Joseph F. Kenkel

This decision addresses a section 11(b) application concerning an alleged breach of the right to a trial within a reasonable time.

The court found that the Crown's adjournment application caused significant delay beyond the Jordan limit, primarily due to prioritizing another case and not giving this matter priority when rescheduled.

The defence was not responsible for delay, having taken all reasonable steps to expedite the proceedings.

The court held that the accused's Charter right was breached and ordered a stay of proceedings.

This sentencing decision addresses the conviction of Cengiz Ay for impaired operation of a motor vehicle and refusal to provide a breath sample.

The court considered aggravating factors including dangerous driving towards a residential home, structural damage, evacuation due to gas smell, and high intoxication.

Mitigating factors included the isolated nature of the incident, no prior record, and family support.

The judge imposed a global conditional sentence of 90 days (60 days for impaired operation and 30 days consecutive for refusal), house arrest with specific exceptions, a 24-month probation period with conditions including ignition interlock and counselling, and a 27-month driving prohibition.

The decision balances public safety, deterrence, and rehabilitation.

The Ontario Court of Justice dismissed all trafficking and conspiracy charges against Arvin Esguerra Cruz, finding the Crown's case rested primarily on his presence at the scene of drug transactions without direct evidence of participation.

Despite surveillance and circumstantial evidence linking Cruz to the vicinity of two drug transactions on July 26 and September 5, 2023, the court held that mere presence and timing were insufficient to infer guilt beyond speculation.

The Crown failed to establish that Cruz aided, abetted, or conspired in the offences, and no evidence linked him to the drugs, communications, or planning.

The decision underscores the evidentiary threshold required to move beyond "mere presence" in drug trafficking prosecutions.

The defendant, Anson Keung, was charged with firearms offences after a loaded handgun was found during a pat-down search following an arrest based on mistaken identity.

The defence brought a Charter application, arguing arbitrary detention (s. 9) and unlawful search (s. 8), seeking exclusion of the evidence under ss. 24(1) and 24(2).

The court found that the police's actions, including the investigative detention and pat-down search, were reasonable given the dynamic situation and concerns for officer safety, particularly due to the actual suspect's history with firearms.

The Charter application was dismissed, and the defendant was found guilty on all three charges.

Martha Leibowitz was charged with breaching an undertaking condition that prohibited her from having contact with her condominium's property manager except through email.

The incident occurred on November 3, 2023, when she entered the property manager's office.

The Crown presented video evidence and the property manager's testimony.

Despite the defendant's submission that there was no sound recording and that she had to attend in person due to unanswered emails, the court found the Crown proved the breach beyond a reasonable doubt, leading to a finding of guilt.

The defendant, Martha Leibowitz, was sentenced for breaching an undertaking not to contact her building's property manager.

This breach was aggravated by being committed while on release for a similar prior breach, occurring less than two weeks after release, and involving biased statements about the property manager's ethnic origin (s. 718.2(a)(i) Criminal Code).

Despite these aggravating factors and the significant impact on the complainant, the court granted a conditional discharge, balancing them against the defendant's lack of criminal record, age (71), and lifetime of good conduct.

She was placed on 12 months probation with conditions.

J.S. applied under section 519.1 of the Criminal Code for a variation of his house arrest bail to permit attendance at a college.

The application was dismissed.

The court noted that while a release order can be varied under section 519.1 with the consent of the accused, prosecutor, and surety, the judge retains discretion to approve or deny the variation.

Given the significant public safety concerns arising from the 15 alleged offences, including multiple sexual assaults and assault with choking, and the strict existing bail conditions, the proposed variation was deemed inconsistent with public safety.

The court found that such a substantial change required a full hearing with explanations and submissions, which was beyond the scope of the summary procedure provided by section 519.1.

This ruling addresses a defence application to prevent the Crown from calling evidence in response to two Charter applications due to the Crown's late or absent responses.

For the first application (ss. 8, 9, 10(b)), the court found the Crown's late response did not cause surprise and permitted evidence.

For the second 'overholding' application (ss. 7, 9), the Crown had not responded and sought to introduce new, undisclosed evidence.

The court ruled against delaying the case for new disclosure, allowing the Crown to respond only with previously known evidence and denying an adjournment for new evidence.

This criminal trial concerned a charge of having a blood alcohol level in excess of the legal limit ("80+").

The defence sought to exclude breath test readings, alleging breaches of sections 8 and 9 of the Canadian Charter of Rights and Freedoms.

The court addressed three main issues: whether police must delay an Approved Screening Device (ASD) test for 15 minutes, whether the officer had reasonable grounds for arrest and Approved Instrument (AI) demand given a lack of direct testimony about the ASD's working order, and an alleged cell toilet privacy breach.

The court found no requirement for a 15-minute delay and dismissed the privacy breach claim as inadvertent.

However, it found a Charter breach regarding the officer's failure to subjectively consider the objective reliability of the ASD.

Applying the R. v. Grant test for exclusion of evidence under s. 24(2), the court determined that despite the breach, its impact on the accused's Charter interests was nil, as the ASD was objectively proven reliable by other evidence.

Consequently, the admission of the breath test evidence would not bring the administration of justice into disrepute.

The application to exclude was dismissed, and a finding of guilt was entered.

The court rescinded a previously granted screen order for a complainant testifying virtually, finding it unnecessary given the virtual hearing format.

The ruling emphasized that the virtual setting inherently reduces direct confrontation concerns, and witnesses have personal options (like adjusting Zoom view or physically blocking the screen) if they prefer not to see the accused.

The defendant, Roydin Gerard Dias, pleaded guilty to multiple firearms and robbery-related charges, including possession of a weapon for a dangerous purpose, unauthorized possession of a firearm, vehicle occupancy with a shotgun, robbery with an imitation firearm, attempted robbery with a firearm, use of an imitation firearm, and disguise with intent.

The Crown sought a global sentence of 5 years, while the defence sought 3 years.

The court confirmed that a pharmacy incident, where nothing was taken but threats were made with a firearm, constituted robbery under section 343(c) of the Criminal Code, applying the definition of assault from section 265.

Aggravating factors included unsafe firearm storage, illegal possession purpose, dangerous flight from police, and the impact on victims and the community.

Mitigating factors included a guilty plea, genuine remorse, no prior criminal record, and difficult pre-trial detention conditions.

The court imposed a global sentence of 4.5 years (54 months), with credit for 21.5 months of pre-trial custody, leaving 32 months to serve concurrently for all charges.

Additional orders included a DNA order, a lifetime firearms prohibition, and forfeiture of weapons.

This ruling addresses an application by the defendant, Marquis Clark, for a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms, alleging a breach of his section 11(b) right to a trial within a reasonable time.

The total delay from the information being sworn to the scheduled end of the second trial was 789 days, exceeding the presumptive ceiling set in R. v. Jordan.

The court analyzed the delay, deducting 195 days conceded by the defence and an additional 90 days attributed to the systemic effects of the COVID-19 pandemic, as per the estimate in R. v. Korovchenko.

After deductions, the net delay of 504 days fell below the Jordan ceiling.

The court also considered the mistrial, finding it was due to an inadvertent disclosure mistake that was quickly remedied, and subsequent delays were largely due to defence counsel's schedules.

The application for a stay of proceedings was dismissed.

This criminal trial concerned two counts of sexual assault and two counts of gross indecency against the accused, Steven Wolfer, involving a complainant who was 10-12 years old at the time of the alleged incidents in the mid-1980s.

The complainant testified about two separate incidents of manual fondling: one during a babysitting occasion and another during a sleepover at the accused's home.

The accused denied all allegations.

While the court found the complainant to be a credible witness and believed his account, it identified several frailties in the evidence, particularly regarding the sleepover incident, such as the unlikelihood of parental approval for the sleepover and the presence of other adults.

Despite the complainant's persuasive testimony, the court concluded that the Crown failed to prove the allegations beyond a reasonable doubt, leading to the dismissal of all charges.

The accused, Tsung Ong, was charged with two counts of sexual assault.

The first count was dismissed by Crown concession.

The second count, arising from an incident at the accused's birthday party, involved the complainant alleging the accused sexually assaulted her by pressing his face into her crotch area.

The central issue was witness credibility and the Crown's burden of proof.

The court found the complainant's testimony emotionally difficult but credible, yet noted inconsistencies and lack of detail regarding the alleged incident's mechanics and surrounding events.

The defence witnesses' evidence, while not ruling out the incident, supported the accused's general practice.

Ultimately, the court found that while the accused's testimony could not be accepted as true to the exclusion of other evidence, a reasonable doubt remained regarding the reliability of the complainant's account.

Consequently, the second count was also dismissed.

This criminal trial concerned charges of impaired operation and "80+" following a single-vehicle collision.

The central issue was the identification of the driver.

The Crown presented direct and circumstantial evidence, including testimony from a neutral witness who observed the male defendant exiting the driver's seat immediately after the crash.

The defendant's testimony was deemed unreliable due to intoxication, and his wife's testimony was found not credible as it contradicted other evidence.

The court concluded that the Crown proved beyond a reasonable doubt that the defendant was the driver.

The Crown applied under s 486.2(2) of the Criminal Code for an order permitting the complainant to testify from behind a one-way screen in a domestic violence case.

The complainant expressed fear of testifying while seeing the accused.

The defence opposed, arguing for face-to-face confrontation and questioning the genuineness of the fear, noting prior family court appearances.

The court granted the application, finding that the screen would facilitate a full and candid account by the witness without impairing the accused's right to cross-examination, especially given the nature of the domestic violence allegations.

The Crown applied under s 117.05(4) of the Criminal Code for forfeiture of a seized firearm and a three-year prohibition order against the respondent, who failed to appear despite notice.

The court proceeded ex parte.

Based on evidence of the respondent's suicidal ideations and apprehension under the Mental Health Act, the court found it undesirable for the respondent to possess the firearm for his and his ex-girlfriend's safety.

The firearm was ordered forfeit.

While the Crown sought a three-year prohibition, the court granted a two-year prohibition, finding it sufficient given the circumstances and time passed.

This endorsement addresses the collapse of a scheduled two-day criminal trial due to the defendant's last-minute guilty plea, without prior notice to the court or Crown.

The court highlights this as an example of ongoing case management challenges in high-volume provincial courts, despite new procedures like Trial Confirmation Court.

The decision emphasizes that such occurrences lead to inefficient use of precious trial time, causing delays for other matters, and stresses the shared responsibility of all parties, including counsel, in ensuring the efficient administration of justice.

This sentencing decision concerns Justin Barrett, who pleaded guilty to procuring a 16-year-old girl for sexual services.

The court considered the aggravating factors, including the planned and deliberate nature of the offence, its duration, breach of trust, the victim's vulnerability, and the profound impact on her and her family.

Mitigating factors included the guilty plea, positive antecedents, employment on bail, and family support.

The court rejected the defence's request for a conditional or reformatory sentence, emphasizing general deterrence and denunciation.

Barrett was sentenced to 4 years imprisonment, a DNA order, and a 20-year SOIRA order.

The defendant was charged with failing to provide a suitable breath sample for an Approved Screening Device (ASD) demand after being found asleep in his vehicle.

The Crown and defence disputed the reasonable suspicion for the ASD demand and the mens rea standard for the offence.

The court found that the officer's ASD demand was within the 'forthwith window'.

However, the central issue was whether the Crown proved the failure to provide a suitable sample beyond a reasonable doubt.

Due to insufficient and inaccurate details provided by the administering officer regarding the multiple failed tests, the court found a reasonable doubt remained and dismissed the charge.