Joseph F. Kenkel

The accused was charged with "Over 80" following a traffic stop for speeding on Highway 7 in Markham.

The defence challenged whether the Approved Screening Device (ASD) test was administered "forthwith" as required by section 254(2) of the Criminal Code, arguing that the investigating officer's delay in making the demand while conferring with a colleague breached the accused's Charter rights.

The court found that the approximately three-minute-and-thirty-seven-second delay was not a breach of the "forthwith" requirement, or alternatively, if it was a breach, it was trivial and should not result in exclusion of the evidence under section 24(2) of the Charter.

The accused was found guilty.

The accused was found highly intoxicated in the driver's seat of his vehicle at a shopping plaza.

He was arrested for impaired driving and care or control of a motor vehicle.

The Crown proved that the accused's blood alcohol concentration was between 220 and 316 mgs/100ml.

The defence raised Charter breaches regarding the adequacy of the reasons for arrest and challenged whether the accused was in care or control of the vehicle, arguing there was an alternate plan for pickup.

The court found no Charter breaches and determined the accused was in care or control of the vehicle.

The accused was convicted on both counts, with the Over 80 count stayed.

The Crown brought an application to remove counsel for the accused charged with two counts of second degree murder due to a conflict of interest.

The accused's counsel had previously represented a key Crown and defence witness in an unrelated impaired driving matter.

The court found that while a solicitor-client relationship existed, partial disqualification was a sufficient remedy to address the conflict of interest concerns while preserving the accused's right to counsel of choice.

The court ordered that counsel be prohibited from participating in the cross-examination of the witness and from being present when that witness testified.

The accused was charged with Assault and Assault with a Weapon following an incident with his domestic partner.

The complainant alleged the accused threw vodka in her eyes and punched her during an argument.

The accused testified the vodka splash was accidental while attempting to take the glass from her, and denied punching her.

The court found the complainant's evidence regarding the punch was vague, uncertain, and unsupported by independent evidence, resulting in acquittal on the assault charge.

However, the court found the accused guilty of the included offence of simple assault under s. 266, finding that he used force to take the glass from the complainant without her consent, resulting in the vodka being splashed into her eye.

The accused was charged with impaired operation contrary to section 253(1)(a) of the Criminal Code and operation while over 80 contrary to section 253(1)(b).

The Crown withdrew the third count at trial and conceded that the Over 80 count should be dismissed due to Charter violations.

The sole remaining issue was whether the Crown proved beyond a reasonable doubt that the accused's ability to operate his vehicle was impaired by alcohol.

The Crown's case rested on observations of an off-duty police officer and the arresting officer regarding the accused's driving pattern and physical observations.

The court found a reasonable doubt remained and dismissed the impaired driving charge.

The accused was charged with impaired driving and having a blood alcohol concentration over 80 mg/100 mL of blood after presenting his vehicle for service at a dealership.

The Crown and defence agreed that two issues remained: (1) whether the Crown proved identification of the driver beyond a reasonable doubt, and (2) whether the Crown proved that the Standard Field Sobriety Test demand was based upon reasonable suspicion, particularly regarding the time of driving.

The court found that identification was established through the combined evidence of the Guest Services Manager's in-court identification linked to the arresting officer's confirmation of identity.

The court also found that the SFST demand was objectively reasonable based on circumstantial evidence and reasonable inferences regarding the timing of the driving.

The "Over 80" count was stayed under the rule in R v. Kienapple.

The accused was charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit following a traffic stop.

The defence raised multiple Charter breaches including: failure to make an ASD demand "forthwith," failure to administer the ASD test before the accused could obtain legal advice, lack of reasonable grounds for the approved instrument demand due to failure to note the ASD calibration date, privacy breach through cell video surveillance, overholding after testing, and inadequate right to counsel advice.

The court rejected all alleged breaches and found the Crown proved the charge beyond a reasonable doubt.

A young person charged with sexual assault with a weapon and four counts of assault with a weapon applied to vary the terms of an undertaking entered into upon release from the police station.

The applicant sought to remove restrictions on contact with witnesses who were in the same grade, arguing such conditions prevented attendance at graduation, continuation of friendships, and participation in sports.

The Crown sought clarification of victim names, expansion of school property restrictions, and addition of a weapons prohibition.

The court granted the application in part, replacing the police undertaking with a court undertaking under section 515 of the Criminal Code that narrowed the no-contact provision to the two alleged victims only, permitted attendance at graduation with a parent, and added a weapons prohibition.

The accused pleaded guilty to two counts of possession of controlled substances for the purpose of trafficking and one count of obstructing justice.

The accused was arrested following a traffic stop on Highway 407 where police discovered a large quantity of drugs including methamphetamine, cocaine, fentanyl/heroin mixture, GHB, and various other controlled substances, along with scales, cellular phones, and debt lists.

The court imposed a joint submission sentence of 7 years, with credit for 214 days of pre-trial custody credited as 365 days, resulting in 6 years remaining to be served.

A section 109 firearms prohibition order for life and a DNA order were imposed.

The Crown brought an application for forfeiture of firearms under section 117.05 of the Criminal Code.

The respondent was apprehended under the Mental Health Act following an apparent suicide attempt involving self-harm to his wrists.

Police seized four long guns, ammunition, and the respondent's Possession and Acquisition License (PAL) from his residence.

The respondent did not appear at the hearing despite being served with notice and having duty counsel confirm his availability.

The court proceeded ex parte and ordered forfeiture of the firearms and ammunition to the Crown, with a 90-day period allowing the respondent to sell or transfer the long guns to a licensed person, subject to police approval.

The court also imposed a five-year firearms prohibition.

The applicant sought an extension of time to pay a $500 fine imposed for careless driving on January 31, 2006.

This was the third application for extension within two months.

The applicant provided contradictory explanations for non-payment over thirteen years, including claims that the fine had already been paid and that the file had disappeared.

Despite making various payment promises, the applicant had made only one $50 payment during the period of multiple applications.

The court dismissed the application and directed that no further applications for extension of time to pay be accepted in the matter.

The accused was charged with assault contrary to section 265 of the Criminal Code.

A witness observed a man push a woman into the street and then drive away in a vehicle.

Dash cam video corroborated the witness's account of the dangerous driving.

The defence did not call evidence.

The sole issue at trial was identification.

The independent witness identified the accused from the dock but could only provide a general description (Persian background, darker skin, black hair, not tall but muscular).

The court found that the dock identification, combined with the generic description, was insufficient to prove identity beyond a reasonable doubt.

The court noted that the witness did not recall the person having a beard, which was a prominent identifying feature of the accused.

The charge was dismissed.

The accused was charged with failing to appear in court contrary to section 145(2)(b) of the Criminal Code.

The Crown proved that the accused failed to attend court on June 23, 2017, and did not re-attend until after his arrest on October 20, 2017.

The accused claimed he was unaware of the court date and relied on his lawyer to attend on his behalf.

The court found that while the accused may not have known the specific date, he had a legal obligation to maintain regular contact with his counsel and keep informed of court proceedings.

The accused's breach of multiple bail conditions, including leaving his surety's residence in Quebec and returning to Toronto without updating his lawyer or the officer-in-charge, demonstrated either wilful blindness or recklessness regarding his court obligations.

The court rejected the accused's personal circumstances as a reasonable excuse and found the Crown proved the charge beyond a reasonable doubt.

The accused was charged with operating a vehicle with a blood alcohol level in excess of the legal limit of 80 mgs following a traffic stop initiated by police responding to a report of an intoxicated person at an LCBO store.

The Crown relied on breath test results showing readings of 160 mgs and 150 mgs.

The defence challenged the admissibility of the evidence on three grounds: the applicability of the presumption of identity under section 258(1)(c) to transitional cases following C-46 amendments; whether the breath tests were taken "as soon as practicable" given a 17-minute delay for facilitating the accused's right to counsel; and whether the Crown proved the requirements for the presumption of accuracy under section 320.31(1).

The court found that the presumption of identity continues to apply to transitional cases, that the delay for counsel was reasonable and did not breach the "as soon as practicable" requirement, and that the Crown proved all elements of section 320.31(1).

The accused was convicted.

The appellant was convicted of careless driving contrary to s. 130 of the Highway Traffic Act.

On appeal, the sole issue was whether the Justice of the Peace erred in denying a motion for non-suit at the close of the prosecution case regarding the identification of the driver.

The Crown's case rested entirely on eyewitness testimony from the driver of the vehicle that was struck.

That witness testified he vaguely remembered the other driver and expressed uncertainty in his identification, stating "I think it's her." The Crown conceded the identification evidence was "sketchy." The court found that the identification evidence was so weak that no properly instructed trier of fact could find guilt beyond a reasonable doubt, and the Justice of the Peace erred in not granting the non-suit motion.

The appellant appealed his conviction for disobeying a stop sign contrary to section 136(1) of the Highway Traffic Act.

The appellant claimed he had stopped one to two metres behind the stop line, but the trial Justice of the Peace found, based on officer testimony and in-car camera video evidence, that the appellant had only slowed but did not come to a full stop at the marked line.

The appellate court found the findings of fact were reasonable and supported by the evidence, and dismissed the appeal.

The appellant appealed a conviction for careless driving contrary to section 130 of the Highway Traffic Act.

The trial justice found the appellant guilty based on evidence of multiple unsafe lane changes, including approaching another vehicle too closely, suddenly switching lanes, cutting abruptly in front of that vehicle, nearly colliding with a pickup truck, and weaving between lanes.

The appellant raised three grounds of appeal: that there was no evidence of high speed, that the trial justice failed to apply the principles from R v. WD regarding reasonable doubt, and that the court erred in finding the driving lacked reasonable consideration.

The appeal court dismissed all grounds, finding the trial justice properly applied the law and reasonable doubt principles, and that the accepted evidence clearly established a breach of section 130.

The appellant was convicted at trial of speeding 100 km/h in a 60 km/h zone contrary to section 128 of the Highway Traffic Act.

The officer used a BEE III mobile radar device to measure the appellant's speed.

On appeal, the appellant challenged the conviction on the grounds that the officer failed to follow the device manual, specifically the requirement to use tuning forks for calibration.

The court dismissed the appeal, finding that the officer was qualified to operate the device, the device was properly tested before and after use, and the failure to follow an outdated calibration procedure that no longer applied to the current model of the device did not create a reasonable doubt about the accuracy of the speed measurement.

The appellant was convicted of speeding (130 km/h in a 100 km/h zone) under section 128 of the Highway Traffic Act.

The appellant requested a trial but failed to appear and was convicted in absentia under section 9.1 of the Provincial Offences Act.

On appeal, the appellant challenged the conviction, arguing that the certificate of offence was irregular on its face due to an alleged alteration to the date field (a zero with a line through it).

The court dismissed the appeal, finding that the certificate was complete and regular on its face and provided sufficient notice of the transaction.

The appellant appealed her conviction for failing to stop for an amber light contrary to s. 144(15) of the Highway Traffic Act.

The central issue was whether the Justice of the Peace erred in refusing an adjournment and proceeding with trial where the appellant received disclosure on the trial date.

The appellant had delayed requesting disclosure until five weeks before trial, despite receiving clear instructions in the Notice of Trial and online guide.

The court held down the matter twice on the trial date to allow the appellant to review the disclosure, including officer's notes and in-car camera video.

The appellant agreed to proceed with trial after reviewing the materials.

The court found no error in proceeding and dismissed the appeal.