Arish Khoorshed

Daniel Miller appealed convictions for simple assault and breach of undertaking, following a trial where a mischief to property charge was stayed.

The appeal was based on three grounds: the trial judge's alleged failure to adequately assist the self-represented accused, insufficiency of the reasons for judgment, and misapprehension of evidence.

The Superior Court of Justice dismissed the appeal, finding no miscarriage of justice, that the trial judge's reasons were sufficient for appellate review, and no misapprehension of evidence that affected the result.

Cameron Walker was acquitted of impaired driving after the trial judge excluded breath samples due to a Charter s. 8 violation concerning video recording of his toilet use in a police cell without proper notice.

The Crown appealed, arguing errors in finding a s. 8 violation and in excluding evidence under s. 24(2).

The appeal court upheld the trial judge's finding of a serious s. 8 breach due to inadequate notice and the humiliating nature of the recording, and affirmed the exclusion of evidence, dismissing the Crown's appeal.

The appellant appealed his conviction for impaired driving, arguing the trial judge erred in finding impairment beyond a reasonable doubt, particularly given observations of non-impairment at the police station.

The appellate court dismissed the appeal, affirming the trial judge's holistic assessment of the arresting officer's observations of erratic driving and physical indicia of impairment at the scene, which were made under different circumstances than the later observations at the station.

The court reiterated that appellate courts do not re-weigh credibility findings or re-try cases.

The appellant appealed his summary conviction for driving over 80mg, arguing that the trial judge erred in finding no breach of section 8 of the Charter and in concluding that the breath samples were taken as soon as practicable.

The summary conviction appeal court found that the trial judge made no error in concluding that the arresting officer had reasonable suspicion for the roadside demand and reasonable grounds for the breath demand.

The court also upheld the trial judge's finding that the breath tests were taken as soon as practicable, despite a delay caused by the police facilitating contact with duty counsel.

The appeal was dismissed.

The applicant sought certiorari to quash his committal to trial on a charge of defamatory libel.

The charge arose from a poster the applicant displayed publicly, which alleged that the managers of a teen band had engaged in 'abuse' and 'inappropriate behaviour' towards his son, and had misappropriated charity funds.

The reviewing judge found that the statements in the poster were expressions of opinion and value judgments based on a private dispute, rather than false statements of fact.

As there was no evidence of a 'calculated falsehood' or knowledge of falsity, the preliminary hearing judge exceeded her jurisdiction.

The application was allowed and the committal was quashed.

The Crown appealed the respondent's acquittal on a charge of driving 'over 80'.

The trial judge had excluded breathalyzer readings under s. 24(2) of the Charter after finding s. 8 and s. 9 breaches because the Approved Screening Device (ASD) used by the police officer was two days past its calibration date.

The Summary Conviction Appeal Court upheld the finding of the Charter breaches but found the trial judge erred in his s. 24(2) analysis, particularly regarding the impact of the breach.

The appeal court admitted the evidence, set aside the acquittal, and entered a conviction.

The appellant, Bilal Moucho, appealed his convictions for dangerous driving, failing to stop for police, and speeding.

The appeal focused on the admissibility of fresh evidence, specifically cell phone records, to challenge the identity of the driver.

The court applied the Palmer criteria for fresh evidence, finding a lack of due diligence by the appellant but concluding that the evidence was relevant, reasonably credible, and could have affected the verdict, particularly given the inherent dangers of eyewitness identification.

The convictions were set aside, and a new trial was ordered.

The accused was charged with break and enter, robbery, uttering threats, and possession of a weapon for a dangerous purpose following a home invasion.

The Crown's case relied on circumstantial evidence, including a cellphone belonging to the accused found at the scene, and eyewitness identification by the complainant.

The court rejected the eyewitness identification as unreliable but found the accused's explanation for his cellphone being at the scene to be implausible.

Applying the W.(D.) framework, the court rejected the accused's testimony and found that the circumstantial evidence established his guilt beyond a reasonable doubt for the break and enter, robbery, and weapons charges.

The accused was acquitted of uttering threats due to insufficient evidence regarding which perpetrator made the threat.

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.