Joseph F. Kenkel

The defendant challenged a search warrant for a safe found in a vehicle following arrests related to a stabbing.

The defendant sought to exclude evidence obtained from the safe, arguing the warrant was invalid due to an improper warrantless search incident to arrest.

The court conducted a Garofoli review to determine whether credible evidence supported the warrant's issuance.

The court found the limited flashlight inspection of the safe was reasonable as incidental to arrest and that the Information to Obtain contained sufficient credible evidence to support the warrant.

The application was dismissed.

The defendant brought a motion for a ruling on standing to challenge the search of a safe found in a vehicle following an altercation at a bar.

The defendant sought to challenge both the search warrant for the safe and alleged violations of the vehicle owner's rights during her arrest and vehicle search.

The court found that the defendant had standing to challenge the search warrant based on the Crown's theory that items in the safe were in the defendant's possession, relying on the Supreme Court's decision in R v Jones.

However, the court found the defendant lacked standing to challenge alleged violations of the vehicle owner's rights, as the defendant had no privacy or property interest in the vehicle.

The defendant applied under s. 278.92(1) of the Criminal Code to determine the admissibility of text messages between the complainant and her son that were disclosed in family law proceedings.

The defendant was charged with sexual assault and uttering death threats.

The defence argued the messages indicated the complainant acknowledged the charges were false but feared prosecution if she recanted.

The Crown and complainant's counsel opposed admission, arguing the inference was speculative and the messages lacked significant probative value.

The court found the messages were relevant to the central issue of the complainant's credibility and had significant probative value.

The court admitted the messages but restricted cross-examination to the text message portion of the affidavit to prevent collateral attacks on the complainant's credibility regarding family law matters.

The Ministry of Labour appealed a decision denying its motion to amend an information to substitute the correct defendant company.

The Ministry had charged Ash-Mar Construction Limited (operated by the father) instead of 1819315 Ontario Inc. operating as Ash-Mar Construction (operated by the son) following a workplace incident where a framing wall collapsed and injured a worker.

The lower court denied the amendment citing the Ministry's lack of diligence and the expiry of the Occupational Health and Safety Act limitation period.

The appellate court allowed the appeal, finding the lower court applied too narrow an interpretation of prejudice under section 34(4) of the Provincial Offences Act and erred in refusing the amendment.

The offender, a fifth-time impaired driving offender, was convicted of impaired operation after driving erratically on Highway 400 at a blood alcohol concentration of 297-285 mgs/100ml (nearly six times the safe driving limit).

The offender nearly caused a collision with a pickup truck.

The Crown sought the maximum summary custodial term of 18 months with a lifetime driving prohibition.

The defence sought the minimum four-month jail term with a 10-year prohibition.

The court imposed 14 months imprisonment followed by three years probation, with a lifetime driving prohibition, finding that while the Crown's submission was within range, some restraint was warranted given the offender's sentencing history and gaps in the record.

The accused was found asleep in a vehicle parked on the side of Highway 400 with the engine running.

A police officer detected an odour of alcohol and conducted an Approved Screening Device (ASD) test at the roadside, which led to further testing and charges of Over 80 and Impaired care or control.

The impaired count was dismissed.

The defence challenged the ASD demand as lacking reasonable suspicion and argued the demand was not made forthwith, constituting a breach of section 8 of the Charter.

The court found the demand was based on reasonable suspicion and was made in a timely manner.

The Charter application was dismissed and the accused was found guilty of care or control with blood alcohol concentration over 80 mg.

The accused was charged with uttering death threats and possession of a weapon for a dangerous purpose.

The Crown alleged that the accused made specific threats to kill Canadians during a phone conversation with a social services manager and was found carrying a concealed folding knife.

The accused denied making the threats, claiming language difficulties, and testified the knife was purchased for a shoe repair and was being returned.

The court found the Crown's witness credible and the accused's testimony unreliable and internally inconsistent.

The court accepted that the accused made the threats in the context of his grievances and possessed the knife for a dangerous purpose.

Guilty verdicts were entered on both counts.

An applicant sought an order permitting him to obtain a transcript of proceedings in a pre-enquete hearing.

The Crown argued that jurisdiction to review pre-enquete proceedings rests solely with the Superior Court of Justice.

The court found that it retained jurisdiction to hear the application but determined that the application should be brought before the Justice of the Peace who presided over the original hearing, as she is best situated to determine the merits and exercise control over her court's process and any restrictions on use of the transcript.

The accused was charged with impaired operation of a motor vehicle and operation with a blood alcohol concentration exceeding 80 mg/100ml following a traffic stop.

The Crown presented evidence of erratic driving observed by a civilian witness, observations by police officers at the roadside and station, and approved breath test results of 297 and 280 mg/100ml.

The accused claimed his driving errors and physical symptoms resulted from medical conditions including post-chemotherapy spasms and medication non-compliance.

The court found the Crown proved impairment beyond a reasonable doubt based on credible evidence from the civilian witness and police officers, rejecting the accused's medical explanation as not credible.

The court also dismissed Charter applications regarding the timing of the approved instrument demand and the duration of detention.

The accused was found guilty on the impaired driving count, while the "Over 80" count was stayed.

The accused was charged with failing to comply with bail conditions requiring him to reside at a specified address in Kleinburg and remain within that residence at all times unless in the presence of his surety or attending court on a specific matter in Scarborough.

Police attended the residence to conduct a bail compliance check and were informed by the surety and his wife that the accused was not present.

The accused did not present himself during the half-hour visit.

The defence conceded the Crown proved the bail conditions and identification but argued the Crown failed to prove beyond a reasonable doubt that the accused was not in the residence.

The court found the Crown proved guilt based on circumstantial evidence and the only reasonable inference was that the accused was in breach of his recognizance.

The accused was charged with impaired driving following a minor collision at a gas station and subsequent erratic driving on Highway 404.

A civilian witness observed the accused stumble when exiting his vehicle at the gas station and subsequently followed the vehicle on the highway, observing consistent swerving and lane violations.

Police officers observed similar driving deficiencies and noted physical signs of impairment including red eyes, slurred speech, unsteadiness, and an odour of alcohol.

The accused testified he consumed only two or three light beers over eight hours and attributed his driving errors to distraction from a following vehicle with flashing lights.

The court found the accused's testimony not credible and convicted him based on the consistent observations of the civilian witness and two police officers, corroborated by in-car video evidence.

The applicant appealed the revocation of his firearms license following his guilty plea to possession of child pornography.

The Area Firearms Officer revoked the license based on the applicant's conviction, his admission of a long-standing sexual interest in children that he could not control, and public safety concerns reflected in the sentencing court's imposition of custody, probation, and a section 161 order with extensive restrictions.

The applicant argued that the revocation was based on an automatic policy rather than individualized assessment and that he had been a responsible firearms owner in full compliance with all regulations.

The court upheld the revocation, finding that the AFO conducted an individualized assessment applying the proper criteria under the Firearms Act and that the decision was objectively reasonable.

The accused was charged with impaired operation contrary to section 253(1)(a) of the Criminal Code.

A constable located the accused's parked vehicle in a plaza and spoke with the accused, who stated she was too drunk to drive and had called for a pickup.

The Crown conceded that operation could not be proven as there was no evidence of movement.

The Crown sought to proceed on the included offence of care or control based on the accused's statements and observations of impairment.

The court found the accused's roadside statements inadmissible as conscripted admissions obtained from a detained person without proper Charter warnings.

Without the statements, the remaining evidence was insufficient to prove impairment.

The charge was dismissed.

The accused was charged with being in care or control of a motor vehicle while impaired by alcohol.

The Crown established that the accused's ability to operate the vehicle was impaired, with a projected blood alcohol level between 70 to 125 mgs/100ml.

The sole issue was whether the accused was in care or control of the vehicle.

Although the accused occupied the driver's seat, triggering a statutory presumption of care or control, the court found the accused successfully rebutted this presumption.

The accused testified he sat in the driver's seat to wait for his mother to fall asleep after a family dispute, keeping the door open to smoke and avoid using the ignition.

The court accepted his evidence as logical and consistent with circumstantial evidence, finding no realistic risk of danger and no evidence of intent to set the vehicle in motion.

The charge was dismissed.

The accused was charged with breaching a probation order by contacting her daughter via email four times between May 22 and July 14, 2019.

The Crown was required to prove beyond a reasonable doubt that the accused was bound by the probation order with the alleged term and that she was the author of the emails.

The accused claimed she sent the emails merely to see her daughter's name and did not expect them to be received because she believed the email accounts were inactive.

The court rejected this explanation as lacking credibility and found that the contents of the emails and the pattern of repeated messages demonstrated the accused intended them to be received.

The court found the accused guilty of the breach.

The applicant sought an ex parte application for fine extension following a sentencing imposed on November 13, 2018, which included a $1,600 fine and a $480 Victim Fine Surcharge.

On December 14, 2018, the Supreme Court of Canada declared the victim fine surcharge provisions of the Criminal Code unconstitutional and invalid.

The court found that the mandatory victim surcharge violated section 12 of the Canadian Charter of Rights and Freedoms not only when imposed but each time it was enforced.

The court vacated the $480 Victim Fine Surcharge and addressed time to pay the remaining fine.

The accused was charged with assault and uttering a death threat arising from an incident with his wife on August 18, 2019.

The assault charge was dismissed at the close of the Crown's case.

At trial, the court assessed the credibility of both the accused and his wife regarding the alleged death threat.

The wife testified that the accused threatened to kill her during an argument, while the accused denied making any threat.

The court found the wife's evidence credible and reliable, and rejected the accused's evidence as unreliable despite his sincerity.

The accused was found guilty of uttering a death threat.

The accused was charged with three offences arising from Project Raphael, an investigation into underage prostitution in York Region.

The accused sent text messages to an undercover officer posing as a 15-year-old girl in response to an online advertisement.

The central issue was whether the Crown proved beyond a reasonable doubt that the accused believed he was communicating with a person under the age of 16 or was wilfully blind to that fact.

The court found that while the accused was reckless in continuing discussions about purchasing sexual services where it was possible the other person might be underage, the Crown failed to prove the necessary belief beyond a reasonable doubt.

The charges were dismissed.

The accused was charged with impaired operation of a motor vehicle and operating a motor vehicle with a blood alcohol level exceeding the legal limit.

The Crown alleged the accused was observed driving erratically at high speed, including driving through a red light.

The defence challenged the reasonable grounds for arrest and the approved instrument demand, and alleged arbitrary detention contrary to section 9 of the Charter.

The court found the officer had reasonable grounds based on the totality of the driving observations and physical indicia.

The court rejected the arbitrary detention argument, finding the delay in release was reasonably explained by station circumstances.

The court convicted the accused on the impaired operation count and stayed the Over 80 count.

The defendant was charged with Aggravated Sexual Assault and related offences.

He had been assessed for fitness to stand trial twice and found fit on both occasions (July 18 and September 27, 2019).

The defence brought an application to determine whether a "keep fit" order was necessary under section 672.29 of the Criminal Code.

The court found that the defendant remained fit and that there was no evidence to displace the presumption of fitness.

The defendant's medical needs were being adequately met at the correctional facility, and he remained able to instruct counsel.

The court declined to issue a keep fit order and adjourned the matter to set trial dates.