Nicholas A. Xynnis

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 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.

The appellant appealed his convictions for threatening, sexual assault, and assault, arguing the trial judge failed to adequately explain the rejection of his evidence and failed to apply the W.(D.) framework to the threatening charges.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons, read as a whole, demonstrated she evaluated all evidence, properly applied the W.(D.) principles, and made credibility findings open to her on the evidence.

The appellant pleaded guilty to importing cocaine and appealed the sentence, arguing for a conditional sentence.

The Court of Appeal found that the trial judge properly considered relevant factors, including the appellant's health and guilty plea, and reasonably rejected a conditional sentence.

The appeal was dismissed.

The appellant appealed his conviction and three-year sentence for the sexual assault of an 11-year-old child.

He argued the trial judge's findings were unreasonable, misapprehended DNA and medical evidence, and failed to properly apply the W. (D.) framework.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's conclusions were supported by the evidence and free of legal error.

However, the sentence appeal was allowed, and the sentence reduced to two years, because the trial judge had sentenced the appellant based on a more invasive assault than the one for which he was convicted.

The appellant's new counsel requested an adjournment at the opening of the appeal hearing to obtain fresh expert evidence, following the recent death of the appellant's previous counsel.

The Court of Appeal granted the adjournment to a peremptory date without expressing a view on the admissibility of the proposed fresh evidence under the Palmer test.

The appellant appealed convictions and sentences for attempt fraud, assault peace officer, and personation.

On consent, the appeals regarding attempt fraud and assault peace officer were dismissed.

Based on fresh evidence, the conviction and sentence appeals for the personation offence were allowed and replaced by an absolute discharge.

The Crown appealed an acquittal entered after the trial judge found a section 8 Charter breach regarding a safety search incident to arrest.

The trial judge based this finding on conflicting police evidence about whether the arresting officers were told the respondent was known to carry a gun.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred in law by failing to consider relevant evidence of the officers' observations at the scene, which could have justified the search.

The appellant appealed his two-year sentence, introducing new evidence that he was unaware of the immigration consequences under s. 64(2) of the Immigration and Refugee Protection Act when he elected that sentence over a term of two years less a day.

The Crown conceded the application of existing authorities.

The Court of Appeal allowed the appeal and reduced the sentence to two years less a day concurrent on each count.

The appellant appealed a finding of civil contempt and a two-month term of imprisonment imposed for flagrant disregard of multiple court orders in a family law dispute.

The orders required him to pay funds into court, freeze accounts, and provide an accounting of dissipated funds.

The Court of Appeal confirmed it had jurisdiction, holding that a finding of contempt is a final order.

The court dismissed the appeal, finding the contempt finding amply supported by the record and the 60-day sentence fit given the appellant's deliberate breaches.

The appellant was convicted of trafficking cocaine and possession of proceeds of crime.

On appeal, he argued that the trial judge erred by refusing to review the Crown's peremptory challenge of the only proposed black juror, and by failing to adequately emphasize in the jury charge that no drugs or buy money were found on him at arrest.

The Court of Appeal dismissed the appeal, finding no pattern of arbitrary challenges by the Crown and concluding that the trial judge properly reviewed the defence theory regarding the absence of drugs and money.

The appellants were convicted of sexual assault by a judge and jury.

They appealed their convictions, arguing the trial judge erred in his W.(D.) instruction to the jury and by restricting cross-examination of the complainant regarding an incorrect in-court identification.

One appellant also argued the trial judge erred by revoking his bail mid-trial without hearing submissions.

The Court of Appeal dismissed the appeals, finding the jury instructions were appropriate in context, the cross-examination was properly restricted as collateral, and the bail revocation, while procedurally flawed initially, was corrected without prejudicing the fair trial.

Standardbred licensees brought motions before the Ontario Racing Commission seeking procedural relief prior to hearings regarding positive tests for Aminorex.

The Commission ordered the Administration to provide Amended Notices of Hearing detailing the alleged misconduct and rules violated.

The request for a court reporter was dismissed as moot due to a new policy of tape-recording all hearings.

The Commission ordered the Administration to disclose all information provided to the Judges, including material from the Canadian Pari-Mutuel Association, and granted a 20-day stay of proceedings for all current Aminorex positive test hearings.

In a youth criminal appeal involving a historical sexual offence allegation within a blended family, the appellant challenged both conviction and sentence.

The Court of Appeal held that evidence of earlier sexualized conduct between the parties was improperly admitted as similar fact evidence because the prior incidents were materially dissimilar, temporally remote, and did not support the complainant’s delayed disclosure.

The court found the impugned evidence was central to the trial and the curative proviso could not apply.

The conviction and related conditional stay were set aside and a new trial was ordered.

The appellant appealed his conviction, arguing that the confirmatory evidence of a witness was not sufficiently cogent to restore the trial judge's faith in another witness's testimony.

The Court of Appeal dismissed the appeal, holding that the weight to be given to the confirmatory evidence was a matter for the trial judge and that it was not unreasonable for the trial judge to find the evidence capable of confirming the central question.