Joseph F. Kenkel

The accused was found unconscious in a running vehicle on a snowbank, exhibiting signs of severe intoxication.

Charged with impaired operation and operating over 80 mg%, the defence argued a Charter s. 10(b) breach, claiming the accused's waiver of the right to counsel was not informed or unequivocal due to his condition, and challenged the impairment evidence.

The court found the accused's testimony lacked credibility and reliability.

It held that the police fulfilled their duty to inform the accused of his right to counsel, and his repeated declinations were unambiguous, not triggering a further duty to inquire despite his intoxication.

The court concluded that the Crown proved impairment beyond a reasonable doubt, finding the accused's physical and mental faculties were completely impaired by alcohol.

The Charter application was dismissed, and findings of guilt were entered for both counts, with the over 80 mg% count stayed under the rule against multiple convictions.

This is a youth sentencing decision for a young person, R.R., who pleaded guilty to aggravated assault and robbery while using a firearm.

The offences involved two carjackings, the abduction and shooting of one victim, and the brandishing of a firearm in a second incident.

The court considered significant aggravating factors, including the gravity of the offences, R.R.'s prior youth record involving firearms, and his being on probation and a firearms prohibition at the time.

Mitigating factors included the guilty plea, pre-trial custody (441 days, including during the COVID-19 pandemic), educational courses taken in detention, strong family support, and expressed remorse.

The court addressed the issue of enhanced credit for pre-trial custody in the youth context, noting differences from adult sentencing.

The judge emphasized specific deterrence and public protection, finding that R.R. posed a high risk to public safety despite family support.

A further custodial sentence was deemed necessary for rehabilitation and reintegration.

The appellant, Igor Iagolnik, appealed a speeding conviction under the Highway Traffic Act, arguing the Justice of the Peace erred by refusing an adjournment when the prosecution used certified statements and that the evidence was insufficient.

The court dismissed the appeal, affirming that certified statements under s. 48.1 of the Provincial Offences Act are admissible and sufficient proof in the absence of evidence to the contrary.

The court also clarified that pre-conditions for speed measurement evidence admissibility are no longer required for established technologies like RADAR/LIDAR, and speculation does not constitute evidence to the contrary.

The Regional Municipality of York appealed the dismissal of a speeding charge against the respondent, which was originally dismissed by a Justice of the Peace who found the certified statement evidence insufficient due to "unanswered questions" regarding the speed measurement device.

The appeal court found that the Justice of the Peace erred by relying on speculation rather than inferences reasonably arising from the evidence.

As the certified statements were deemed proof of facts in the absence of evidence to the contrary under the Provincial Offences Act, and no such contrary evidence was presented, the appeal was allowed.

The accused was convicted of sexually assaulting his estranged wife while intoxicated.

The assault occurred over a 60-90 minute period while the victim was in bed with their child.

The Crown sought a 12-month jail sentence, while the defence requested a conditional sentence.

The court considered the aggravating factors of intimate partner violence and breach of trust, alongside mitigating factors including the accused's lack of a criminal record, compliance with release conditions, and the victim's request that he not be jailed.

The court imposed a 12-month conditional sentence followed by 12 months of probation.

During a sentencing hearing for sexual assault, the defence objected to the admissibility of a Victim Impact Statement because it was not in the prescribed statutory form (Form 34.2) and argued that its first four paragraphs were irrelevant.

The court noted that s. 722(4) of the Criminal Code requires the statutory form, but admitted the statement on consent after the Crown offered to resubmit it properly.

The court also ruled that the first four paragraphs were admissible to provide context to the victim's circumstances, noting it would disregard any irrelevant portions pursuant to s. 722(8).

Giuseppe Agostino pleaded guilty to 10 charges across four informations, including multiple counts of break and enter, theft, fraud, mischief, and failure to comply with bail and probation orders.

He was released on bail with the understanding he would attend residential drug treatment, but failed to complete the program and committed further offences.

The Crown sought a further 6 months of jail time in addition to 69 days pre-trial custody.

The court considered aggravating factors, primarily the extensive criminal record, and mitigating factors, including the guilty plea and pre-trial custody during the COVID-19 pandemic.

The judge found that a conditional sentence was not appropriate due to public safety concerns and the accused's failure to comply with prior orders.

A further custodial period of 90 days was imposed, consecutive to any sentence being served, along with 18 months of probation with specific conditions aimed at addressing his opiate addiction and preventing further offences.

The accused, I.F.L., was charged with sexual assault on his wife.

The complainant testified that the accused, while intoxicated, sexually assaulted her in their guest room, an incident corroborated by her mother.

The defence argued fabrication due to ongoing family law disputes and highlighted inconsistencies and a 13-month delay in reporting.

The court applied the R. v. W.D. framework for credibility, finding the accused's testimony not credible or truthful, and accepting the complainant's and her mother's evidence as credible and reliable despite minor inconsistencies and the delayed report.

The court found the Crown proved the charge beyond a reasonable doubt, resulting in a finding of guilt.

P.V.T. was convicted of sexual assault on his wife and uttering death threats.

The court considered aggravating factors, including the abuse of authority, the victim's vulnerability, repeated incidents, and significant impact on the victim, balanced against mitigating factors such as no prior criminal record and health issues.

The court emphasized general and specific deterrence, finding that the sexual assault stemmed from a generalized attitude towards women.

A global sentence of 4 years and 6 months imprisonment was imposed, with 4 years for sexual assault and 6 months consecutive for uttering threats.

Mandatory orders for DNA registration, a 10-year firearms prohibition, and a 20-year Sex Offender Information Registration Act (SOIRA) order were also made, along with a no-contact order with the victim during the custodial period.

The defence objected to a Crown question during cross-examination concerning text messages between the complainant and the accused, arguing non-disclosure, prior Crown indication not to adduce the texts, and case splitting.

The Crown contended the texts were known to the defence and became relevant to rebut an allegation of recent fabrication after the accused's testimony.

The court ruled that the Crown had not split its case, as the evidence was not admissible in chief but became relevant to address the specific nature of the defence, which was an outright denial.

The defence's objection was dismissed, allowing the Crown to question the accused about the text messages.

The accused was charged with impaired operation (care or control) after being found in the driver's seat of her vehicle with the engine running and elevated blood alcohol readings.

The defence rebutted the presumption of operation by establishing that the accused had a concrete plan not to drive, supported by the credible testimony of a sober passenger who had arranged for a ride.

The court found that the Crown failed to prove a realistic risk of danger beyond a reasonable doubt, leading to an acquittal.

The appellant, Ravid Dahan-Motek, appealed her conviction for driving with a handheld communication device.

Her grounds of appeal included claims that the Justice of the Peace (JP) misapprehended her evidence regarding not making a phone call and not touching her phone, and alleged bias on the part of the JP.

The appellate court reviewed the trial transcript and reasons for judgment, finding no evidence of bias and confirming that the JP's findings were supported by the evidence.

The court clarified that the JP did not accept the appellant's claim of not touching the phone, despite accepting she wasn't making a call.

The appeal was dismissed.

Isabelle Rodriguez appealed a victim fine surcharge imposed after she pleaded guilty to speeding, arguing there were no "victims." Her refusal to pay the surcharge led to a driver's license suspension and subsequent reinstatement costs.

The court dismissed the appeal, ruling that it lacked jurisdiction to strike the victim fine surcharge, as it is an administrative procedure under Ontario Regulation 161/00 of the Provincial Offences Act, automatically applied to all provincial offence fines to support victim services generally.

The appellant, Ji-Hoon Kim, appealed a speeding conviction after paying the fine, arguing it was a mistake due to its impact on his insurance rates.

The court dismissed the appeal, holding that insurance consequences are not legally relevant collateral consequences that would invalidate a guilty plea.

The court affirmed that drivers are responsible for inquiring about administrative and insurance impacts of convictions before pleading guilty, and a failure to do so does not render a plea equivocal, uninformed, or involuntary.

The appellant, Wing Cheung, appealed his conviction for driving while holding or using a hand-held device, seeking to strike his guilty plea.

He argued that the prosecutor failed to provide advice and the court did not conduct a plea inquiry, particularly regarding potential insurance consequences.

The court found that prosecutors are not obligated to provide legal advice or inform about private collateral consequences like insurance.

The plea was voluntary and unequivocal, and the failure to conduct a s. 45 Provincial Offences Act inquiry does not invalidate the plea.

The appeal was dismissed.

The appellant, Orlando Tassone, appealed his convictions for stunt driving and using improper tires under the Highway Traffic Act, alleging ineffective assistance from his paralegal who he claimed prevented him from testifying.

He sought a new trial or, alternatively, a sentence reduction.

The court found that the appellant failed to prove ineffective assistance, noting his unreliable memory and the paralegal's thorough preparation and tactical decision not to call him as a witness, which the appellant had accepted.

The court also dismissed the sentence appeal, finding the original fine appropriate given the circumstances.

The defendant, Aaron Lee, pleaded guilty to attempted robbery, dangerous operation of a motor vehicle, and driving while prohibited.

The offences involved driving a stolen car dangerously, causing a multi-car collision, and then attempting to steal another vehicle.

The court considered aggravating factors, including a lengthy criminal record, being on release and probation at the time of the offences, and the presence of dangerous drugs in his system.

Mitigating factors included his guilty plea, expression of remorse, difficult background (including potential Gladue factors), and the challenging conditions of incarceration during the COVID-19 pandemic.

The court imposed a global custodial sentence of 18 months, applying a 2-month "Duncan credit" for COVID-19 conditions and a 6-month "Summers credit" for pre-trial custody, resulting in 12 months remaining to be served.

Additional orders included a 2-year probation, a DNA order, a lifetime firearms prohibition, and a 10-year driving prohibition.

This is a sentencing decision by the Ontario Court of Justice for Erhard Haniffa, convicted of communicating with a person believed to be under 16 for the purpose of facilitating a sexual offence (s. 172.1(2) Criminal Code).

The matter was remitted by the Court of Appeal for sentencing on this specific count.

The Crown sought a custodial term of 2 years less 1 day, while the defence argued for a conditional sentence.

The court, acknowledging its limited jurisdiction to count 2, imposed an 18-month conditional sentence.

The decision considered the impact of R v Friesen on sentencing principles for child sexual offences, recent legal changes regarding mandatory minimums and conditional sentence restrictions, the offender's changed personal circumstances, and the ongoing COVID-19 pandemic's effect on correctional facilities.

The court balanced denunciation and general deterrence with the principle of imposing the least restrictive sentence.

Jabir Khan was convicted of possession of a restricted firearm and occupation of a motor vehicle knowing it contained an unregistered restricted firearm.

The offences involved a sawed-off shotgun with ammunition, which Khan took as a favour for a friend.

The Crown sought a 4-year sentence, while the defence proposed 2.5 years, potentially as a conditional sentence.

The court considered aggravating factors, including Khan's lengthy criminal record, multiple lifetime firearms prohibitions, and the dangerous nature of the weapon.

Mitigating factors included 26 months of house arrest bail, pre-trial custody credit, significant gaps in his criminal record, current employment, and expressed remorse.

The court imposed a global sentence of 3 years, resulting in 2 years and 323 days remaining to be served after credit for pre-trial custody.

A concurrent 12-month sentence was imposed for the vehicle offence.

Ancillary orders included a lifetime firearms prohibition, a DNA order, and a no-contact order with the co-accused while in custody.

The accused, Hamidkhan Pathan, was charged with impaired operation and operating a vehicle with a blood alcohol concentration over the legal limit.

He conceded impairment and BAC but denied operating the vehicle.

The court assessed the credibility of the Crown's witnesses (a 911 caller and a police officer) and found them credible and reliable.

The accused's testimony was rejected due to intoxication, inconsistencies with external evidence, and illogical claims.

The court found the Crown proved beyond a reasonable doubt that the accused operated the vehicle as alleged, leading to a conviction.