up. Joshua O'Hara and Darrell Green left with Joshua O’Hara driving the stolen Dodge Ram truck and they went to Ringo’s on Smyth Street and also Emily Goodine’s place in Marysville. Emily Goodine went to high school with Josh O’Hara and used to date Darrell Green.

Robby Polchies and Corey Sisson went to pick up Robby’s girlfriend, Jahradd Williams at her mother's home on Carmen Avenue, in Fredericton. 6. Robby Polchies, Corey Sisson and Jahradd Williams were in Joshua O’Hara’s old GMC Sierra. The three then drove out to Noonan, NB, turned off the highway and went out a dirt woods road. There, Robby Polchies got the 12 gauge shotgun that Joshua O’Hara kept under the seat and made Corey Sisson walk down a trail. Robby Polchies shot Corey Sisson twice with the shotgun. The two shotgun blasts caused catastrophic injuries causing Corey Sisson’s death within minutes.

Jahradd Williams was an eye witness to the shooting. 7. After the shooting, Robby Polchies and Jahradd Williams drove back towards Fredericton and stopped at the PepperCreek G-Mart gas station/convenience store. They bought gas and talked with the cashier. They then drove back to Darrell Green's apartment on Smythe Street where they reunited with Darrell Green and Joshua O'Hara. 8. Later, Robby Polchies messaged several people trying to sell Hannah London’s Dodge Ram. He wanted at least $5,000 for it and made it clear that the proceeds from the stolen truck were only going to be split two ways. 9.

The murder of Corey Sisson constituted first degree murder. It was planned. Robby Polchies messaged Darrell Green that he was “gonna bring him [Corey Sisson] for a drive to get rid of that and that’s probably the end of that fairytale”. Robby Polchies then obtained a shotgun from Joshua O’Hara’s truck, drove to a secluded area in the woods and shot Corey Sisson twice. Based on the steps required to load and fire the 12 gauge pump action shotgun twice, it is clear that when Robby Polchies shot Corey Sisson, it was deliberate.

The pump action 12 gauge shotgun needed to be loaded, fired, and then reloaded and fired again in order to shoot Corey Sisson twice. Corey Sisson died from two shotgun wounds inflicted by Robby Polchies.