Joseph F. Kenkel

The accused was charged with two counts of assault on his wife.

The central issue was credibility between the complainant's account of two violent incidents and the accused's denial of any physical violence.

The complainant testified about a December incident involving sausages where the accused pushed her down the stairs and kicked her, and an October incident involving socks where the accused grabbed her by the neck from behind, causing scratches.

The accused testified that he did not use any physical force and characterized his wife as a frequent 911 caller who fabricated complaints.

The court found the complainant to be a credible, forthright witness whose evidence was logical, internally consistent, and reasonably explained her prior failure to report violence.

The court found the accused's testimony not credible, noting his inability to testify in a responsive manner, his attempts to trivialize his wife's complaints, and his controlling behaviour consistent with the complainant's account.

Both counts were proven beyond a reasonable doubt.

The accused was charged with impaired operation causing bodily harm, dangerous operation causing bodily harm, and impaired operation following a serious motor vehicle collision that resulted in life-threatening injuries to passengers.

The Crown's case relied on expert toxicology evidence establishing a projected blood alcohol concentration of 66-96 mgs/100ml at the time of driving, the manner of driving, and accident reconstruction evidence.

The defence argued that the absence of physical indicia of impairment created reasonable doubt.

The court found that the accused's driving demonstrated mental impairment consistent with alcohol consumption, including failure to perceive the need to slow speed and failure to react to wet road conditions.

The court convicted on all three counts.

The accused was charged with operating a vehicle while impaired by alcohol and refusing to provide a breath sample.

The Crown proved beyond a reasonable doubt that the accused's ability to operate her vehicle was impaired by alcohol consumption based on credible evidence from police officers and an independent witness.

However, the Crown failed to prove the refusal charge.

The court found that given the extent of the accused's intoxication and resulting mental confusion and disorientation at the time of the breath demand, a reasonable doubt existed regarding the mental element of the refusal offence.

The accused was found guilty of impaired driving but acquitted of the refusal charge.

The accused was charged with sexual assault, forcible confinement, assault, and assaulting a peace officer arising from incidents involving his former partner.

The court rejected the accused’s testimony as inconsistent, illogical, and contradicted by prior statements and other evidence.

The complainant’s account that the accused tied her while asleep and engaged in non‑consensual anal intercourse was found credible and supported by surrounding circumstances.

The court also accepted evidence that the accused choked the complainant during a later domestic dispute and actively assaulted an officer while resisting arrest.

The Crown proved the offences beyond a reasonable doubt and convictions were entered on four counts, with one count dismissed at the Crown’s request.

The accused was convicted of impaired driving after driving erratically and colliding with a parked vehicle at a red light, pushing it 15 feet into an intersection.

Four occupants were in the vehicle, including a 3-year-old child.

Two occupants suffered back pain requiring physical therapy.

Breath tests showed readings of 202 and 206 mgs/100ml.

The Crown sought a 45-day custodial sentence with probation and an extended driving prohibition.

The defence sought a fine with probation, or alternatively a conditional sentence.

The court imposed a conditional sentence of 3 months followed by 2 years probation and a 2-year driving prohibition, considering the accused's genuine remorse, significant rehabilitation efforts through alcohol and psychological counselling, and the need for general deterrence in the context of impaired driving incidents in the region.

The court ruled on the admissibility of a statement given by the accused to police investigating a serious motor vehicle accident.

The Crown sought to establish that the statement was voluntary, while the defence challenged its admissibility on the grounds that the accused was detained without being advised of his Charter rights to counsel.

The court found that the statement was voluntary and that no detention occurred, making the statement admissible in evidence.

The accused was stopped at a mobile RIDE check, failed two Approved Screening Device tests, and was charged with driving with a blood alcohol concentration in excess of the legal limit.

The defence raised five Charter issues: whether the officer had reasonable suspicion for the ASD demand based on odour of alcohol; whether an informal demand satisfied s. 254(2); whether the officer's failure to wait the full 15 minutes before the second ASD test was objectively unreasonable; whether s. 10(b) requires expanded information about accessing private counsel; and whether the officer undermined solicitor-client privilege by referring to legal advice during the Approved Instrument demand.

The court dismissed all Charter applications and found the Crown proved the elements of the offence beyond a reasonable doubt.

The Crown sought to admit a statement made by the accused to police following his arrest for assault.

The defence challenged the admissibility of the statement on the grounds that threats made by officers at the scene, including a threat to use a Taser, deprived the accused of his free will to choose whether to make a statement.

The court applied the contextual inquiry into voluntariness from R v Oickle and found that the Crown proved beyond a reasonable doubt that the statement was voluntary.

The accused's change in demeanor from anger to calm was not the result of threats or coercive conduct, but rather the result of the calm persistence of the transporting officer.

The statement was admitted as evidence.

The accused was found unconscious in grass near a white Mercedes with the engine running in a parking lot entrance.

The Crown charged the accused with impaired care or control of a motor vehicle.

The Crown proved beyond a reasonable doubt that the accused was intoxicated by alcohol to a high degree.

The central issue was whether the Crown proved care or control through circumstantial and limited direct evidence from surveillance video.

The court applied the test from R v. Villaroman regarding circumstantial evidence and found that the Crown's theory—that the accused drove the vehicle to the parking lot exit, then collapsed—was the only reasonable inference on the whole of the evidence.

Alternative theories, such as the accused never being in the car or being a passenger, were found to be unreasonable given the totality of circumstances.

The appellant was convicted at trial of failing to yield to oncoming traffic contrary to section 139 of the Highway Traffic Act after his vehicle was struck by a motorcycle while turning left from a company driveway.

The appellant appealed on grounds of misapprehension of evidence, failure to properly determine the actus reus before considering due diligence, and failure to apply the reasonable doubt standard.

The appellate court upheld the conviction, finding that the trial court's findings of fact were reasonably supported by the evidence and that the appellant failed to establish due diligence on the balance of probabilities.

The accused was charged with failing to comply with a screening device demand contrary to s. 254(5) of the Criminal Code.

The Crown alleged the accused deliberately failed to provide a suitable breath sample during an approved screening device test.

The defence argued the failure was not wilful and alternatively that the accused had a reasonable excuse, claiming he was suffering from a cold or flu and was physically unable to provide a sample.

The court found that the accused deliberately failed to follow simple instructions to blow into the device, repeatedly sucking air instead, and rejected the accused's credibility regarding his claimed illness based on video evidence showing normal breathing and speech capacity.

The accused was charged with impaired operation of a motor vehicle and operating a vehicle with a blood alcohol level in excess of 80 mgs/100ml following a collision where she drove into a stopped vehicle at full speed.

The Crown proved reasonable grounds for arrest based on the dangerous driving, physical observations, and odour of alcohol.

The court found breaches of the accused's Charter rights under sections 10(a) and 10(b) due to delayed notification of the change in investigation purpose and failure to advise of right to counsel.

However, the breaches were found to be minor with no real impact on the accused's interests, and the breath test evidence was admitted under section 24(2).

The court found the accused guilty of impaired operation based on both the breath test readings and the pattern of dangerous driving, mental confusion, and impaired faculties demonstrated before and after the collision.

The accused was convicted of assault, two counts of failing to comply with bail, and criminal harassment in relation to his spouse in 2015.

He was subsequently convicted of two counts of failing to comply with probation, assault, and threatening death after breaching his probation by resuming residence with his spouse and assaulting her with threats to kill.

The court imposed a global custodial sentence of 5 months and 15 days, finding that general deterrence was the primary consideration given the pattern of escalating domestic violence, consistent disregard for court orders, and high risk to the victim and her children.

The Crown charged the accused with two counts arising from threatening phone calls made to his former spouse in the early morning hours.

The accused called repeatedly at 2 a.m. and thereafter, making threats to kill the complainant and her husband, and threatening to take their daughter from school.

The accused denied making death threats and claimed he was merely frustrated about not seeing his daughter.

The court found the complainant to be a credible witness whose account was consistent with her actions and the circumstances of the calls.

The court rejected the accused's evidence as unreliable, noting his extensive criminal record involving dishonesty and his inconsistent recollection of events.

The court found both counts proved beyond a reasonable doubt and entered findings of guilt.

The accused was charged with three counts of failing to comply with probation orders under s.733.1 and one count of failing to comply with a SOIRA order under s.490.031.

The Crown and defence agreed that counts 3 and 4 should be dismissed.

The defence argued that the Crown must prove the failures to report were wilful and that the accused's mental health difficulties provided a reasonable excuse for non-compliance.

The court found that s.733.1 does not require proof of wilfulness and that the evidence did not establish a reasonable excuse.

The court convicted on counts 1 and 2 and dismissed counts 3 and 4.

The accused brought a Charter s.11(b) application seeking a stay of proceedings based on delay in trial.

The accused was charged with operating a motor vehicle while impaired by drug, resisting arrest, and possession of cocaine.

The trial commenced on its third scheduled date after nearly three years of delay.

The court applied the Jordan framework to assess whether the delay breached the accused's right to trial within a reasonable time.

After deducting defence delay and accounting for discrete exceptional events, the remaining delay fell below the presumptive ceiling.

The court found the Crown had proven the delay was not unreasonable in the circumstances and dismissed the application.

The Crown applied to determine whether a provincial court has jurisdiction to revisit the constitutionality of a law after a Superior Court has issued a declaration of invalidity pursuant to section 52 of the Charter of Rights and Freedoms.

The Crown argued that despite prior declarations finding mandatory minimum sentences unconstitutional, courts of coordinate jurisdiction may continue to consider the same issue constrained by principles of comity.

The court held that a section 52 declaration is a unique constitutional remedy that renders a law of no force and effect in the province and is binding on all parties and courts.

The Crown's application was dismissed.

The applicant was charged with nine drug offences arising from a search warrant executed at his residence.

He challenged the validity of the warrant under section 8 of the Canadian Charter of Rights and Freedoms, arguing that the warrant should not have been issued and that the search breached his right to be free from unreasonable search and seizure.

The applicant also argued that the warrant was a ruse or pretext to gain entry to install listening devices related to a parallel homicide investigation.

The court applied the Garofoli test and found that there was sufficient credible and reliable evidence to support the issuance of the warrant under section 11 of the Controlled Drugs and Substances Act.

The court rejected the argument that the dual purpose of the warrant rendered it invalid, finding that the presence of a secondary purpose did not invalidate the resort to the statutory power.

The application was dismissed.

The defendant was convicted of operating a motor vehicle with a blood alcohol level in excess of the legal limit (Over 80).

The Crown sought a $1,600 fine, probation, and an 18-month driving prohibition.

The defence conceded an elevated fine was appropriate but requested a lower amount with the minimum 12-month prohibition.

The court imposed a $1,600 fine plus victim fine surcharge with 12 months to pay, 18 months probation with conditions including alcohol counselling and drinking and driving counselling, and an 18-month driving prohibition.

The court emphasized the aggravating factor of the very high blood alcohol readings and the need for sentences to reflect the high risk to public safety.

The accused was charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit (Over 80).

The Crown proved the accused was driving with a blood alcohol level of 210-240 mgs at the time of operation, nearly triple the legal limit.

The defence raised five alleged Charter breaches seeking to exclude the breath test evidence.

The court rejected all Charter breach arguments, finding: (1) any misworded approved screening device demand was technical and harmless; (2) inconsistencies regarding the accuracy check did not undermine reasonable grounds; (3) the "as soon as practicable" requirement was satisfied; (4) adequate privacy measures were provided in the cell; and (5) reasonable efforts were made to contact counsel of choice.

The court found the accused guilty.