Nicholas A. Xynnis

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.

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.

The appellant appealed a two-year sentence imposed following guilty pleas to drug trafficking and possession of proceeds of crime.

The sentence was based on a joint submission.

The appellant sought a one-day reduction in his sentence to avoid the prohibition under s. 64 of the Immigration and Refugee Protection Act against appealing a deportation order for permanent residents sentenced to at least two years.

The Court of Appeal allowed the appeal, noting that the immigration consequences were not considered at sentencing and that a one-day reduction would not detract from the fitness of the sentence.

The appellant appealed his 18-month sentence and lifetime driving prohibition for impaired driving and refusing a breath test.

The Court of Appeal found the sentence fit given the egregious circumstances and the appellant's record, noting the trial judge properly considered his guilty plea and gap in alcohol-related convictions.

The court varied the sentence to 17 months to clarify the trial judge's intention to grant one month of pre-trial custody credit, but upheld the lifetime driving prohibition.

The appellant appealed his sentence of imprisonment.

The majority of the Court of Appeal found that the sentencing judge erred in principle by giving insufficient weight to mitigating factors, including the appellant's age, learning disability, lack of criminal record, guilty plea, and efforts to atone.

The appeal was allowed, and the remainder of the sentence was converted into a conditional sentence.

Blair J.A. dissented, finding no error in principle by the sentencing judge.

The Crown appealed a decision of the Ontario Court of Appeal which quashed the accused's conviction for sexual offences and ordered a new trial.

The Supreme Court of Canada dismissed the appeal, agreeing with the majority of the Court of Appeal that the trial judge erred in admitting similar fact evidence without the benefit of the Court's reasons in R. v. Handy.

The appellant appealed his convictions for assault and assault carrying a weapon, arguing that the verdicts were inconsistent with his acquittals on related extortion charges and that the trial judge misapprehended a defence witness's evidence.

The Court of Appeal dismissed the appeal, finding that the verdicts were not violently at odds because there was confirmatory evidence of the assault, while the extortion charges lacked sufficient proof.

The court also found no error in the trial judge's treatment of the defence witness's evidence.

The appellant appealed his convictions for sexual assault, sexual exploitation, gang sexual assault, and forcible confinement.

He argued the trial judge erred in her jury instructions regarding DNA evidence, in refusing to declare a mistrial after the Crown mentioned the complainant's virginity, and that the Crown's closing address was inflammatory.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's exercise of discretion, noting the relevance of the virginity evidence to the aggravated sexual assault charge, and concluding the Crown's closing address was not inflammatory.

The appellant appealed his conviction, arguing that the verdict was unreasonable.

The victim had described his assailant's build, hair, clothing, age, and state of intoxication.

The appellant was found in the area twenty minutes later matching the description, had scratches on his chest, admitted to being in a fight, and was immediately recognized by the victim.

The Court of Appeal found the trial judge properly dealt with minor inconsistencies and dismissed the appeal.

The appellant pleaded guilty to possession of stolen property under $5,000 after taking stickers from his employer.

On appeal, he argued his plea was equivocal because his trial counsel submitted during sentencing that he honestly believed he was entitled to take the stickers due to common employee practice.

The Court of Appeal dismissed the appeal, finding the plea was not equivocal, the facts supported the plea, and the explanation offered in mitigation did not amount to a defence in law.