Joseph F. Kenkel

The accused was charged with mischief in relation to a property used for religious worship contrary to s. 430(4.1) of the Criminal Code.

The accused entered a mosque during Ramadan services, insulted Islam and those present, and then urinated on the mosque steps in front of children and families arriving for the service.

The court found the accused's testimony not credible, rejected the defence of necessity, and found that the Crown proved the mischief was motivated by religious hatred.

The accused was found guilty.

The accused was charged with operating a motor vehicle while impaired by alcohol contrary to s. 253(1)(a) of the Criminal Code.

A retired police officer discovered a vehicle in a ditch and spoke with two women at the scene.

The Crown's case rested primarily on eyewitness identification by the witness, circumstantial evidence, and alleged admissions by the accused.

The defence conceded the accused had been drinking but contested whether she was the driver.

The court found the eyewitness identification unreliable due to poor observation conditions, lack of corroborating details, and material discrepancies between the witness's description and the accused's appearance.

The charge was dismissed due to reasonable doubt as to identity.

The accused was charged with impaired operation of a motor vehicle and operation with a blood alcohol level over 80 mg/100 mL following a traffic stop for speeding and erratic driving.

The trial judge found that police breached the accused's s. 10(b) Charter right to counsel by failing to provide meaningful access to legal advice in Portuguese, despite knowing the accused had limited English proficiency and had specifically requested a Portuguese-speaking lawyer.

The breath test evidence was excluded under s. 24(2) as a remedy for this serious breach.

However, the trial judge found the Crown proved beyond a reasonable doubt that the accused's ability to operate the vehicle was impaired by alcohol based on the totality of the driving evidence, resulting in a conviction on the impaired operation charge and dismissal of the Over 80 charge.

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

The Crown alleged the accused had consumed alcohol at a bar, was stopped for a sobriety check, failed an Approved Screening Device test, and was arrested.

Breath samples at the station showed readings of 157 mg/100ml and 148 mg/100ml.

The defence raised three Charter issues: whether the Approved Instrument demand was made "as soon as practicable" under s.254(3); whether the accused's right to be informed promptly of the reason for detention under s.10(a) was breached; and whether the accused's right to counsel under s.10(b) was breached due to insufficient duty counsel advice.

The court found no Charter breaches and convicted the accused.

The accused was charged with Over 80 following a drinking and driving investigation.

The officer's approved screening device malfunctioned, resulting in an eight-minute delay while a second device was obtained.

During this delay, the accused was placed in the police car and subjected to a pat-down search.

The accused was arrested and advised of his right to counsel six minutes later.

The defence raised six Charter breaches.

The court found that the ASD demand and test were conducted forthwith despite the delay caused by device malfunction.

The court found breaches of sections 8 and 9 regarding the detention in the police car and search, and a technical breach of section 10(b) regarding the delay in right to counsel advice.

However, applying the section 24(2) test from R v Grant, the court found that admission of the breath test evidence would not bring the administration of justice into disrepute given the minor impact of the breaches on the accused's Charter-protected interests and society's interest in adjudication on the merits.

The accused was found guilty.

The defendant applied for a mistrial after the Crown cross-examined him regarding three previous drinking and driving charges during trial on an "Over 80" charge.

The Crown's stated purpose was to establish the defendant's familiarity with the criminal justice system in response to his Charter voir dire evidence regarding his understanding of the right to counsel.

The court found that while the Crown did not act with improper purpose, the questions were highly prejudicial with minimal probative value.

The court declared a mistrial, finding that a reasonable apprehension of bias existed such that a fully informed observer could reasonably conclude the trial was unfair.

The appellants sought extension of time to appeal provincial offence convictions for a parking violation and a red light infraction.

This was the fourth application for extension of time.

The appellants had repeatedly failed to appear at trial dates, appeal dates, and subsequent proceedings.

Previous applications had been dismissed as abandoned, and a prior judge had ordered that no further applications be filed without judicial leave.

The appellants did not comply with this order.

The court found the repeated filings to be frivolous and an abuse of process, and dismissed both applications with an order prohibiting further applications without prior written leave from a judge.

The accused was charged with refusing to comply with a lawful breath demand contrary to the Criminal Code.

Following a citizen complaint of impaired driving, police located the accused in the driver's seat of a vehicle with the engine running.

After failing an Approved Screening Device test, the accused was arrested and taken to the station where he was demanded to provide breath samples on an Approved Instrument.

The accused refused to comply.

The trial addressed multiple Charter issues including care or control, reasonable grounds for the demand, timing of the demand, the validity of the refusal, potential reasonable excuse based on mistrust of police, and alleged breaches of sections 10(a), 10(b), 8, and 9 of the Charter.

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

The accused was arrested following a police response to a call about an intoxicated passenger in a cab.

A search incident to arrest revealed the accused was in possession of 111 grams of Ketamine.

The Crown alleged possession for the purpose of trafficking.

The accused conceded possession of the substance but contested the trafficking allegation.

The sole issue at trial was whether the Crown proved the accused possessed the Ketamine for trafficking purposes.

The Crown relied on expert evidence regarding the quantity being consistent with trafficking.

The defence argued the absence of other indicia of trafficking left open the reasonable possibility of personal use.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood.

The Crown proved the charge beyond a reasonable doubt.

The defence raised multiple Charter arguments including arbitrary detention, improper ASD demand and testing procedures, and sought exclusion of evidence.

The court rejected all Charter arguments and found the Crown's evidence reliable and admissible.

The defence's bolus drinking evidence was found to be illogical, internally inconsistent, and not credible.

The Crown sought to qualify a police officer to give opinion evidence regarding the methodology of drug trafficking, pricing, distribution, and street use of ketamine in a possession for trafficking case.

The defence challenged the officer's qualifications.

The court applied the Mohan criteria and White Burgess test for expert evidence admissibility, finding that the officer's training, experience with approximately 30 ketamine investigations, conversations with other officers and drug users, and prior testimony as a drug expert provided a sufficient foundation for the proposed opinion evidence.

The court admitted the evidence while excluding toxicology information regarding lethal dosing as beyond the officer's expertise.

The defendant applied for a stay of proceedings alleging a breach of his Charter right to trial within a reasonable time under section 11(b).

The trial was scheduled for two days in November 2016, but the second day could not be completed due to court unavailability.

A Crown witness failed to appear on the adjourned date in January 2017, resulting in a further adjournment to February 2017.

The total delay from information to trial completion was 529 days.

After deducting defence delay, the net delay was 482 days, falling below the 18-month presumptive ceiling for Ontario Court of Justice cases.

The court found that the defence failed to demonstrate the case took markedly longer than it should have and dismissed the application.

The accused was charged with impaired driving following a roadside stop initiated by a citizen complaint about erratic driving.

A constable made an Approved Screening Device demand based on observations including the accused's glassy eyes, presence of beer in the vehicle, erratic driving report, and the accused's persistent smoking despite police instruction to stop.

The sole issue at trial was whether the officer had the required reasonable suspicion under section 254(2) of the Criminal Code to make the demand.

The court found that the totality of circumstances provided an objectively reasonable basis for the officer's suspicion and that the demand was lawful.

The accused was found guilty.

The appellant appealed his conviction on the grounds that his trial was unfair.

The Justice of the Peace improperly terminated the appellant's cross-examination of the officer after only one question, before the witness could answer the appellant's second question regarding photographs of the scene.

The court found the trial was indeed unfair due to this procedural irregularity and allowed the appeal, ordering a new trial.

The appellant appealed his conviction for failing to stop at a red light contrary to section 144.18.1 of the Highway Traffic Act.

The evidence consisted solely of red light camera photographs and encoded data.

The appellant raised four grounds of appeal: (1) no photograph showed the vehicle in the intersection during the red light; (2) the court referred to outside knowledge not in evidence; (3) the prosecutor gave evidence via submissions; and (4) there was a reasonable apprehension of bias.

The appellate court dismissed all grounds and upheld the conviction, finding that the circumstantial evidence from the photographs reasonably supported the inference that the vehicle entered the intersection on the red light.

The appellant appealed his conviction for stunt driving contrary to section 172(1) of the Highway Traffic Act.

The appellant raised five grounds of appeal: (1) the officer should not have reviewed his notes prior to testimony; (2) the Justice of the Peace erred in finding the officer had sufficient independent recollection; (3) the Justice of the Peace erred in accepting speedometer evidence without independent certification; (4) the prosecution failed to prove the vehicle's speed exceeded 50 km/hr over the posted limit; and (5) the Justice of the Peace pre-judged the case.

The appeal was dismissed on all grounds.

The appellant appealed the acquittal of the respondent on a charge of failing to signal a lane change contrary to section 142(1) of the Highway Traffic Act.

The trial court had erred in law by requiring proof that other vehicles were actually affected by the failure to signal.

The Court of Appeal clarified that the offence requires only that another vehicle "may be affected" by the movement, not that it actually be affected.

The appeal was allowed and a finding of guilt was entered.

The accused was charged with impaired driving and operating a vehicle with a blood alcohol concentration exceeding 80 mg/100 mL following a traffic stop.

The defence sought to exclude breath test results pursuant to s. 24(2) of the Charter based on alleged breaches of the right to counsel.

The court found that the accused's s. 10(a) and s. 10(b) Charter rights were breached because the officer failed to ensure the accused, who had limited English proficiency, understood his rights and failed to facilitate contact with counsel despite the accused providing a lawyer's name.

The court excluded the breath test evidence as a remedy for the Charter breach.

Additionally, the court found the Crown failed to prove beyond a reasonable doubt that the accused's ability to operate the vehicle was impaired based on the evidence presented.

The accused was charged with sexual assault, sexual interference, and sexual exploitation of a person with a mental disability in September 2013.

The trial evidence was completed in January 2017.

The defence applied for a stay of proceedings alleging a breach of the accused's Charter right to trial within a reasonable time under section 11(b).

The court applied the Jordan framework and found that the net delay of 512 days fell below the presumptive ceiling of 18 months for provincial court trials.

The court attributed significant delay to defence conduct and found that exceptional circumstances, including surprise witness testimony leading to expanded investigation and case complexity, reasonably explained the remaining delay.

The application was dismissed.

A company pleaded guilty to an offence under s. 148(2) of the Canada Labour Code where injury was caused.

An untrained co-op student and part-time employee operated a crane, resulting in a steel beam falling and crushing a worker's leg.

The worker was off work for two years and unable to resume his prior duties.

The Crown and defendant jointly submitted a fine of $70,000, which the court accepted as appropriate given the early guilty plea, cooperation with investigation, remedial safety measures undertaken, the company's 60-year history of workplace safety, and demonstrated financial hardship.