Joseph F. Kenkel

A dangerous offender application hearing where the Crown sought to prove contested facts regarding sexual offences against multiple adolescent girls and children.

The accused had pleaded guilty to 34 charges involving numerous sexual offences.

The Crown sought to establish additional discreditable conduct that predated the existing charges, which had originally been charged under the Youth Criminal Justice Act.

The court heard evidence from four complainant witnesses and assessed credibility and reliability of their testimony against the beyond reasonable doubt standard applicable to contested facts in dangerous offender proceedings.

The accused was charged with care or control of a motor vehicle while impaired by alcohol and while his blood alcohol level exceeded the legal limit.

The Crown and defence agreed that the accused was in care or control and that his blood alcohol level exceeded 80 mg/100 mL.

The remaining issues were whether the Crown proved alcohol impairment, whether the demand for breath samples was made without reasonable grounds contrary to s. 8 of the Charter, and whether any breath test readings should be excluded under s. 24(2).

The court found that the officer had reasonable grounds for the demand based on observations of impairment and erratic driving.

The court found the accused's ability to operate the vehicle was significantly impaired by alcohol based on observed signs including slurred speech, unsteadiness, poor motor skills, and inability to remain conscious.

The court convicted the accused on both charges.

The accused was charged with impaired driving and operating a motor vehicle with a blood alcohol level exceeding 80 mg per 100 ml of blood following a RIDE spot check.

The impaired charge was dismissed due to lack of evidence of impairment.

On the Over 80 charge, the defence raised multiple Charter breaches including timing of breath samples, failure to videotape, lost evidence, lack of reasonable grounds, and denial of right to counsel.

The court rejected all Charter breach arguments and found the Crown proved the accused operated a motor vehicle with a blood alcohol level over the legal limit.

Conviction entered.

The accused was stopped at a RIDE checkpoint and arrested for driving under suspension after failing an approved screening device test.

A search incident to arrest revealed crack cocaine in his possession.

The defence sought exclusion of the cocaine evidence under s. 24(2) of the Charter, alleging three breaches: arbitrary arrest under s. 9, unreasonable search under s. 8, and failure to provide complete right to counsel information under s. 10(b).

The court found no Charter breaches and admitted the evidence.

The accused was found guilty of possession of cocaine.

The accused was charged with assault contrary to s. 266 of the Criminal Code following an altercation outside a bar.

The complainant alleged the accused punched her in the face, causing her to fall to the ground.

The accused claimed he did not make physical contact and that the complainant tripped and fell on her own.

The central issue was the credibility and reliability of witness evidence.

The court found the complainant's evidence, corroborated by video evidence and the testimony of a sober independent witness, established that the accused rushed toward the complainant with an extended arm and made contact with her head area, causing her to fall.

The accused's evidence was found to be inconsistent with the video record and other credible evidence.

The court found the Crown proved the allegation beyond a reasonable doubt and entered a conviction.

The accused was charged with driving while impaired by drug (cannabis) following a traffic stop for a defective tail light and mismatched license plate.

The Crown's case relied on observations by the arresting officer and a Drug Recognition Evaluator (DRE) examination.

The court found that while the officers had reasonable grounds for their investigative steps, the Crown failed to prove beyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired.

The charge was dismissed.

The accused was convicted at trial of possession of 55 grams of ketamine for the purpose of trafficking.

The Crown sought a 12-month sentence while the defence sought 90 days.

The court imposed a 7-month custodial sentence followed by two years probation, finding that while the accused demonstrated significant rehabilitation efforts and was an addict trafficker rather than profit-motivated, the prior related conviction, the amount of the drug, and the dangers posed by ketamine required a custodial sentence beyond what the defence proposed.

The accused applied to stay proceedings pursuant to s. 24(1) of the Charter to remedy an alleged breach of his s. 11(b) rights (right to trial within a reasonable time).

The information was sworn on July 22, 2015, and the trial date was September 1, 2016, representing 408 days of delay.

After accounting for defence-requested adjournments, the net delay was 380 days, falling below the presumptive ceiling for Ontario Court of Justice.

The court found that while the case took longer than it should have, it did not take markedly longer such that a stay was appropriate.

The application was dismissed.

The defendants were charged with three breaches of the Securities Act: trading in securities without registration, trading without filing a prospectus, and trading while prohibited by a cease trade order.

The sole issue was whether fourteen promissory notes totaling $700,000 issued to investment clients constituted securities under the Act.

The defendants admitted the factual elements but argued the notes were private loan agreements exempt from securities regulation.

The court applied the "Family Resemblance Test" from Reves v. Ernst & Young and found the notes were not securities, as they resembled notes secured by a lien on a small business's assets—a recognized category of non-security notes.

The charges were dismissed.

The accused was charged with failing to comply with an approved screening device (ASD) demand contrary to section 254(5) of the Criminal Code.

The Crown conceded that the ASD demand was lawful.

The sole issue was whether the accused had a reasonable excuse for failing to provide an adequate sample.

The accused did not outright refuse but failed to provide a suitable sample after multiple attempts.

The defence argued that language difficulties and the accused's request for an interpreter, which was difficult to hear and not understood by the officer, reasonably explained the confusion and failure to follow instructions.

The court found that the evidence disclosed a reasonable excuse due to language difficulties and dismissed the charge.

The accused pleaded guilty to two counts of procuring under s.212(1), one count of uttering a threat to cause death under s.264.1(1), and one count of failing to comply with a recognizance under s.145(3).

The accused lured two young women into working as dancers at strip clubs and encouraged them to engage in prostitution, taking all their earnings.

He also made violent threats against a former partner.

The Crown sought one year additional jail time, while the defence sought time served or a short intermittent sentence.

The court imposed a suspended sentence with three years probation, citing the accused's extended pre-trial custody and house arrest, his demonstrated rehabilitation while on strict release, and his stable employment and family relationships.

The accused was arrested for suspected impaired driving and found in possession of 55 grams of ketamine, 0.2 grams of ketamine in a separate package with a straw, cash, and a cellular phone.

A search of his vehicle revealed additional drugs, scales, multiple cellular phones, and a bag of white powder.

The defence conceded possession of ketamine but contested whether it was possessed for the purpose of trafficking.

The Crown relied on circumstantial evidence including the quantity of the drug, expert evidence regarding typical consumption rates, the presence of scales and multiple phones, and the accused's financial circumstances.

The court found the accused's testimony regarding heavy personal use was not credible and that the only rational inference from the evidence was that the ketamine was possessed for trafficking purposes.

The accused was charged with care or control of a motor vehicle while over 80 milligrams of alcohol per 100 millilitres of blood, contrary to the Criminal Code.

Police received a tip that a woman had been drinking all day and was driving to a beer store.

Officers located the vehicle at the beer store and stopped the accused as she reversed out of a parking spot.

The accused failed an approved screening device test and later approved instrument tests at the station.

The defence challenged the lawfulness of the detention under Charter sections 8 and 9, and raised issues regarding compliance with the two-hour requirement under section 258 of the Criminal Code.

The court found that the police had authority to detain and investigate the accused based on the specific information received and the common law ancillary powers doctrine.

The court also found that the Crown proved compliance with the two-hour requirement and that the officer had reasonable grounds for the approved instrument demand.

The accused was found guilty.

The applicant sought to vary the conditions of a peace bond imposed following a charge of indecent communication.

The peace bond prohibited contact with the complainant and attendance at her residence or place of employment.

The applicant requested permission to attend the Ontario Works office in Vaughan where the complainant was employed.

The court refused the application, noting that alternative Ontario Works offices were available in the applicant's area of residence and that permitting the variation would defeat the protective purpose of the peace bond.

The accused pleaded guilty to gross indecency relating to events from 1978 to 1987 and sexual assault relating to an offence that occurred from 2006 to 2009.

The offences involved the sexual abuse of two child complainants over extended periods.

The court imposed a sentence of 34 months imprisonment based on a joint submission, along with ancillary orders including lifetime sex offender registration, lifetime prohibition from contact with persons under 16, and lifetime firearms prohibition.

The appellant appealed his conviction for disobeying a stop sign contrary to section 136(1) of the Highway Traffic Act.

The appellant raised multiple grounds of appeal, including misapprehension of evidence, disregard of evidence, error in accepting the officer's identification of the vehicle, failure to play audio evidence from the in-car video, and that the verdict was unreasonable.

The trial court had accepted the officer's straightforward testimony that he observed the appellant's blue Hyundai Elantra drive through a stop sign without stopping, and found this evidence was supported by the in-car video.

The court reasonably explained the colour discrepancy between the officer's description and the video appearance.

The appeal was dismissed.

The accused pleaded guilty to impaired driving causing bodily harm after driving with a blood alcohol level more than double the legal limit, resulting in a vehicle rollover that caused serious injury to his passenger.

The Crown sought 12 to 18 months imprisonment with a 3-year driving prohibition, while the defence sought 90 days intermittent with a 4-year prohibition.

The court imposed 8 months imprisonment followed by 2 years probation and a 3-year driving prohibition, emphasizing the principles of general deterrence and denunciation while considering the accused's youth, lack of criminal record, genuine remorse, and rehabilitative efforts.

The appellant sought to extend time to appeal a guilty plea to disobeying a speed sign contrary to section 182(2) of the Highway Traffic Act, for which he received a $60 fine.

The appeal was filed over one year after the guilty plea was entered on November 14, 2014.

The appellant cited physical and mental health disabilities, including inflammatory bowel syndrome, as the reason for the delay.

The stated ground of appeal was that a police officer made a statement after the plea that caused the appellant to doubt his plea.

The court found no apparent merit to the applications or appeal and adjourned the matter to July 29, 2016, marked peremptory on the appellant to proceed.

The accused was convicted at trial of failing to comply with Sex Offender Information Registration Act (SOIRA) reporting requirements and a breach of Christopher's Law regarding provincial sex offender registry obligations.

The accused was bound by a 20-year SOIRA order from September 5, 2007, following conviction for sexual assault and possession of child pornography.

He failed to report two residential moves in the York Region between March and May 2015.

The Crown sought 45 days concurrent custody; the defence sought a suspended sentence with probation.

The court imposed 30 days custody to be served intermittently, finding that general and specific deterrence and public protection necessitated a custodial sentence despite the accused's seven-year compliance history.

The Crown applied without notice to adjourn a trial scheduled for the date of the hearing.

The accused was charged with Assault, Forcible Confinement, Failing to Comply with a Recognizance, and Mischief arising from an alleged altercation with his wife.

The Crown's primary reason for the adjournment was the lack of an available courtroom.

The complainant did not attend on the first day and was unable to remain on the second day due to childcare constraints.

The defence opposed the adjournment, citing restrictive bail conditions on the accused.

The court granted the adjournment, noting the systemic overbooking of trials in the jurisdiction and the practical impossibility of proceeding.

The court agreed to narrow the trial to one day instead of two and encouraged the Crown to consider amending restrictive bail conditions on consent.