Nicholas A. Xynnis

The appellant appealed his summary convictions for impaired driving, driving over 80, and driving while prohibited.

The convictions were based on circumstantial evidence that the appellant drove his vehicle to a fast food restaurant and retained care and control of it while inside.

The appellant argued that the trial judge erred in finding care and control was the only reasonable inference.

The Superior Court of Justice dismissed the appeal, finding the trial judge's factual findings were fully supportable and there was no other reasonable inference available on the evidence.

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

At trial, the accused raised a 'bolus drinking' defence, testifying she rapidly consumed a large beer shortly before driving.

The Crown requested an adjournment to call a toxicologist in reply to calculate the impact of this consumption on her blood alcohol concentration.

The trial judge denied the adjournment, treating the request as an attempt to reopen the Crown's case.

The Superior Court of Justice allowed the appeal, finding the trial judge erred in law by confusing reply evidence with reopening a case.

The Crown was entitled to call reply evidence to respond to a new matter put in play by the defence.

A new trial was ordered.

The appellant appealed a conviction for impaired operation following acquittal on a breath-demand refusal charge and conviction on mischief and impaired driving charges at trial.

The sole issue was whether the observational evidence, much of which was said to be equally consistent with non-impairment, was insufficient to prove impairment beyond a reasonable doubt.

The court held the trial judge properly assessed the totality of the evidence, including both signs of impairment and evidence of normal functioning, and reasonably found that impairment was apparent.

The appeal was dismissed.

The appellant appealed a summary conviction for operating a motor vehicle with blood alcohol exceeding the legal limit, arguing that the trial judge unreasonably concluded he was in care or control of the vehicle.

The appellant had been seated in the driver’s seat of a running vehicle with the headlights and heater on while intoxicated, claiming he intended to walk to a friend’s house rather than drive.

Applying the principles from R. v. Boudreault, the court held that the trial judge reasonably found a realistic risk of danger because the appellant’s alleged alternate plan was vague and had been undermined by subsequent events.

The trial judge was entitled to conclude the appellant exercised care or control by unlocking, starting, and occupying the vehicle without a concrete plan.

The verdict was supported by the evidence and not unreasonable.

Two accused were jointly tried for possession of cocaine for the purpose of trafficking and simple possession, with one accused also charged with possession of proceeds of crime.

Crack cocaine was discovered during an inventory search of a vehicle following a traffic stop and planned tow for lack of insurance.

The Crown relied on circumstantial evidence, including proximity to the drugs, possession of cash and cell phones, and suspicious movements in the vehicle.

The court held the Crown failed to prove beyond a reasonable doubt that either accused had knowledge of the drugs in the vehicle.

Given the limited visibility of the bag, lack of direct evidence, and several reasonable alternative inferences, the circumstantial evidence did not establish knowing possession.

The accused was charged with impaired driving and over 80 following a motor vehicle accident at a construction site intersection.

The sole issue at trial was the identity of the driver.

The Crown relied on eyewitness testimony identifying the accused as the driver based on distinctive thick black-framed glasses.

The defence argued the accused's friend was the driver.

The court found conflicting evidence between the eyewitness account and the consistent testimony of both the accused and his friend, resulting in reasonable doubt as to identity.

The accused was acquitted.

The accused was charged with operating a motor vehicle with alcohol in her body contrary to section 253(b) of the Criminal Code.

The Crown proceeded summarily.

The defence brought a Charter application alleging breaches of sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms, specifically challenging the timing of the approved screening device demand and the delay in providing the right to counsel.

The court found no breach of Charter rights, holding that the officer's investigative steps were reasonable and compliant with the immediacy requirements of section 254(2) of the Criminal Code.

The trial proceeded on the merits following dismissal of the Charter application.

The accused was charged with failing or refusing to comply with a demand to provide a breath sample into an approved screening device contrary to s. 254(5) of the Criminal Code.

The Crown proved all elements of the offence beyond a reasonable doubt.

The accused argued that he should be acquitted based on the defence of officially induced error, claiming that a police officer misinformed him about the consequences of refusing the breath demand.

The court rejected this defence, finding that the accused failed to establish the prerequisites for the excuse and that his evidence was unreliable and internally inconsistent.

The court convicted the accused.

The Crown appealed an acquittal on a charge of operating a motor vehicle with a blood alcohol concentration exceeding 80 mg of alcohol in 100 millilitres of blood.

The trial judge had excluded Intoxilyzer breath test results on the basis that the police officer allegedly lacked reasonable and probable grounds to make the breath demand under the Criminal Code.

The Superior Court held that proof of reasonable grounds is not a prerequisite to the admissibility of breath test results at common law or under the Criminal Code evidentiary scheme.

Rather, the absence of reasonable grounds may support a Charter challenge and potential exclusion under s. 24(2), but does not automatically render the results inadmissible.

Because the trial judge treated the issue as an automatic bar and failed to conduct the proper Charter analysis, the acquittal was set aside and a new trial ordered.

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

After the Crown closed its case at trial, defence counsel argued that the accused had not been identified in court as the person arrested.

The trial judge, on his own initiative, reopened the Crown’s case, recalled the officer, elicited identification evidence, and convicted the accused.

On appeal, the court held that the trial judge’s conduct in reopening the case and personally eliciting the missing evidence created a reasonable apprehension of bias, as it appeared the judge had assumed the role of the prosecution.

Although the evidence already led could have established a prima facie case of identity, the appearance of partiality required that the conviction be set aside and a new trial ordered.

The appellant appealed his convictions for break and enter, sexual assault, and criminal harassment.

He argued the trial judge erred in appointing counsel to cross-examine the complainant, alleged unfairness in the appointment process, and claimed the verdicts were unreasonable.

The Court of Appeal dismissed the appeal, noting the procedural objections were raised for the first time on appeal and lacked merit, and finding no error in the trial judge's detailed assessment of credibility and reliability.

The appellant appealed a conviction for having care or control of a motor vehicle while impaired contrary to s. 253(a) of the Criminal Code.

The appellant argued there was insufficient evidence that he was in care or control and that the trial judge misapplied the law after finding the statutory presumption of care or control rebutted.

The appeal court held that the trial judge properly conducted a risk-of-danger analysis considering the totality of the circumstances, including the accused’s position in the driver’s seat of a running vehicle and the potential for him to place the vehicle in motion while impaired.

The court concluded that intent to drive is not required where the circumstances demonstrate a realistic risk that the impaired accused could set the vehicle in motion.

The conviction was upheld.

The appellant appealed his conviction, arguing that the police lacked articulable cause for an investigative detention and that evidence should have been excluded under section 24(2) of the Charter.

The Court of Appeal dismissed the appeal, finding there was a basis for the trial judge's conclusion on articulable cause and deferring to the trial judge's section 24(2) analysis under the Grant framework.

The appellant appealed his convictions for refusal to take a breathalyzer test and impaired driving.

He argued that his section 10(b) Charter rights were breached when he was denied a second phone call to his lawyer, and that the trial judge erred in finding impairment and drawing an inference under section 258(3) of the Criminal Code.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the appellant was not asking to speak to counsel for further advice, and holding there was ample evidence of impairment.

The appellant appealed his conviction, arguing the trial judge misapplied the burden of proof and applied different standards in assessing credibility.

The Court of Appeal dismissed the appeal, finding the trial judge's brief reasons adequately demonstrated the basis for conviction by relying on corroborating evidence, including a 'will' and sibling testimony, to believe the complainant and disbelieve the appellant.

The appellant sought to strike his guilty plea to a charge of refusing to provide a breath sample, arguing he received misleading advice from counsel regarding the consequences of the plea.

The summary conviction appeal judge dismissed the appeal because the appellant failed to demonstrate a viable defence.

The Court of Appeal found the appeal judge applied the wrong legal test, noting the focus should have been on whether the plea was informed, not whether a viable defence existed.

However, the Court denied leave to appeal due to the significant delay and the absence of a miscarriage of justice.

The appellant pleaded guilty to being masked with intent and failing to comply with an undertaking, receiving a 40-month sentence on a joint submission.

He appealed the sentence, seeking a 16-month reduction to avoid deportation consequences.

The Court of Appeal dismissed the appeal, holding that immigration consequences cannot justify what would otherwise be an unfit sentence, and the proposed reduction was well outside the agreed-upon range.

The appellant appealed a three-year equivalent sentence for two serious sexual assaults, seeking a reduction to avoid immigration consequences (deportation to Jamaica).

The appellant introduced fresh evidence of his schizophrenia diagnosis, good behavior, and lack of reoffending over six years.

The Court of Appeal dismissed the appeal, finding the sentence fit and a reduction for immigration purposes unwarranted, noting that immigration officials could consider his medical and rehabilitative circumstances.

The appellant appealed a conviction entered by a Summary Conviction Appeal Judge.

The Court of Appeal dismissed the appeal, agreeing with the summary conviction appeal judge that the breath test evidence should not have been excluded under s. 24(2) of the Charter.

The trial judge had not had the benefit of the Supreme Court's decision in R. v. Grant and failed to consider the officers' good faith and the minimal intrusiveness of the breath test.

The appellant appealed his convictions for two counts of sexual assault against two young cousins, as well as his four-year sentence.

He argued the trial judge erred in admitting similar fact evidence, finding no collusion between the complainants, providing inadequate reasons regarding his limited opportunity to commit the offences, and misapprehending medical evidence.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's assessment of the evidence or adequacy of reasons.

The sentence appeal was also dismissed, as the four-year term was within the appropriate range.