K & W
KERBEL & WICKRAMASINGHE LLP
BARRISTERS | TRIALS & APPEALS
Our clients come to us to solve a legal problem or to manage a legal crisis. We carefully help them navigate around or through it. We work in and out of the courtroom to secure the best results for our clients while protecting their personal and business interests and their reputations.
Zach Kerbel is an experienced trial and appeal lawyer. He specializes in criminal and regulatory litigation, but has broad experience in civil litigation and landlord-tenant law matters as well. Zach has represented clients at all levels of court in Ontario, as well as in the Provincial Courts of Manitoba and New Brunswick. As a trial lawyer he has conducted numerous trials and bail hearings and has defended clients facing an array of criminal and regulatory offences from income tax violations to copyright infringement to money laundering to first degree murder. As an appeal lawyer, he has been successful as counsel or co-counsel on a number of notable cases in the areas of bias (R v. Huang, 2013 ONCA 240), unlawful arrest (R v. Brown, 2012 ONCA 225), similar fact evidence (R v. Dorsey, 2012 ONCA 225), wrongful convictions (R v. Sherret-Robinson, 2011 ONCA 399), and fresh evidence (R v. T.S., 2012 ONCA 289).
Zach received his Bachelor of Arts (Hons.) in English from McGill University in 2000 and his Juris Doctor from the University of Toronto in 2006. After articling and practicing in the area of civil litigation at a national law firm, he joined Lockyer Campbell Posner as an associate. In 2010, he started his own practice. In 2015, he teamed up with Saman Wickramasinghe to start the firm of Kerbel & Wickramasinghe LLP. He is a member of the Criminal Lawyers Association.
Saman Wickramasinghe has a history of successfully representing clients charged with a wide variety of criminal and regulatory offences. He has a wealth of experience litigating cases involving complex legal issues and those involving challenges based on the Canadian Charter of Rights and Freedoms. He has successfully conducted several jury trials and judge alone trials. Saman has also conducted a number of successful conviction appeals at the Superior Court of Justice and Ontario Court of Appeal.
Saman has extensive experience representing supervisors and companies investigated and charged under the Occupational Health and Safety Act. He has successfully defended clients in cases involving serious workplace injuries and fatalities. He is also an Occupational Health and Safety certificate candidate at the Chang School of Continuing Education at Ryerson University and an Infrastructure Health & Safety Association certified health and safety internal auditor.
Saman articled with the Criminal Law Group at Sack Goldblatt Mitchell LLP and was called to the bar in 2007. Soon after his call Saman co-founded Gosio and Wickramasinghe LLP and practiced in criminal defence and regulatory offence litigation. In 2011 Saman joined Lockyer Campbell Posner where he was a partner and continued to practice in the criminal and regulatory areas at both the trial and appellate levels. Saman and Zachary joined forces in 2015 and founded Kerbel & Wickramasinghe LLP.
We are experts in criminal law. We defend clients charged with a wide range of criminal charges both at the trial and appeal level. We have secured outstanding results in cases of fraud, money laundering, sexual assault, narcotics trafficking, assault and homicide. We also represent clients facing extradition and estreatment proceedings. Our strength as criminal lawyers is a reflection of both our high level advocacy skills honed by running countless trials and appeals and by our steadfast commitment to our clients’ interests.
Drinking and Driving Law
Drinking and Driving offences can carry serious personal and financial consequences. If you have been charged with a drinking and driving offence, it is essential that you retain counsel with the necessary expertise in this specialized area.
Kerbel & Wickramasinghe LLP has defended countless individuals accused of drinking and driving and we have a remarkable success rate. We will work tirelessly to secure the best possible outcome in your case, be it a withdrawal of the charges or an acquittal after trial. If you have already lost a drinking and driving case, we can help you with your appeal.
Occupational Health & Safety
Ontario’s Occupational Health and Safety Act (“OHSA”) provides severe penalties for companies and workplace supervisors found to have contravened the Act. Workplace accidents and fatalities can result in heavy fines and even prison sentences for those charged with violating its provisions.
Kerbel & Wickramasinghe LLP has extensive experience defending corporations and individuals charged with offences under the Occupational Health and Safety Act. Our firm’s vast experience defending both serious criminal and regulatory offences and arguing complex Charter applications makes us ideally suited to this kind of litigation.
Regulatory Litigation & Compliance
Individuals and business charged with regulatory offences are at risk of heavy fines and sometimes even imprisonment. Kerbel & Wickramasinghe LLP defends individuals and businesses charged with, or under investigation for, violations of provincial and federal regulatory statutes including:
The Occupational Health and Safety Act
The Smoke Free Ontario Act
The Bankruptcy and Insolvency Act
The Copyright Act
We also assist businesses with developing due diligence strategies to foster regulatory compliance and minimize the risk of successful prosecution long before any charges are laid.
NEWS & NOTEWORTHY CASES
In, R v. H., 2016 ONCA 85, the Ontario Court of Appeal allowed an appeal from conviction for sexual assault. The key aspect of the decision concerns the trial judge’s use of the Appellant’s demeanour while testifying. Justice Epstein, writing for the Court, had some interesting things to say about the proper use of demeanour evidence in criminal trials and cautioned trial judges about over-reliance on it:
 This court has repeatedly cautioned against giving undue weight to demeanour evidence because of its fallibility as a predictor of the accuracy of a witness’s testimony: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362. As I indicated in Rhayel, at para. 85, “[i]t is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom.”
 Although the law is well settled that a trial judge is entitled to consider demeanour in assessing the credibility of witnesses, reliance on demeanour must be approached cautiously: see R. v. S. (N.), 2012 SCC 72,  3 S.C.R. 726, at paras. 18 and 26. Of significance in this case is the further principle that a witness’s demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: R. v. A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 131; R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.), at pp. 313-14.
Zachary Kerbel represented the Appellant in the appeal. The judgment can be found here.
Retired Family Court Judge Judith Beaman will lead a commission into thousands of cases where Motherisk’s forensic analyses were used in child protection cases. Motherisk’s drug and alcohol testing policies were recently found to be “inadequate and unreliable” on an independent review conducted by retired Ontario Court of Appeal judge, Susan Lang.
Justice Lang’s report can be found here.
The flawed forensic testing conducted by Motherisk’s labs was first uncovered in the case of R v. Broomfield, 2014 ONCA 725 (CanLII).
Saman Wickramasinghe was co-counsel to Ms. Broomfield on her appeal to the Ontario Court of Appeal. The Court of Appeal’s judgment in her appeal can be found here.
Teen Convicted of First Degree Murder in Death of Police Officer Sentenced to 9 Years of Community Supervision
S.K., convicted of first degree murder in the death of Cst. G. Styles was sentenced to a 9 years of community supervision. The Crown had sought a 10 year sentence of incarceration.
The sentencing decision can be found here.
Michael Enright’s essay from CBC’s Morning Edition regarding the proceedings can be found here.
Saman Wickramasinghe was co-counsel to S.K. at his trial and sentencing.
In R v. B., 2015 ONSC 6901 (CanLII), the Ontario Superior Court of Justice overturned drinking and driving convictions based on the insufficiency of the trial judge’s reasons for judgment. The trial judge had failed to make any findings of fact or credibility, and failed to resolve conflicting evidence on several material points.
Without making these findings, there was no way for the Appellant, or the reviewing court, to understand why he had been convicted. A new trial was ordered.
Zachary Kerbel was counsel to the Appellant on the appeal.