Joseph F. Kenkel

The accused was charged with impaired driving and having a blood alcohol concentration over 80 mg%.

The court addressed three issues: reasonable grounds for arrest and breath demand, violation of the right to counsel, and proof of impaired operation.

The court found ample reasonable grounds for the arrest and demand, and that no Charter breach under sections 8 or 9 occurred.

Regarding the right to counsel, the court found the accused failed to prove a section 10(b) Charter breach due to insufficient evidence from a poor video recording.

Ultimately, the Crown proved impaired operation beyond a reasonable doubt based on erratic driving, physical signs of intoxication, and the officer's credible observations.

The accused was found guilty on both counts, with a Kienapple stay to be determined.

The Crown applied under s. 714.1 of the Criminal Code for an order permitting the complainant in a sexual assault and uttering threats trial to testify remotely via videoconference.

The complainant resided in British Columbia, was pregnant with health issues, and concerned about COVID-19 travel.

The defence conceded the s. 714.1 criteria were met but objected, arguing that remote testimony should only be allowed in exceptional circumstances when credibility is at issue, and that cross-examination with documents/video might be difficult.

The court granted the application, rejecting the "exceptional and compelling circumstances" test for credibility, noting Parliament's amendments to s. 714.1 and courts' extensive experience with virtual testimony.

The court also addressed the practical concerns regarding evidence presentation.

This case concerns a youth charged with aggravated assault, where the sole issue at trial was the identification of the accused.

The Crown relied on a witness who identified the accused based on prior acquaintance and observations during the unprovoked attack involving multiple assailants and weapons.

The court, while finding the witness truthful, determined that the objective facts, including the use of masks and limited familiarity, did not sufficiently prove the reliability of the identification beyond a reasonable doubt.

Consequently, the charge was dismissed.

The accused was found guilty of impaired operation and exceeding the legal blood alcohol limit after a vehicle collision.

The court addressed three main issues: whether the Crown proved operation, whether the accused's statements to police were voluntary, and whether the accused's right to counsel under s. 10(b) of the Charter was violated.

The court found no s. 10(b) breach, determined the statements were voluntary, and concluded that operation was proven beyond a reasonable doubt based on both the accused's admission and strong circumstantial evidence.

The accused, Anibal Silva, brought an application under s. 11(b) of the Charter, alleging that the almost 25-month delay in his criminal proceedings for impaired operation, 80+, and failing to stop for police breached his right to a trial within a reasonable time.

The Crown argued that after deducting defence and COVID-related delays, the net delay was below the presumptive ceiling.

The court found that the total delay exceeded the presumptive ceiling, attributing it to multiple failures including police non-disclosure, and a "culture of complacency" by all parties and the court in actively managing the case.

The court determined that COVID-19 did not cause any additional delay in this specific case as the outstanding disclosure could have been remedied during that period.

The application was granted, and the proceedings were stayed.

The defendant, E.T., was convicted of criminal harassment under s. 264 of the Criminal Code following relentless contact with the victim after their relationship ended.

The court considered the victim's impact statement, emphasizing denunciation and deterrence as primary sentencing principles, with the domestic context being an aggravating factor.

While acknowledging the defendant's rehabilitative efforts and lack of prior record, the court determined that a conditional discharge was disproportionate.

A custodial sentence was within range, but considering the defendant's rehabilitation and the COVID-19 pandemic, the court imposed a fine and probation as the least restrictive sentence to address all factors.

The defendants, Jamal and Jamis Yusuf, sought to reopen their trial after conviction for assault causing bodily harm and forcible confinement, and subsequent appeals to the Court of Appeal and Supreme Court of Canada.

The application was based on a new affidavit from co-accused Aziz Pauls, who did not testify at trial.

The court dismissed the application, finding that the proposed evidence failed to meet the credibility and impact requirements of the test for reopening a trial after conviction, particularly given the strong video evidence and prior judicial findings.

This judgment addresses the criminal responsibility of the accused, V.F.-P., for six counts of Arson Endangering Life under section 433 of the Criminal Code.

The sole issue at trial was whether the defence proved on a balance of probabilities that the accused was suffering from a mental disorder at the time of the offences, rendering her exempt from criminal responsibility under section 16(3) of the Criminal Code.

The court considered evidence of erratic behaviour, apparent intoxication (despite zero blood alcohol readings in prior similar incidents), and a history of mental health issues including suicide attempts and a diagnosis of Bipolar Mood Disorder.

Applying the holistic approach from R. v. Bouchard-Lebrun, the court found that the accused's actions stemmed from an underlying mental disorder, not transient self-induced states, and that her condition presented a recurring danger.

Consequently, the accused was found not criminally responsible.

The accused, Ramsey Safieh, was charged with dangerous operation of a conveyance, failing to comply with probation, and operating a conveyance while prohibited, following a hit-and-run incident.

The sole issue at trial was the identification of the driver.

The court found that the Crown had not proved the identification of the driver beyond a reasonable doubt, despite the officers' credible testimony, due to factors such as brief viewing time in darkness, lack of detailed description, and absence of pre-trial identification procedures.

The circumstantial evidence, including the accused's past address and flight, was found to add little to the Crown's case.

Consequently, all charges were dismissed.

Dwayne Counsell, an accused in a multi-accused preliminary hearing, applied under s. 715.23(3) of the Criminal Code to cease attending by videoconference and attend in person.

The court denied the application, finding jurisdiction to compel remote attendance without consent, especially given the COVID-19 pandemic.

The court emphasized public health risks associated with in-person attendance and the functionality of the virtual platform, concluding that the accused's preference for in-person attendance did not outweigh the serious health risks.

The Crown applied for an order permitting three designated undercover officers to testify remotely while wearing partial face masks during a preliminary hearing.

The Crown argued this was necessary due to the security risk posed by the ease of digital image capture in Zoom hearings, which could compromise the officers' anonymity and future undercover work in investigations involving criminal organizations.

Two defendants opposed, arguing existing protections were sufficient and that masks could hinder credibility assessment.

The court granted the Crown's application, finding the identified security risk was real and that the proposed measure balanced witness safety with the defendants' rights, noting that facial demeanor is of little value in preliminary hearings and that in-person witnesses during the pandemic often wear masks.

This criminal trial concerned a charge of criminal harassment against the accused, E.T. The complainant, after ending a brief relationship with E.T. due to his controlling and aggressive nature, received over 180 unwanted phone calls and 60 text messages from him, including calls to her workplace, causing her significant distress and fear.

The central issue was whether the complainant's subjective fear for her safety was objectively reasonable.

The court found the complainant to be a credible witness and concluded that the accused's relentless and unwanted contact constituted harassment.

The court determined that the complainant's fear for her safety, encompassing psychological and emotional security, was objectively reasonable given the accused's past behaviour, controlling nature, and persistent contact despite explicit requests to cease.

The Crown successfully proved the charge beyond a reasonable doubt.

The accused was tried on two counts of sexual assault involving his niece in a shared family household.

The central issue was whether the complainant's evidence, though accepted as sincere and forthright, established the charges beyond a reasonable doubt in light of reliability concerns, the physical context of the alleged incidents, uncertainty surrounding deleted app messages, and the accused's police statement and apology letter.

The court held this was not a repressed-memory case, but found the surrounding circumstances and internal inconsistencies left a reasonable doubt on both counts.

Both charges were dismissed.

The accused, Jabir Khan, was charged with possession of a restricted firearm and occupation of a motor vehicle knowing it contained an unregistered restricted firearm.

The central issue was whether the Crown proved the knowledge component of the possession counts.

The accused testified he believed the duffel bag he received contained cocaine, not a firearm.

The court found the accused's testimony not credible, citing inconsistencies with the size of the bag, the implausibility of the false story, and detailed knowledge revealed in wiretap conversations, including the involvement of Nelson's girlfriend in transferring the firearm.

The lack of effort to disguise the firearm also indicated the accused's knowledge.

The court concluded that the accused knowingly accepted the transfer of the sawed-off shotgun and ammunition.

The accused was charged with operating a conveyance with a blood alcohol concentration exceeding the legal limit.

The defence sought to exclude breath test evidence, alleging breaches of sections 8, 9, and 10(b) of the Charter.

Specifically, the defence argued that the Approved Screening Device (ASD) demand was not made immediately, the officer lacked reasonable grounds for the Approved Instrument demand due to uncertainty regarding mouth alcohol, and right to counsel advice was not provided immediately upon arrest.

The court found that a brief delay in the ASD demand for officer safety was reasonable and did not constitute a Charter breach.

It also found no issue with the officer's grounds for the Approved Instrument demand despite a misunderstanding about mouth alcohol detection.

While a section 10(b) breach was found due to a five-minute delay in providing right to counsel advice, the court determined that this breach was not serious and had no impact on the accused's Charter rights, thus declining to exclude the evidence under section 24(2) of the Charter.

Consequently, the accused was found guilty.

The defendant challenged the lawfulness of his arrest and the search of his vehicle under sections 8 and 9 of the Canadian Charter of Rights and Freedoms.

The Crown sought to establish that police had reasonable grounds to arrest the defendant based on evidence from a wiretap investigation into a jewelry store robbery.

The defendant argued that certain information was inadmissible and that the remaining evidence was insufficient to establish reasonable grounds.

The court found that the admissible evidence, including wiretap intercepts discussing the movement of a firearm, observations of a meeting between the defendant's vehicle and a suspect, and subsequent communications, provided a sufficient objective basis for the arrest and search.

The accused was charged with impaired operation and having a blood alcohol level above the legal limit.

A citizen called 911 reporting dangerous driving, and police observed the vehicle swerving between lanes, nearly striking a parked bus.

Upon stopping the vehicle, the officer detected a strong odour of alcohol and observed signs of impairment.

The defence challenged the arrest and detention under sections 8, 9, and 10(b) of the Charter, and disputed the Crown's proof of impairment.

The court found reasonable grounds for arrest, no arbitrary detention, and no breach of the right to counsel despite language barriers.

The court found the accused guilty on both counts, with the second count stayed under the Kienapple rule.

The applicant challenged the warrantless seizure of his cellular phone subscriber information obtained by police during a Part VI wiretap authorization for a robbery investigation.

The applicant was not a suspect and was not named in the authorization.

Police obtained his subscriber information after intercepting an innocuous conversation between the applicant and a named target.

The court found that the seizure violated s. 8 of the Charter as it was not authorized by law.

The assistance order under s. 487.02 does not authorize expansion of investigations to unnamed persons without reasonable grounds.

The court excluded the subscriber information and any derivative evidence under s. 24(2), finding the breach serious and that admission would undermine public confidence in the rule of law.

The accused was charged with dangerous operation of a motor vehicle, impaired operation, and operation with a blood alcohol concentration exceeding 80 mg/100 mL following a high-speed chase through residential areas.

The defence brought Charter applications challenging the admissibility of breath test evidence on grounds of violations of sections 7, 8, and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found a breach of section 8 (right to privacy) regarding cell toilet surveillance and excluded the breath test evidence pursuant to section 24(2).

However, the court convicted the accused on the dangerous operation and impaired operation charges based on the totality of the evidence, including observations of the accused's driving and physical condition.

The Crown charged the defendant with assault causing bodily harm, possession of a firearm and ammunition, possession of controlled substances, and failure to comply with release conditions.

The Crown's case relied on DNA evidence linking the defendant to items found in a vehicle that fled the scene of a stabbing at a bar.

The court found that the Crown failed to prove all counts beyond a reasonable doubt.

The evidence regarding the assault was insufficient as the knife blade and handle were not properly linked to the incident, and there was no evidence connecting the victim identified through DNA to the person assisted by the bar owner.

The possession counts failed because DNA evidence alone, showing the defendant's profile among multiple contributors on items, could not establish possession on the date alleged.

No evidence was presented on the failure to comply counts.

All charges were dismissed.