Nicholas A. Xynnis

The accused stood trial on charges of sexual assault and sexual interference arising from allegations that he repeatedly rubbed the child complainant's vagina while babysitting her in her home.

The court admitted the complainant's prior videotaped statement under s. 715.1 of the Criminal Code and also relied on similar fact evidence arising from a prior conviction involving highly similar conduct with another nine-year-old complainant.

Applying the W.(D.) framework, the court found the child complainant credible and reliable, rejected the accused's denial, and held the Crown proved both offences beyond a reasonable doubt.

A publication ban under s. 486.4 was in place.

The Crown applied to admit similar act evidence from a prior conviction against the accused, W.L., in his current trial for sexual assault and sexual interference involving a nine-year-old complainant.

The court analyzed the proximity in time, detailed similarities (age of complainants, nature of sexual acts, circumstances, position of trust), dissimilarities, and the absence of collusion.

Finding the evidence highly probative and its probative value outweighing its prejudicial effect, the court granted the Crown's application, deeming the similar act evidence admissible.

The two offenders were convicted of sexually assaulting a 19-year-old unconscious victim.

The assault involved digital penetration by one offender while the other encouraged and facilitated the act.

The court rejected the argument that the absence of penile penetration lessened the gravity of the offence.

Emphasizing denunciation and deterrence, the court sentenced both first-time offenders to 16 months in custody followed by two years of probation, along with a 20-year SOIRA order and a weapons prohibition.

Sentencing decision following convictions for sexual assault, assault causing bodily harm, and assault arising from a long-term pattern of exploitation and abuse that began when the complainant was a teenage athlete and the offender was her coach.

The court treated denunciation and deterrence as predominant, relying on the modern sentencing approach for sexual offences against children and recognizing the aggravating features of breach of trust, exploitation, domestic violence, humiliation, and lasting psychological harm.

The court also considered mitigating factors including the offender's youth at the time of the sexual assault, lengthy law-abiding period, harsh extrajudicial consequences, and extended bail period.

A global custodial sentence of 45 months was imposed, together with mandatory and ancillary orders.

This is a summary conviction appeal concerning the mens rea for the offence of failing or refusing to provide a breath sample.

The respondent, Roberto DeCaire, was acquitted at trial after the judge found a reasonable doubt as to whether his failure to provide a breath sample was deliberate, citing severe sciatic pain.

The Crown appealed, arguing an error in law regarding the applicable mens rea standard.

The appeal court dismissed the appeal, finding that the trial judge did not err in law by applying a standard that required proof of intentional failure or refusal, consistent with a harmonious reading of conflicting authorities.

The accused was charged on a five-count indictment with three allegations of sexual assault, a charge of assault causing bodily harm, and another charge of simple assault against the complainant, his former track athlete and later wife.

The court applied the W.(D.) test for credibility and reliability, noting the significant time lapse since the incidents.

The court dismissed two sexual assault counts (Counts 1 and 5) due to insufficient detail and conflicting accounts, which raised reasonable doubt.

However, the court found the accused guilty beyond a reasonable doubt on one count of sexual assault (Count 2) related to an incident at a hotel when the complainant was 16, rejecting the accused's evasive testimony.

The court also found the accused guilty on one count of assault causing bodily harm (Count 4) for pushing the complainant down stairs, causing her hand to go through glass, and on one count of assault (Count 3) for twice forcing her naked out of their apartment in winter conditions.

The court emphasized the accused's manipulative and controlling behavior throughout the marriage as corroborative evidence of his animus.

The two accused were jointly charged with sexual assault.

The complainant, who had consumed an unknown substance and alcohol, lost consciousness but later experienced a flashback of being sexually assaulted by one accused while the other accused watched and provided encouragement.

The court found the complainant's flashback memory to be reliable, as it was consistent and corroborated by physical bruising.

The court held that the complainant did not consent to the sexual activity.

Both accused were found guilty, with the observing accused convicted as a party to the offence for aiding and abetting by facilitating the assault and encouraging the principal offender.

The appellant, Eric German Flores, appealed his conviction for sexual assault and the four-year sentence imposed.

The appeal from conviction raised issues regarding the trial judge's instructions to the jury on the use of post-event evidence, specifically the complainant's sexual assault examination and prophylactic treatment, and a text message sent by the appellant.

The appeal from sentence challenged the trial judge's finding that the offence involved a breach of trust.

The Court of Appeal dismissed both appeals, finding no prejudice in the jury instructions and that the sentence was within the appropriate range, emphasizing that the appellant took advantage of a vulnerable person.

The victim surcharge imposed at trial was set aside.

The applicants, jointly charged with historical sexual offences, brought applications for a stay of proceedings alleging unreasonable delay under s. 11(b) of the Charter.

The total delay was approximately 35 months.

The court deducted periods of defence-caused delay, reasonable judicial reserve time, and exceptional circumstances arising from one applicant's Legal Aid application process.

After deductions, the net delay for both applicants fell well below the 30-month Jordan ceiling.

As the applicants failed to demonstrate a sustained effort to expedite the proceedings, the applications were dismissed.

The Crown appealed the respondent's acquittals for impaired driving and operating a motor vehicle with a blood alcohol concentration over 80.

The trial judge had found a section 9 Charter breach due to a lack of reasonable grounds for arrest and excluded the breath samples under section 24(2).

The Superior Court of Justice allowed the appeal on the over 80 charge, finding the trial judge's reasons were insufficient to explain why the officer lacked reasonable grounds or why the evidence was excluded, thereby foreclosing appellate review.

A new trial was ordered for the over 80 charge, while the acquittal for impaired driving was upheld.

The appellant was convicted of invitation to sexual touching, sexual assault, and sexual interference involving his step-son, with allegations occurring when the complainant was between 8 and 13 years old.

He was acquitted of assault.

The appellant appealed on five grounds: inconsistent verdicts, admissibility of his videotaped statement to police, jury instructions on credibility across counts, jury instructions on consent, and jury instructions on prior inconsistent statements.

The Court of Appeal dismissed all grounds of appeal, finding the verdicts reconcilable, the admission of evidence proper under s. 653.1 of the Criminal Code, and the jury instructions adequate and not prejudicial.

The Attorney General of Canada, on behalf of the United States, sought an order for the committal of Tony Dada Akinbobola and Harry Cole for extradition to the USA for prosecution related to a fraudulent lottery scheme targeting elderly victims.

The court dismissed the application against Akinbobola due to insufficient evidence, finding that the allegations were bald assertions lacking sufficient detail or connection to him, and that the evidence did not establish he was the actual user of alleged email accounts or phone numbers.

However, the court granted the application against Cole, finding sufficient evidence to meet the test for committal, despite arguments regarding the reliability of accomplice and confidential witness testimony.

The appellant was convicted of sexually assaulting a nine-year-old complainant.

The appeal raised several grounds, including allegations of unequal assessment of evidence, consideration of un-tendered evidence, failure to assess reliability, impermissible inferences, misapprehension of motive evidence, and incorrect application of the burden of proof.

The court dismissed the appeal, finding that the trial judge's credibility and reliability assessments were entitled to deference and that no errors in law or fact were made that would warrant overturning the conviction.

The appellant appealed his conviction for multiple frauds arising from a credit card scam.

The appellant challenged the trial judge's credibility assessment, arguing she erred in finding his testimony unbelievable and preferring the testimony of witness Miller.

The appellant also argued the verdict was unreasonable.

The Court of Appeal upheld the conviction, finding the trial judge properly assessed credibility with appropriate deference to witness evidence, and that the Crown's case had considerable strength with evidence of the appellant's involvement in key steps of the fraudulent activity.

The appellants appealed their convictions for assault causing bodily harm and, for one appellant, threatening death.

The court upheld the convictions for assault causing bodily harm, finding the trial judge's assessment of credibility and reliability, and rejection of self-defence, to be reasonable and supported by evidence.

However, the conviction for threatening death was set aside as unsupported by evidence.

The appellant appealed his convictions for impaired driving and refusing to provide a breath sample.

He argued the trial judge erred by not staying proceedings due to the police's failure to video record his arrest and transport, and by failing to adequately consider a defence witness's testimony.

The Superior Court of Justice dismissed the appeal, finding that the police had no duty to create video evidence and that the trial judge provided sufficient reasons for rejecting the defence witness's testimony.

Four appellants appealed their convictions for fraud over $5,000 and conspiracy to commit fraud, as well as a count of knowingly contributing to an activity of a criminal organization.

The convictions arose from a large-scale telemarketing advance fee scheme operating from multiple "boiler rooms" in the Toronto area, where telemarketers defrauded American residents by falsely promising loans from fictitious lenders and demanding advance payments.

The Crown's case relied on fingerprint evidence, surveillance evidence, and the appellants' presence at the locations.

The appellants challenged various aspects of the trial, including jury instructions, evidentiary rulings, and the reasonableness of the verdicts.

The Court of Appeal dismissed all conviction appeals, finding no reversible error in the trial judge's conduct or instructions, and concluding that the verdicts were reasonable on the evidence.

The appellant appealed both his conviction for aggravated assault and his sentence of 18 months imprisonment plus two years probation.

The conviction arose from an incident in which the appellant's motor vehicle struck and severely injured a pedestrian in a parking lot outside a pub, following an altercation with another patron.

The appellant argued the collision was inadvertent, while the Crown alleged it was intentional.

The Court of Appeal dismissed both the conviction and sentence appeals, finding the trial judge's factual findings and credibility determinations were reasonable and entitled to deference, and the sentence was fit and within the appropriate range.

The appellant appealed his conviction for failing to provide a breath sample.

At trial, the adult witnesses, including the police officer and the appellant, were asked to promise to tell the truth rather than being sworn or affirmed.

The summary conviction appeal court held that this was not a minor procedural irregularity curable under s. 686(1)(b)(iv) of the Criminal Code.

The failure to have adult witnesses testify under oath or solemn affirmation meant there was no properly sworn evidence before the trial court.

The conviction was quashed.

The appellant appealed summary conviction findings of guilt for two counts of assault and one count of uttering threats.

He argued that the trial judge improperly rejected his evidence, accepted the complainants’ evidence despite inconsistencies, and provided insufficient reasons for the credibility findings.

The court held that while credibility findings normally attract deference, the trial judge’s reasons did not address significant inconsistencies in the evidence and failed to explain the path to conviction.

Applying the functional test for adequacy of reasons from appellate jurisprudence, the court concluded the reasons were insufficient to permit meaningful appellate review.

This constituted an error of law requiring intervention.