Joseph F. Kenkel

The accused was charged with assault and brought a Charter s. 11(b) application alleging unreasonable delay.

The trial commenced in November 2015 but required multiple adjournments, with trial dates scheduled for November 27, 2015, February 3, 2016, June 10, 2016 (for the s. 11(b) application), and July 19-20, 2016.

The court analyzed the delay from the swearing of the Information, distinguishing between neutral intake time, inherent time for Crown preparation, and institutional delay.

The court found total institutional delay of approximately 5 months and 8 days, which was well below the guidelines established in R v Morin.

The application was dismissed.

The accused was charged with failing to comply with a Sex Offender Information Registration Act (SOIRA) reporting requirement contrary to section 490.031(1) of the Criminal Code.

The accused, a sex offender bound by a 20-year SOIRA order, failed to report a change of address to the designated registration centre within the required seven-day period after moving from Toronto to Markham in York Region.

The Crown proved the mens rea element of the offence, establishing that the accused intentionally failed to report rather than merely acting carelessly.

The accused's defence of reasonable excuse—that he believed the SOIRA system would be automatically updated through his bail conditions—was rejected as neither credible nor legally sound.

The court found the accused guilty beyond a reasonable doubt.

The accused was charged with Fraud Over $5,000 contrary to s. 380(1)(a) of the Criminal Code.

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

The accused was arrested and charged on December 14, 2014, with trial scheduled to commence July 19, 2016, representing a total delay of 584 days.

The court analyzed the delay using the framework established in R. v. Morin, categorizing periods as intake time, inherent time, Crown delay, and institutional delay.

The court found that Crown and institutional delay totaled only 55 days, with the remainder attributable to necessary case management, disclosure, translation, and trial preparation.

The court concluded the delay was reasonable and dismissed the application.

The accused was charged with operation of a motor vehicle with a blood alcohol level over 80 mgs/100ml of blood following a traffic stop for speeding.

The Crown alleged the accused had a blood alcohol level of 210 mgs/100ml based on approved instrument tests at the station.

The defence challenged the lawfulness of the approved screening device demand, the delay in making the demand, the validity of the ASD test, and the adequacy of the right to counsel advice.

The court found no Charter breaches and convicted the accused on the evidence.

The accused pleaded guilty to eleven offences involving child sexual abuse, child pornography, and conspiracy charges.

The Crown sought a Long Term Offender (LTO) designation with a sentence of 4-6 years and a Long Term Supervision Order (LTSO) for 10 years.

The defence argued for 4 years less credit for pre-trial custody and a 2-year LTSO.

The court found the accused to be a Long Term Offender and imposed a global sentence of 4 years 6 months (8 months remaining after pre-trial custody credit) followed by a 6-year LTSO.

The court emphasized the gravity of the offences, the accused's active participation in planning and facilitating child sexual abuse, and the need for public protection and rehabilitation.

The accused pleaded guilty to 11 charges involving child pornography, sexual offences against children, bestiality, and conspiracy charges.

The Crown sought a Long Term Offender (LTO) designation with a sentence of 4 to 6 years and a 10-year supervision order.

The defence sought a sentence of 2 years less 1 day with probation.

The court found the accused met all three LTO criteria and imposed a global sentence of 3 years imprisonment, with credit for pre-trial custody resulting in 193 days to be served, followed by a 4-year Long Term Supervision Order.

The court emphasized that the accused's offences, committed in furtherance of an abusive relationship with an older male, involved serious crimes against children and required significant denunciation and deterrence.

The accused was convicted of sexual assault after having sexual intercourse with a complainant who was extremely intoxicated and incapable of consent.

The accused failed to take any steps to ascertain consent and the complainant was unaware of the sexual contact until the accused informed her two days later.

The Crown sought a sentence of 2 years less 1 day, while the defence sought 6 months less 1 day, citing potential immigration consequences.

The court imposed an 18-month custodial sentence followed by 2 years of probation, finding that while the offence was opportunistic rather than planned, it required a sentence in the upper reformatory range to address specific and general deterrence and denunciation.

The applicant sought to vary a section 110 prohibition order and probation order to permit recreational hunting using cross-bows and compound bows.

The court found it lacked jurisdiction to vary the section 110 order for recreational hunting purposes, as section 113 of the Criminal Code only permits variations for employment or sustenance hunting.

However, the court had jurisdiction to vary the probation order and granted a limited variation to the "no weapons" term to permit compound bows for hunting purposes only, finding this would not endanger public safety.

The accused pleaded guilty to four counts relating to child sexual exploitation: attempt to live on the avails of a person under 18, exercise control, procuring, and child luring.

The accused, along with two co-accused, lured three young girls aged 14 and 15 into prostitution at the Scarborough Town Centre.

The Crown sought 5 years imprisonment less pre-trial custody credit, while the defence sought 4 years.

The court imposed a global sentence of 4 years, finding this to be the minimum necessary to meet sentencing principles.

The court credited 1,157 days of pre-trial custody at the 1.5:1 ratio, resulting in 303 days remaining to be served, followed by 2 years probation and a 10-year s.161 order.

The accused was charged with impaired driving following a RIDE spot check.

The defence challenged the admissibility of breath test evidence on Charter grounds, alleging breaches of sections 7, 8, 9, and 10.

The three issues at trial were: (1) whether the right to counsel was breached when the accused initially expressed a desire to speak to a lawyer but later declined; (2) whether breath tests were taken "as soon as practicable" as required by section 258(1)(c)(ii); and (3) whether any breaches warranted exclusion of evidence under section 24(2).

The court found no Charter breaches and convicted the accused.

The accused pleaded guilty to attempting to live on avails, exercising control, and procuring minors for prostitution.

Three girls aged 14-15 were recruited at a shopping mall and exploited in a prostitution scheme.

The Crown sought four years imprisonment; the defence sought three to three-and-a-half years.

The court imposed a four-year sentence, finding it the minimum necessary to meet sentencing principles of denunciation and deterrence given the serious harm to the young victims and the cruel exploitation involved.

The accused was charged with assault and disobeying a court order (non-communication bail condition) in relation to a domestic incident.

At the close of the Crown's case, the defence applied for a directed verdict (non-suit) on the breach charge.

The court considered six issues: admissibility of the original Information as evidence; whether documentary evidence of a bail order constitutes proof of the accused's knowledge; whether a voice mail message constitutes "communication" under the bail condition; whether the Crown proved the accused made the call; whether the message necessarily breached the order given other residents in the home; and whether the Crown proved the timing of the breach.

The court dismissed the defence application, finding sufficient evidence for a properly instructed trier of fact to find guilt on the breach count.

The accused brought a recusal application during the second day of trial on an assault charge, alleging that the trial judge had previously heard a guilty plea from the accused on a related offence approximately four and a half years earlier.

The defence argued that a judge who has heard a plea cannot preside over a subsequent trial involving the same accused and requested that the judge recuse himself and declare a mistrial.

The court dismissed the application, finding that the accused failed to establish a reasonable apprehension of bias based on the prior judicial dealings.

The accused was charged with three counts of sexual assault, three counts of sexual interference with a person under 14, and one count of invitation to sexual touching with a person under 16.

The defence sought to cross-examine a police officer at the preliminary hearing regarding redacted emails between York Regional Police and the Crown's office, claiming solicitor-client privilege.

The defence argued that if privilege was asserted, the court could review the redacted materials to determine whether privilege actually applied.

The court dismissed the application, holding that disclosure and privilege disputes are not within the jurisdiction of a preliminary hearing court and that the defence was attempting indirectly to circumvent disclosure rules that are reserved for the trial court.

The accused was charged with sexual assault following an incident at a women's basketball tournament in Toronto.

The complainant alleged that after heavy drinking and blacking out, the accused had sexual intercourse with her without consent.

The accused admitted to intercourse but claimed it was consensual, asserting the complainant initiated and insisted on sexual activity.

The central issues were consent and the complainant's capacity to consent.

The court found the accused's testimony regarding the circumstances of the sexual activity not credible, particularly his account of aggressive sexual advances by the complainant on a hotel balcony and in the bedroom.

The court determined that the complainant was extremely intoxicated, had blacked out, and lacked capacity to consent.

The accused knew of her extreme intoxication but took no steps to ascertain consent.

The court convicted the accused of sexual assault.

The respondent was charged with speeding 104 km/h in a 60 km/h zone contrary to s. 128 of the Highway Traffic Act.

At trial, the respondent entered a guilty plea to the lesser charge of disobeying a sign contrary to s. 182(2) of the Highway Traffic Act.

The Crown and defence jointly submitted for a $100 fine.

The trial judge rejected the joint submission and imposed an $85 fine instead, citing concerns about inconsistent sentencing submissions by prosecutors in the region.

The trial judge also made adverse comments toward the Crown prosecutor when he attempted to cite binding provincial offence appeal authority.

The Regional Municipality of York appealed.

The accused was charged with Dangerous Driving and Driving while Over 80mgs following a high-speed flight from police and a failed Approved Screening Device test.

The Crown proved dangerous driving based on the accused's objectively dangerous conduct during the pursuit, which constituted a marked departure from the standard of care a reasonable driver would observe.

The defence raised Charter breaches regarding delayed right to counsel advice and the breath demand due to language difficulties.

The court found no Charter breaches, as the officer acted appropriately in obtaining translation assistance when language barriers were identified, and the right to counsel advice was provided without delay in the circumstances.

The accused was found guilty on both counts.

The appellant was convicted of parking in a designated handicapped parking space without a permit in violation of City of Markham Bylaw 2005-188, Section 11(1).

On appeal, the appellant challenged the conviction on two grounds: first, that the sign at the location did not display the bylaw number, and second, that there was no evidence of a painted handicapped sign on the pavement.

The court upheld the conviction, finding that neither the bylaw nor the applicable regulation required the bylaw number to be displayed on the sign or a painted sign on the pavement.

The appeal as to conviction was dismissed, but the appeal as to sentence was allowed on consent and the sentence was varied to the minimum fine of $300 plus costs.

The appellant municipality appealed a sentence imposed by a Justice of the Peace who reduced a statutory minimum fine of $200 for failing to stop at a red light to $100.

The Justice of the Peace had announced in advance that she would never impose the statutory minimum fine and made comments suggesting bias against the prosecution.

The appellate court found that the Justice of the Peace erred by disregarding the statutory minimum penalty without evidence of exceptional circumstances or undue hardship justifying relief under section 59(2) of the Provincial Offences Act.

The appeal was allowed and the sentence was varied to the statutory minimum of $200 plus costs.

The appellant appealed his conviction for driving while using a hand-held communication device contrary to section 78.1 of the Highway Traffic Act.

The appeal was based on ineffective assistance of counsel, specifically that the paralegal agent conducted the trial in the appellant's absence despite him being present in the building, thereby depriving him of his right to be present at trial.

The court found that the agent's conduct constituted a miscarriage of justice and ordered a new trial before a different Justice of the Peace.