Joseph F. Kenkel

Sentencing of a first offender convicted at trial of aggravated assault, assault with a weapon, uttering a threat to cause death, and possession of a weapon for a dangerous purpose.

The accused attacked his sister's husband with a box cutter knife in the family home, inflicting deep cuts requiring 70 stitches, and also cut his own father who intervened.

The accused absconded and was sentenced in absentia after his counsel was removed from the record.

The court found the stated intent to kill was a significant aggravating factor beyond the mere utterance of a death threat.

While acknowledging the Crown's proposed range of 3.5 to 4 years was below what the circumstances warranted, the court imposed a global sentence of 4 years' custody, with ancillary orders including DNA, a firearms prohibition, a no-contact order, and restitution of $26,338.

The court granted the Crown's application under s. 475 of the Criminal Code, found the accused had absconded, and held it was necessary in the interests of justice to proceed with sentencing in absentia.

The court relied on the prolonged failure to appear, unsuccessful efforts to locate the accused, victim-impact timing concerns, and the public interest in timely sentencing for serious violence.

Accused charged with operating a conveyance with a blood alcohol concentration exceeding 80mg/100ml pursuant to s 320.14(1)(b) of the Criminal Code following a 911 report of an impaired driver.

The court dismissed Charter challenges under ss 9, 8 (ASD demand), and 10(b), finding no arbitrary detention, a lawful screening device demand, and no breach of right to counsel where the accused failed to exercise that right with reasonable diligence.

Although the Crown conceded a s 8 breach for failure to make the approved instrument demand as soon as practicable under s 320.28(1), the court declined to exclude the breath test evidence under s 24(2), finding the breach was largely attributable to the accused's own obstructive conduct.

The court applied s 320.31 conclusive proof provisions and s 320.31(4) read-back calculations to establish a BAC of 140mg/100ml within the two-hour window, entering a finding of guilt.

A young person was convicted of robbery contrary to section 343 of the Criminal Code following a planned, coordinated attack on a victim at a bus stop.

The victim was robbed of an expensive coat at knifepoint and suffered a concussion requiring hospitalization and causing him to lose his academic year.

The court imposed an 18-month probation sentence with ancillary conditions including firearms prohibition and DNA orders, accepting a joint submission from Crown and defence counsel despite noting that other sanctions would better meet the sentencing objectives under the Youth Criminal Justice Act.

The defendant was convicted at trial of three counts of operating a conveyance while prohibited contrary to s. 320.18.

The Crown sought the maximum custodial sentence of 2 years less 1 day based on seven prior convictions for the same offence and eleven prior convictions for failing to comply with court orders.

The defence argued for a conditional sentence of 6-12 months, citing the jump principle and the defendant's indigenous background.

The court imposed a conditional sentence of 15 months concurrent on all counts, finding that despite the serious criminal history and need for deterrence, the defendant had demonstrated positive change and rehabilitation potential, particularly following drug counselling in 2023 and the absence of further offences in the 20 months since the subject offences.

The accused was charged with nine offences arising from three separate incidents of alleged domestic violence spanning from 2013 to 2022.

The charges included multiple counts of assault, assault with a weapon, assault causing bodily harm, assault by choking, uttering death threats, and uttering threats to cause bodily harm.

The trial turned on credibility, with the complainant and accused providing conflicting accounts of events.

The court found the complainant's evidence credible and internally consistent, while finding the accused's denials of physical violence and threats inconsistent with surrounding circumstances and his own admissions in a counselling letter.

The court convicted on four counts and acquitted on the remaining charges.

The Ontario Court of Justice dismissed Nathaniel McCausland's application for a stay of proceedings alleging abuse of process due to the Crown's alleged reneging on a plea agreement.

The court found no evidence of a formal plea agreement, only vague discussions initiated by a bail Crown attorney without proper authorization or detailed terms.

The burden of proving an abuse of process was not met, as there was no misconduct or bad faith by the Crown.

The decision clarifies the distinction between plea discussions and binding plea agreements, emphasizing the necessity of clear, authorized, and detailed terms for a plea agreement to be enforceable.

The Ontario Court of Justice considered the lawfulness of a second Approved Screening Device (ASD) test conducted on Paul J. Foran after his initial roadside test failed.

The court examined whether the second test was lawful under sections 8 and 10(b) of the Charter, focusing on whether a new demand was required and whether the second test breached the accused's right to counsel.

The court found the second test was lawful, conducted for the accused's benefit to ensure accuracy, and that no breach of the right to counsel or lawful demand occurred.

The court also rejected the claim that police improperly steered the accused to duty counsel, finding the accused chose duty counsel voluntarily.

The charge of impaired driving with a blood alcohol concentration over the legal limit was proven beyond a reasonable doubt.

This decision addresses the legality of a vehicle stop in a private hotel parking lot under the Highway Traffic Act (HTA) and the application of a Criminal Code driving prohibition order to such a location.

The court found that the HTA section prohibiting use of unauthorized plates applies in private parking lots and that the Best Western hotel parking lot constituted a "public place" under s 320.24(8) of the Criminal Code.

The accused’s right to counsel was breached technically by not repeating the right to counsel advice at the roadside upon arrest for driving while prohibited, but the breach was minor and did not justify exclusion of evidence.

The possession charge was dismissed due to insufficient evidence, but the remaining charges were proven beyond a reasonable doubt.

This decision addresses the charge of dangerous operation of a vehicle under s 320.13(1) of the Criminal Code.

The court considered the credibility of the police officer's radar speed measurement and the accused's testimony.

The officer's evidence of the van traveling at 139 km/hr in a 70 km/hr zone, combined with aggressive driving and distraction, was found credible.

The accused's contradictory and unreliable testimony was rejected.

The court found the accused's driving to be a marked departure from the standard of care, constituting dangerous operation.

This decision addresses deficiencies in the defence final submissions in a criminal trial for Aggravated Assault.

The court found multiple errors in the defence's case citations, including fictitious cases, unrelated civil cases, and incorrect pinpoint references.

The judge ordered the defence counsel to personally prepare a new set of submissions with strict guidelines to ensure accuracy, proper numbering, and prohibition on the use of generative AI for legal research.

The ruling emphasizes the importance of reliable and precise legal submissions even when the case primarily turns on factual disputes.

This decision concerns a bail breach charge against Kit Wah Cheng for attending within 100 meters of his daughter’s and former partner’s residence, contrary to a bail condition.

The court carefully considered video surveillance evidence challenged by the accused on grounds of tampering and fabrication.

The judge found the evidence credible and probative, rejecting claims of manipulation or lawful excuse.

The Crown proved beyond a reasonable doubt that Mr. Cheng breached his bail condition on June 15, 2024.

The Ontario Court of Justice found Raymond Vitellaro guilty of impaired operation of a conveyance, dangerous operation, and refusing to provide a bodily sample following a multi-vehicle collision caused by his driving.

The court carefully analyzed the right to counsel issues, concluding no breach occurred despite delays in contacting his counsel of choice.

The evidence, including dashcam footage and credible witness testimony, established that Vitellaro drove dangerously at high speed, distracted by opening a bag of Cheetos, and was impaired by narcotic analgesics (suboxone).

His refusal to provide a bodily sample was not excused by his explanations and was proven beyond a reasonable doubt.

The court also dismissed a Charter s 11(b) application for delay, attributing most delay to the defence.

This decision addresses a breach of the accused's section 10(b) Charter right to counsel of choice during a DUI investigation.

The court found that the accused was denied proper access to his chosen lawyer due to lost audio and unclear police procedures, resulting in a serious breach.

Although the accused received advice from duty counsel, he was dissatisfied and maintained his right to speak to his own lawyer.

The breath test evidence was excluded under section 24(2) due to this breach.

On the merits, the Crown failed to prove impaired operation beyond a reasonable doubt, leading to dismissal of both charges.

The Ontario Court of Justice sentenced Anson Keung to a global 30-month jail term for multiple firearms offences, including carrying a concealed firearm, occupying a vehicle knowing a prohibited weapon was present, and possession of a loaded restricted firearm without authorization.

The court emphasized the significant public safety threat posed by loaded handguns in public, applying general deterrence and denunciation as primary sentencing objectives.

Despite mitigating factors such as Keung's youth, lack of criminal record, and good behaviour on bail, the court found a conditional sentence insufficient.

The sentence accounted for pre-trial custody and house arrest credit.

Additionally, the firearm and ammunition were forfeited, and a 10-year weapons prohibition was imposed.

Keung was also ordered to provide a DNA sample for the national databank due to the serious nature of the offences.

The Ontario Court of Justice considered whether police had lawful authority to demand an Approved Screening Device (ASD) test from Michael David Hamilton after he abandoned his vehicle.

The court found that the officers had reasonable grounds to suspect Hamilton had alcohol in his body and had operated a vehicle within the preceding three hours, satisfying the requirements of s 320.27(1)(b) of the Criminal Code as amended by Bill C-2.

The court rejected Charter challenges related to detention and ASD demand, finding no s 8 or s 9 breaches.

The evidence, including officer observations and breath test results, proved beyond a reasonable doubt that Hamilton’s blood alcohol concentration exceeded the legal limit.

This decision addresses the credibility assessment in a criminal trial involving three assault charges arising from incidents between separated spouses living in the same house.

The court carefully analyzes conflicting testimonies and an audio recording secretly made by the accused.

The judge finds the complainant credible and the accused's evidence undermined by the recording, resulting in convictions on two counts of assault under section 266 of the Criminal Code, while one count is dismissed due to insufficient proof of bodily harm.

This sentencing decision addresses the possession and making available of a vast collection of child sexual abuse material by Brian Beard.

The court details the extensive volume and depravity of the material, including over 100,000 images and videos, and the long-term collection spanning over a decade.

The joint submission for a four-year custodial sentence, with credit for pre-trial custody, is accepted.

The decision emphasizes denunciation and deterrence, the ongoing harm to victims, and the community risk posed by the offender.

The sentence includes concurrent custody, forfeiture of devices, DNA sampling, a 20-year sex offender registry order, and a 15-year prohibition order with specific conditions to protect children.

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

The court analyzed the total delay from the information being sworn to the scheduled trial end, considering defence delay, COVID-related backlog, and a discrete event involving the cancellation of remote testimony arrangements by the Newcastle Crown Court in the UK.

The judge found that while the total delay exceeded the presumptive ceiling established in R v Jordan, after subtracting defence delay and the discrete event delay, the remaining delay was below the ceiling and not unreasonable given the case complexity.

The application to stay the proceedings was dismissed.

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.