Joseph F. Kenkel

The accused was charged with having care or control of a vehicle with a blood alcohol concentration above the legal limit contrary to s. 253(1)(b) of the Criminal Code.

The accused occupied the driver's seat, triggering the statutory presumption of care or control.

The court found that the accused successfully rebutted the presumption.

The accused had driven to a park after a domestic argument, consumed alcohol only after arriving at the park, and then called her wife to pick her up rather than driving home.

The court found that the accused's actions demonstrated an intention to avoid driving and that the risk of danger necessary to establish culpable care or control was not present.

The charge was dismissed.

The accused brought an application to contest venue, seeking to transfer the proceedings from Newmarket (York Region) to Toronto (Toronto Region) for an alleged hand-to-hand drug transaction and related firearms offence.

The court considered whether it had jurisdiction to hear the application, whether a case management judge should hear it, and what test applies to contested venue applications.

The court held that it had jurisdiction to hear the application and that a case management judge was appropriately placed to do so.

Applying the test under s.599 of the Criminal Code, the court found that the Crown bore the burden of proving on the balance of probabilities that it was expedient to the ends of justice to keep the case in Newmarket.

The court dismissed the application, finding that the presumption of locality favoured York Region, where the offence occurred, and that all relevant witnesses and police were based in York Region.

The accused was charged with six offences under the Criminal Code related to online child exploitation following his arrest at a hotel in Markham.

The sole issue at trial was whether the Crown proved beyond a reasonable doubt that the accused knew or was wilfully blind to the fact that the person he was dealing with was under 16 years of age.

The accused testified that he was confused due to multiple simultaneous conversations, phone technical problems, and message deletions.

The court found the accused's testimony generally not credible but determined that on the whole of the evidence, the accused's explanation that he confused conversations was reasonably possible, leaving a reasonable doubt.

All charges were dismissed.

The offender pleaded guilty to criminal negligence causing death after driving at extreme speeds while impaired by alcohol and drugs, resulting in a fatal head-on collision.

The Crown sought 6 to 8 years imprisonment, while the defence sought 5 years.

The court weighed significant aggravating factors, including the offender's extreme risk-taking and the devastating impact on the victim's family, against mitigating factors such as his youth, guilty plea, and documented mental health issues.

The court sentenced the offender to 5 years in custody, plus an 8-year driving prohibition and a DNA order.

At a preliminary inquiry, the Crown sought to commit the two accused to stand trial for second-degree murder following a fatal stabbing during a drug transaction.

The court first ruled that the statements made by both accused to the police were voluntary, finding no oppression or improper inducements, and noting that one accused's autism did not affect his operating mind.

Applying the test for committal, the court found sufficient direct and circumstantial evidence upon which a properly instructed jury could reasonably conclude that both accused were parties to a planned robbery involving knives, making them liable for murder under s. 229(c) of the Criminal Code.

Both accused were committed to stand trial.

The accused was stopped at a RIDE program, failed a roadside screening test, and was brought to the station for breath tests.

At trial for an 'Over 80' charge, the sole issue was whether the breath tests were taken 'as soon as practicable' under s. 258(1)(c)(ii) of the Criminal Code, given a delay to consult duty counsel.

The court found the police acted reasonably in revisiting the right to counsel at the station after an ambiguous roadside response, and the accused requested to speak to duty counsel.

The Crown proved the tests were taken as soon as practicable, and a finding of guilt was entered.

The accused was stopped at a RIDE program and asked to provide a breath sample into an Approved Screening Device.

After failing to provide a suitable sample and claiming he was scared, he was charged with failing to comply with a demand.

At trial, the accused argued he had a reasonable excuse due to an anxiety disorder.

The court rejected his evidence as not credible, finding he was physically able to provide a sample but chose not to out of fear of failing the test.

A finding of guilt was entered.

The offender was convicted at trial of operating a motor vehicle with a blood alcohol level over 80mgs.

She had a prior conviction for impaired driving in 2010, and the Crown filed a Notice of Increased Penalty.

The court accepted a joint submission for a 30-day sentence, allowing it to be served intermittently to preserve the offender's employment.

The court also imposed a two-year driving prohibition and two years of probation with counselling conditions.

The accused, a Muay Thai boxing coach, was convicted of sexual assault and sexual interference against a 14-year-old student.

The sexual interference occurred on a flight when the accused placed his hand underneath the victim's shorts and cupped her buttocks while she slept.

The court imposed a 90-day intermittent custodial sentence, finding that a conditional sentence was inappropriate given the breach of trust, the grooming behaviour that preceded the offence, and the significant psychological impact on the victim.

The court also imposed a two-year probation with restrictive conditions, a 10-year SOIRA order, a 5-year section 161 prohibition order, and a DNA order.

The appellant appealed a conviction entered under section 9.1 of the Provincial Offences Act following her failure to appear at trial.

The appellant challenged the certificate of offence on the ground that the officer failed to check off the a.m./p.m. box next to the time of the alleged offence.

The court dismissed the appeal, finding that the omission of the a.m./p.m. designation was a highly technical deficiency that could not cause prejudice to the defendant, as the time of the offence is not an essential averment and is not relevant to the defendant's decision whether to contest the charge.

The court emphasized that the section 9.1 procedure is intended to permit judges to decide cases on their merits and to avoid having proceedings invalidated because of technical objections having no prejudicial impact.

The court addressed an ex parte communication from an unrepresented accused who objected to the pre-trial process and requested a further judicial pre-trial meeting.

The accused had failed to attend the Trial Co-ordinator's office following a judicial pre-trial conference and subsequently sent an unsigned letter to the court raising procedural objections.

The court rejected the accused's objections, finding the pre-trial process was properly conducted and that trial dates could be set.

The court reminded the accused that ex parte communications with the judge are prohibited and that all future communications must occur in open court on the record.

The accused was charged with "Over 80" following a traffic stop where the officer detected an odour of alcohol.

The defence raised multiple Charter breaches including sections 7, 8, 9, and 10(b).

The court found no section 7 breach regarding lost in-car video evidence, no section 8 breach regarding the timing of the ASD demand, and no section 9 breach regarding arbitrary detention.

The court found a brief section 10(b) breach (8 minutes) regarding the failure to provide right to counsel advice immediately upon detention for investigation, but the accused was offered the opportunity to contact duty counsel at the roadside and did speak with duty counsel at the station before approved instrument testing.

The court applied the section 24(2) analysis and admitted the breath test evidence, finding all Grant factors favoured admission.

The accused was found guilty.

The appellant appealed a provincial offence conviction on the grounds that the Justice of the Peace erred in dismissing a Charter s. 11(b) application regarding trial delay.

The appellant had retained counsel days before the first trial date without disclosure, resulting in an adjournment to September 15, 2017.

At trial, the appellant pleaded guilty to a reduced charge and was sentenced.

The court dismissed the appeal on two grounds: first, that a guilty plea constitutes a waiver of the right to challenge pre-trial rulings, and second, that on the merits, the delay was caused by the defence and therefore did not violate the applicable legal tests.

The accused was convicted of 15 offences arising from a domestic violence incident in which he entered his former spouse's home with a loaded, sawed-off shotgun with the intent to compel her to take him to two men he intended to kill.

The victim demonstrated remarkable bravery in refusing to comply despite being threatened with death and having the shotgun pointed at her temple.

The court imposed a sentence of 7 years imprisonment, less 14 months credit for pre-trial custody, resulting in 70 months to be served.

The sentence reflects the gravity of the offences, the use of a loaded firearm, the planning and preparation involved, and the significant threat posed to the victim and the community, while considering mitigating factors including the accused's role as a good father and genuine remorse.

The appellant appealed his conviction for speeding 135 km/hr in a 100 km/hr zone.

At trial, the appellant claimed he did not know he was speeding due to vision problems, which did not constitute a valid defence.

On appeal, the appellant argued that the officer's notes contained an incorrect vehicle model description (Mercedes 2 CL instead of Mercedes 250 CLA) and that this error should result in the conviction being overturned.

The court found that the officer properly identified the vehicle by colour, make, model number, and license plate at trial, and directly identified the appellant as the driver through a valid Ontario driver's license photo card.

The court held that any discrepancy in the model description would have made no difference to the verdict, as the evidence clearly established that the appellant was driving his Mercedes at the alleged speed.

The accused was convicted at trial of five offences arising from his attempt to purchase sexual services from two 14-year-old girls.

Following conviction, the accused applied to reopen the case, arguing that late disclosure and failure to disclose certain documents deprived him of the ability to make full answer and defence.

Specifically, the defence contended that disclosure related to a second production order was not adequately provided, which may have prevented a Charter challenge to the admissibility of evidence obtained from that order.

The Crown argued that disclosure was provided in a timely manner and that the defence had notice of the availability of further disclosure.

The court dismissed the application to reopen, finding that the rigorous test for reopening after verdict had not been met.

The accused was convicted at trial of communicating via telecommunication to facilitate child prostitution and communicating for the purpose of obtaining sexual services of a person under 18 years old.

The accused responded to an online prostitution advertisement, was informed the girl was 15 years old, engaged in graphic sexual discussions, negotiated price, and attended a hotel to complete the transaction where he was met by police.

The court imposed a global sentence of 12 months imprisonment followed by two years probation with strict conditions, rejecting the defence submission for an intermittent sentence and conditional sentence based on exceptional family circumstances.

The court found that denunciation and general deterrence were paramount in child abuse cases and that the accused's moral blameworthiness was high given his knowledge of the victim's age.

The accused was charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit (Over 80) contrary to s.253(1)(b) of the Criminal Code.

The defence brought a Charter voir dire alleging multiple breaches of the accused's rights under sections 7, 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms, seeking exclusion of the breath test evidence.

The court found that while there was a minor breach of s.10(b) regarding the timing of right to counsel advice, this breach had no impact on the Charter protected rights of the accused and did not warrant exclusion of evidence under s.24(2).

The remaining alleged Charter breaches were not proven on the balance of probabilities.

The Crown proved the charge beyond a reasonable doubt.

The accused was charged with mischief to property of a value less than $5,000 contrary to s. 430(4) of the Criminal Code.

The accused attended a lawyer's office to retrieve a file belonging to his father.

A dispute arose regarding the retrieval of the file, during which the accused pushed the lawyer, causing the lawyer to fall into a sideboard and break a porcelain horse figurine.

The accused claimed the lawyer broke the figurine by hitting him with it.

The court found the lawyer's testimony credible and the accused's testimony inconsistent and incredible.

The court convicted the accused, finding that while the damage was not intentional, the accused was reckless as to the consequences of pushing the lawyer in an area containing fragile items.

The accused was charged with 15 offences arising from an incident on February 5, 2018, where he allegedly confronted his former spouse at her home with a loaded sawed-off shotgun, threatened to kill her and two men, and forcibly confined her.

The Crown's case relied primarily on the credible testimony of the complainant, corroborated by independent witness evidence, forensic firearms analysis, and circumstantial evidence including a shotgun shell recovered from the scene.

The accused's defence was that he possessed only a pellet gun and had no knowledge of the shotgun or ammunition.

The court found the complainant to be a credible and reliable witness and the accused's testimony to be illogical, internally inconsistent, and contradicted by external evidence.

The court convicted on all counts.