Nicholas A. Xynnis

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 conviction for sexual assault, raising three grounds: failure to consider exculpatory portions of out-of-court statements, applying uneven scrutiny to the evidence, and improperly admitting similar fact evidence.

The Court of Appeal found no error in the trial judge's treatment of the statements, noting they were only probative of the appellant lying to police.

The court also found the trial judge properly cautioned himself against uneven scrutiny and reasonably admitted the similar fact evidence.

The appeal was dismissed.

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.

The Crown appealed acquittals on multiple sexual exploitation and sexual assault counts arising from alleged touching of teenage complainants during youth camping trips.

The court held that the trial judge erred in law on one sexual assault count by considering only s. 265(3)(d) and failing to apply s. 273.1(2)(c) concerning inducement by abuse of trust, power or authority.

The court also held that the trial judge erred in law on other sexual assault counts by treating sexual purpose as an essential element, contrary to the objective framework in Chase.

The appeal was allowed in part: convictions were substituted on three sexual assault counts, a new trial was ordered on one sexual assault count, and the sexual exploitation acquittals were upheld.

The appellant appealed his 12-year concurrent sentence for four counts of robbery using a firearm, related to a series of home invasions.

The trial judge had intended the sentence to run concurrently with a 14-year sentence imposed in a separate jurisdiction for related offences.

After the related 14-year sentence was reduced to 10 years on appeal, the Court of Appeal found the 12-year sentence offended the totality principle.

The court reduced the sentence to 8 years and 4 months to align with the time to be served on the related sentence, while rejecting arguments regarding sentence disparity with co-conspirators.

The appellant appealed his conviction, arguing that his trial counsel provided ineffective assistance.

The Court of Appeal dismissed the appeal, finding that the claim failed on the prejudice arm of the ineffective assistance of counsel test.

The court concluded that the proposed fresh evidence and cross-examination on inconsistencies in the complainant's statements could not reasonably have been expected to affect the result at trial.

The appellant appealed his convictions for sexual assault and unlawful confinement, and his designation as a dangerous offender.

The offences involved the severe beating and sexual assault of his former common-law partner.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's assessment of the evidence.

The sentence appeal was also dismissed, as the court upheld the finding that the appellant, a diagnosed psychopath with a history of domestic abuse, posed a substantial risk of reoffending that could not be reasonably controlled in the community.

The appellant appealed his sentence, seeking a reduction to avoid adverse immigration consequences.

The immigration authorities were treating the original sentence as a two-year sentence due to the length of pre-trial custody.

With the consent of the Crown, the Court of Appeal allowed the appeal and reduced the sentence to 53 weeks, resulting in an effective sentence of two years less a week for immigration purposes.

The appellants appealed their convictions, arguing that the verdicts were unreasonable and inconsistent with their acquittals on other counts, that the trial judge erred in assessing credibility and shifted the burden of proof, and that they received ineffective assistance of counsel.

The Court of Appeal dismissed the appeal, finding that the trial judge properly assessed the qualitatively different evidence on each count, correctly applied the W.(D.) principles, and that the ineffective assistance claim fell short of the required threshold.