Joseph F. Kenkel

The accused applied for disclosure of third-party records held by a shelter and Children's Aid Services.

The court addressed two main issues: (1) disclosure of Children's Aid records, which was resolved by consent of all parties; and (2) disclosure of counselling records from the Yellow Brick House shelter.

The court applied the O'Connor test and considered solicitor-client privilege.

The court rejected the defence argument that the "innocence at stake" exception to solicitor-client privilege applied, finding that speculation about potential contradictory statements was insufficient to overcome the stringent test.

The court ordered partial disclosure of specific portions of the shelter records relating to the mother while protecting the child's privacy and privileged communications.

The accused was charged with impaired operation of a motor vehicle.

The Crown alleged that the accused's ability to operate his vehicle was impaired by alcohol consumption.

The accused testified that he consumed only one draft beer and that his loss of consciousness at the roadside was not due to alcohol.

The court found the accused's testimony unreliable and not credible, and accepted the evidence of the police officers regarding the accused's erratic driving, observations at the roadside, and subsequent conduct at the hospital.

The court concluded that the Crown proved the charge beyond a reasonable doubt based on the pattern of impaired driving, the accused's blackout, and the receding of symptoms consistent with alcohol impairment over time.

The accused was convicted at trial of tax evasion for failing to file income tax returns for four consecutive tax years (2007-2010) while receiving over $2 million in salary, bonuses, and dividends from his company.

The Crown sought a custodial sentence of up to two years plus a fine of 100% of taxes evaded.

The defence sought a conditional sentence with a fine of 50-100% of taxes evaded.

The court imposed a 20-month custodial sentence and a fine of 100% of the taxes evaded ($552,976), finding that a conditional sentence would not provide sufficient deterrence given the sophistication of the offender, the scale of the evasion, and the ease with which such offences can be committed.

Four provincial offence appeals concerning the arbitrary rejection of joint submissions as to sentence by Justices of the Peace.

The appellate court found that in each case, the trial courts erred in law by rejecting joint submissions without applying the appropriate legal test established in R v. Anthony-Cook.

The rejections were based on improper considerations including insistence on set fines, desire for consistency without regard to circumstances, unfounded concerns about ability to pay, and assertions of judicial independence.

The court emphasized that joint submissions are essential to the efficient operation of provincial offences courts and should only be rejected where the proposed sentence would bring the administration of justice into disrepute or be contrary to the public interest.

All four appeals were allowed and sentences were varied to reflect the original joint submissions.

A youth was charged with attempted murder, assault with a weapon, obstruction of justice, personation, possession of a weapon for a dangerous purpose, and two counts of failing to comply with a youth sentence.

The Crown conceded that attempted murder could not be proven beyond a reasonable doubt.

The central issues were whether the Crown proved the identity of the assailant and whether aggravated assault was an included offence.

The incident occurred at a semi-formal high school party where the accused stabbed the victim following a confrontation in a washroom.

The court found the Crown proved the accused was the assailant beyond a reasonable doubt based on credible witness testimony and circumstantial evidence, but convicted on the included offence of aggravated assault rather than attempted murder.

The accused was charged with Over 80 following a minor motor vehicle collision.

The defence challenged the lawfulness of the Approved Screening Device (ASD) demand and subsequent breath tests on Charter grounds, arguing the officer lacked reasonable suspicion, the demand was not made promptly, and the test was not administered forthwith.

The court found the officer had reasonable suspicion based on the odour of alcohol on the accused's breath, the admission of past drinking, glossy eyes, and the motor vehicle collision.

The court found the delay between the informal demand and formal demand was reasonable given safety concerns and the need to locate an available ASD.

The court found no Charter breaches and convicted the accused of Over 80.

The accused was charged with "Over 80" following a traffic stop for running a red light.

The Crown obtained breath samples through an Approved Instrument (AI) demand after the accused failed an Approved Screening Device (ASD) test.

The defence challenged the lawfulness of the AI demand on the basis that it was made in English to an accused with limited English proficiency, and that subsequent translation by a police officer did not cure the defect.

The court found that the initial demand by the arresting officer was lawful under s. 254(3) of the Criminal Code, that lack of understanding due to language difficulty does not invalidate the demand, and that the demand was properly translated into Mandarin before testing.

The court also found that even if there were a technical breach, exclusion of evidence would not be warranted under s. 24(2).

The accused was found guilty.

The Crown applied for leave to cross-examine their own witness on two prior inconsistent statements made to police.

The witness, the wife of the accused, had made statements on the night of the incident and again three days later under solemn affirmation.

The defence opposed the application, citing concerns about the reliability of the statements due to the witness's emotional state, lack of sleep, language barriers, and alleged compulsion.

The court granted the Crown's application, finding that the statutory criteria under s.9(2) of the Canada Evidence Act were met and that the ends of justice were best served by permitting cross-examination.

The accused was charged with human trafficking, sexual exploitation, sexual assault, and possession of stolen property arising from his involvement in a sex trafficking operation in York Region.

The Crown's case relied primarily on the testimony of the complainant, a former university student who entered the sex trade.

The court found significant credibility issues with the complainant's evidence, including numerous internal contradictions, evasive demeanor, and inconsistencies between her trial testimony and her police statement.

The accused did not testify but made a voluntary statement to police.

The court convicted the accused on one count of possession of stolen property (the complainant's cellphone) but acquitted on all other counts, finding the Crown had failed to prove the charges beyond a reasonable doubt.

The accused was charged with eight offences including two counts of sexual assault and four counts of exploitation via compelled prostitution.

The Crown sought to admit a PDF book entitled "Pimpology — The 48 Laws of the Game" recovered from the accused's laptop.

The defence opposed admission on grounds of minimal probative value and significant prejudicial impact.

The court found the book to be relevant circumstantial evidence supporting the complainant's credibility and weighing against the accused's statements denying involvement in human trafficking.

The court admitted the evidence, finding that probative value outweighed potential prejudice.

A school bus driver was convicted of making a lane change not in safety contrary to section 142(1) of the Highway Traffic Act after striking a vehicle while pulling away from a bus stop.

The driver appealed on three grounds: that the trial judge erred in finding him partially credible, that the burden of proof was not properly applied, and that the defence of due diligence was not considered.

The appeal was dismissed.

The court held that credibility assessments are not all-or-nothing propositions, the trial judge properly applied the WD test, and the factual findings did not support a due diligence defence.

The appellant appealed a conviction for speeding following entry of a guilty plea.

The paralegal representing the accused entered a guilty plea contrary to the accused's instructions and without her consent.

The court found that the decision to plead guilty was the exclusive right of the accused and that the guilty plea was entered without proper authority.

The appeal was allowed and a new trial was ordered.

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 that a sergeant observed the accused driving erratically, smelled alcohol on the accused's breath, and obtained an admission of drinking.

An Approved Screening Device test was administered at the roadside, which the accused failed.

The accused was arrested and transported to a police station where approved instrument testing resulted in readings of 170 and 180 milligrams.

The defence challenged the lawfulness of the stop, the ASD demand, the arrest, and the delay in providing access to counsel.

The court found no Charter breaches and convicted the accused.

The accused was convicted at trial of assault upon his 11-year-old son.

The assault occurred when the accused lost his temper after the child refused to leave a video game to attend a family barbecue, resulting in the accused dragging the child, throwing him against a wall, and holding him by the cheeks and neck.

The Crown sought a four-month jail sentence followed by 18 months of probation, while the defence sought a conditional discharge.

The court imposed a suspended sentence with 18 months of probation, finding that neither custodial nor discharge sentences were appropriate given the aggravating factors balanced against mitigating circumstances.

The accused was charged with Failing to Comply with Probation (x2), Break and Entry to a Dwelling, Threatening Death, Assault, Mischief to a Cellphone, and Assault Causing Bodily Harm.

The defence conceded the two probation breaches.

The Crown's case on the remaining charges rested entirely on the complainant's testimony regarding two incidents in November 2014 and February 2015.

The court found the complainant to be a reluctant but generally credible witness.

However, the court found significant inconsistencies in her account of the February 2015 incident, particularly regarding contemporaneous text messages that contradicted her trial testimony.

The court found the Crown had proven the probation breaches beyond a reasonable doubt but failed to prove the remaining counts beyond a reasonable doubt.

The accused was charged with wilfully evading or attempting to evade payment of $552,976 in Federal taxes by failing to file income tax returns for the taxation years 2007-2010 contrary to s.239(1)(d) of the Income Tax Act.

The accused admitted the failure to file but claimed he always intended to pay taxes in the future.

The Crown argued the accused deliberately chose not to file to avoid immediate tax payment.

The court found the accused guilty, determining that the Crown proved beyond a reasonable doubt that the accused had the requisite intent to evade taxes.

The court found the accused was not a credible witness and that his claim of future intent to pay did not provide a defence to tax evasion.

The accused was charged with impaired driving after being stopped by police and failing an approved screening device test.

The trial addressed multiple Charter issues: whether grounds existed for further testing despite the presence of mouthwash in the vehicle, whether the initial stop was arbitrary, and whether the accused's right to counsel was breached.

The court found no breach of sections 8 or 9 of the Charter, but found multiple breaches of section 10(b) when police failed to provide a reasonable opportunity to speak with counsel of choice and made comments discouraging the exercise of that right.

The evidence was excluded under section 24(2) and the charge was dismissed.

The Crown applied for a Dangerous Offender designation against the accused following his guilty pleas to 35 counts involving sexual offences against 14 victims ranging from infants to adults, as well as bestiality and child pornography offences.

The accused had engaged in systematic sexual predation over approximately nine years, from age 14 to 22, including plans to drug and rape children.

The defence argued for a Long Term Offender designation instead, emphasizing the accused's potential for treatment and rehabilitation.

The court found that the Crown had proven beyond a reasonable doubt that the accused met the statutory criteria for Dangerous Offender designation under section 753(1) of the Criminal Code, considering the pattern of repetitive and aggressive behaviour, the complete inability to control sexual impulses, and the escalating nature of the offences.

The court designated the accused as a Dangerous Offender.

The accused was charged with assault of his minor son during a family dispute.

The Crown alleged that the accused, in anger, pulled his son to the doorway, threw him towards the door, choked him, and forced him onto a stool by the entrance.

The defence claimed the accused only pulled his son across the floor after reasonable persuasion failed, held his face briefly to get his attention, and that section 43 of the Criminal Code provided a defence for reasonable parental discipline.

The central issue was credibility.

The court found the accused's testimony unreliable and accepted the credible evidence of the three child witnesses.

The court determined that the accused's actions were plainly outside the scope of section 43 and constituted excessive force.

The accused was found guilty.

The applicant sought a stay of proceedings under s.11(b) of the Canadian Charter of Rights and Freedoms based on delay.

The Information was sworn 15 months prior, and this was the third trial date.

The court applied the Jordan framework and found that while the net delay of 15 months fell below the presumptive ceiling of 18 months for the Ontario Court of Justice, the defence had demonstrated both a sustained effort to expedite proceedings and that the case took markedly longer than it should have.

The Crown failed to take reasonable steps to expedite the proceedings, particularly when the assigned Crown was unavailable at the scheduled trial start time, resulting in the trial not being completed as scheduled.

The court granted the stay of proceedings.