Arish Khoorshed

The appellant, Sean McGovern, appealed his conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg.

The central issue was whether the arresting officer had reasonable grounds to arrest the appellant and demand breath samples.

The appellant argued the trial judge erred in factual findings and credibility assessment, specifically by relying on a single stumble and slightly slurred speech to establish reasonable grounds, and by giving undue weight to the police officer's testimony.

The appeal court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual determinations or credibility assessment.

The court affirmed that the cumulative observations made by the officer, including traffic offences, odour of alcohol, watery eyes, slow document production, and a slight stumble, constituted objectively reasonable grounds for the arrest and breath demand.

The court also clarified that the trial judge's preference for the officer's evidence was based on factual considerations of reliability, not a per se elevation of police testimony.

The Crown appealed the accused's acquittal on a charge of failing to comply with a roadside breath demand.

The trial judge had acquitted the accused on the basis that the police officer failed to make the demand 'forthwith' after forming reasonable suspicion, due to an eight-minute delay.

The Superior Court of Justice allowed the appeal, finding that the trial judge erred in law by conflating the requirement for a prompt demand with the requirement for an immediate response, and by invalidating the demand despite finding that the accused's own belligerent behavior caused the delay.

A conviction was entered and the matter was remitted to the trial judge for sentencing.

The appellant appealed convictions for impaired driving and two counts of failing to remain.

The appeal raised two issues: whether the trial judge erred in finding reasonable grounds for arrest by misapprehending the evidence regarding the odour of alcohol, and whether the trial judge erred in articulating the test for identification based on circumstantial evidence.

The court dismissed the appeal, finding that the misapprehension of evidence regarding the "strong odour" of alcohol did not undermine the overall analysis for reasonable grounds, given other strong indicia of impairment and connection to the vehicle.

On the identification issue, the court affirmed that no specific incantation is required for circumstantial evidence, and the trial judge's finding of "the logical inference" was sufficient to demonstrate proof beyond a reasonable doubt.

The appellant appealed convictions for "over 80" and impaired driving.

The trial judge had found the breathalyzer certificate admissible despite the absence of direct evidence of a breathalyzer demand, ruling that the defence objection was untimely.

The Superior Court of Justice held that the trial judge erred in law by misconstruing the nature of the statutory presumptions under sections 258(1)(c) and (g) of the Criminal Code.

The court clarified that the absence of evidence of a proper breath demand meant the preconditions for these presumptions were not met, rendering the certificate's contents unusable for their truth, irrespective of a timely objection.

Consequently, the "over 80" conviction was quashed and an acquittal entered.

For the impaired driving count, while the evidence of impairment was not weak, the trial judge's reliance on the erroneously admitted breath readings constituted an error of law, necessitating a new trial.

The Crown appealed the acquittal of the respondent, Joseph Irving, on charges of impaired operation of a motor vehicle and drive over 80.

The trial judge had excluded evidence (police observations and breath samples) under s. 24(2) of the Charter, finding breaches of the respondent's s. 8 (unreasonable search) and s. 10(b) (right to counsel) rights.

The s. 8 breach arose from police coercing the respondent to the door of his home by placing a foot on the threshold and demanding his presence, thereby revoking the implied invitation to knock.

The s. 10(b) breach was a brief delay in providing rights during investigative detention.

The appeal court upheld the trial judge's findings on both Charter breaches and the s. 24(2) analysis, affirming that the police conduct was serious and had a significant impact on the respondent's privacy interests, thus dismissing the Crown's appeal.

The appellant, Grant Zilney, appealed convictions for an indecent act (December 19, 2016) and for an indecent act and criminal harassment (May 1, 2017), as well as the sentence for the latter and the finding that his right to a trial without delay was not breached.

The court dismissed the appeal regarding the December 19, 2016 conviction, finding no error in the trial judge's assessment of defence evidence or corroboration.

However, the court found a reasonable apprehension of bias in the trial judge's comments during sentencing that "guilt was obvious" regarding the May 1, 2017 convictions.

Consequently, a new trial was ordered for the indecent act and criminal harassment charges related to Mary Smith.

The appeal on the s. 11(b) Charter right to a trial without delay was dismissed, with the court affirming that judicial reserve time does not count towards the Jordan ceiling for unreasonable delay, as it constitutes an exceptional circumstance.

The appellant, Althea Reyes, appealed her conviction for failing to appear before court.

At trial, she conceded the actus reus of the charge and argued an honest but mistaken belief regarding her attendance.

On appeal, she sought to raise a new argument that she was not required to attend court, which was contrary to her trial position.

The court dismissed the appeal, finding that the appellant failed to meet the preconditions for raising a new issue on appeal, including the sufficiency of the evidentiary record and the absence of tactical reasons for not raising it at trial.

The court also declined to admit fresh evidence (transcripts from prior proceedings) as the Palmer test for admissibility was not satisfied.

The Crown appealed an acquittal for driving "over 80", where the trial judge excluded breath samples under s. 24(2) of the Charter due to ss. 8 and 9 breaches, finding the officer lacked reasonable and probable grounds for arrest.

The appeal court found no error in the trial judge's conclusion of Charter breaches but determined that the trial judge erred in the s. 24(2) analysis regarding the impact of the breaches, particularly in light of the subsequent Court of Appeal decision in R. v. Jennings.

The appeal court concluded that the liberty deprivation experienced by the respondent was minimal and consistent with routine drinking and driving investigations, thus the breath samples should not have been excluded.

The appeal was allowed, the acquittal set aside, and a conviction entered.

The appellant, Paul Redmond, appealed his conviction for assault causing bodily harm.

The Superior Court of Justice found that the trial judge erred by incorrectly placing the onus on the appellant to prove his alibi on a balance of probabilities, thereby skewing the credibility assessment.

Additionally, the trial judge misapprehended and misused medical records, which documented symptoms but did not confirm an injury, and improperly treated the complainant's prior consistent statements in the records as proof of truth.

The appeal was allowed, the finding of guilt quashed, and a new trial ordered.

The appellant, M.V., appealed convictions for sexual assault and sexual interference.

The appeal raised four grounds: unreasonable verdict, error in dealing with demeanour, misapprehension of evidence regarding the complainant's diary, and error in dismissing a recusal application.

The court found no unreasonable verdict and accepted the trial judge's assessment of demeanour.

However, the court found that the trial judge misapprehended critical evidence concerning the child's diary and erred in dismissing the recusal application, which was based on a reasonable apprehension of bias due to the complainant's mother being a court reporter who had worked with the trial judge.

The appeal was allowed, convictions quashed, sentences vacated, and a new trial ordered.

The accused, Austen Garrido, was charged with aggravated assault and assault with a weapon following an incident at a birthday party where a knife caused severe injury to Devan Dhindsa.

Garrido claimed self-defense and accident.

The court found Garrido's testimony largely incredible but also identified weaknesses in the Crown's case, particularly regarding the intent behind the knife injury and the alleged threatening actions.

Ultimately, the court found reasonable doubt on the essential elements of both charges and the accident theory, leading to acquittals.

The court declined to convict on the lesser charge of possession of a weapon for a dangerous purpose due to insufficient evidence of criminal intent or recklessness.

The Crown appealed the acquittal of the respondent for operating a motor vehicle with an alcohol level exceeding 80 mg.

The trial judge had excluded breath test results under s.24(2) of the Charter, finding a s.8 violation due to the police officer's unawareness of mouth alcohol issues affecting Approved Screening Device (ASD) accuracy.

The Superior Court found that the trial judge erred in concluding a s.8 Charter violation, as sufficient time had elapsed between the last drink and the ASD test.

Furthermore, even if a s.8 breach occurred, the trial judge erred in the s.24(2) analysis by mischaracterizing the impact of the breach as significant, contrary to recent Court of Appeal jurisprudence.

The appeal was allowed, the acquittal set aside, a conviction substituted, and the matter remitted for sentencing.

The accused was charged with operating a motor vehicle while impaired by alcohol and with having a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood.

The trial judge found that while the police officer breached the accused's section 10(a) Charter rights by failing to promptly inform him that the nature of his detention had changed from a speeding investigation to an impaired driving investigation, the officer had reasonable and probable grounds for the breath demand and did not breach section 8 rights.

The trial judge excluded statements made by the accused at the roadside but admitted the breath test results under section 24(2) analysis.

The accused was convicted on both counts.

The Crown appealed the acquittal of the respondent on a charge of dangerous operation of a motor vehicle.

The trial judge had found that the Crown failed to prove the actus reus beyond a reasonable doubt, despite the respondent driving at excessive speeds, because the surrounding circumstances (light traffic, dry road, no interference with other vehicles) did not establish a marked departure from the standard of care.

The Crown argued that the trial judge erred in law by stating that speed alone cannot found a conviction for dangerous driving.

The appellate court reviewed relevant case law, confirming that while excessive speed can constitute dangerous driving, a contextual analysis of all surrounding circumstances is required.

The court found no reviewable error in the trial judge's conclusion that the Crown had not proven dangerous driving beyond a reasonable doubt given the totality of the evidence.

The appeal was dismissed.

The appellant appealed his convictions for sexual assault, invitation to sexual touching, and sexual interference.

He argued the trial judge erred in finding the complainant's mother did not adopt portions of her police statement regarding the complainant's sexual knowledge, in using an absence of evidence to corroborate the complainant, and in failing to analyze inconsistencies cumulatively.

The Summary Conviction Appeal Court dismissed the appeal, finding no error in the trial judge's evidentiary rulings or credibility assessment.

A young adult offender pled guilty to dangerous driving arising from a prearranged street racing incident that resulted in the deaths of two of his friends.

The Crown sought a conditional sentence of four months, while defence counsel sought a conditional discharge.

The court imposed a conditional discharge with a two-year probation order, finding that specific deterrence and rehabilitation were the paramount sentencing objectives for a first-time young offender.

The court considered the offender's youth, lack of prior record, genuine remorse, and strong family support, balanced against the serious and planned nature of the dangerous driving conduct.

The defendant was charged with theft over $5,000, fraud over $5,000, and criminal breach of trust arising from her misappropriation of $4,000 belonging to her elderly father, for whom she held a Power of Attorney.

She was found guilty of theft under $5,000, fraud under $5,000, and criminal breach of trust.

The Crown sought a conditional sentence of six months, while defence counsel sought a conditional discharge.

The court imposed a suspended sentence with 18 months probation, finding that neither a conditional discharge nor a conditional sentence was appropriate given the aggravating factor of breach of fiduciary duty, the defendant's lack of remorse, and the principles of sentencing under the Criminal Code.

The accused was charged with theft over $5,000, fraud over $5,000, and criminal breach of trust arising from her use of her father's funds while holding a power of attorney.

The accused used $4,000 of her father's money to pay personal bills while he was in long-term care, causing him to default on facility payments.

The accused claimed colour of right based on a clause in the power of attorney authorizing loans to relatives and her father's prior loans to her.

The court found that the circumstances were materially different from prior loans, as the father was now in care, the funds were insufficient to cover his care costs, and his default on obligations created risk.

The court rejected the colour of right defence and found the accused guilty of theft under $5,000, fraud under $5,000, and criminal breach of trust.

The defendant pleaded guilty to assault causing bodily harm against Raymond King, his step-father.

The Crown sought six months imprisonment while defence counsel sought a suspended sentence or conditional sentence.

The court imposed a conditional sentence of nine months in the community followed by two years probation, with strict conditions including home confinement, no contact with the victim, and mandatory counselling for anger management and substance abuse.

The court applied Gladue principles recognizing the defendant's Aboriginal heritage and difficult background while balancing the serious nature of the assault and the need for denunciation and deterrence.

The offender pleaded guilty to sexually assaulting a former intimate partner on July 3, 2014, in Burlington.

The assault involved non-consensual oral sex after the complainant explicitly said no and the relationship was over.

The offender and complainant were both cognitively impaired individuals who had been in a three-year intimate relationship and were discussing reconciliation.

The Crown sought 9-12 months custody, while the defence sought a six-month conditional sentence.

The court imposed a suspended sentence with two years probation, finding that separation from society was not necessary given the unique circumstances, including the prior intimate relationship, the complainant's pre-offence sexting, the offender's significant disabilities and exemplary character, and the isolated nature of the offence.