Jonathan Dawe

The appellant was convicted of accessing and possessing child pornography after police obtained his subscriber information from his Internet Service Provider (ISP) without a warrant, using it to obtain a search warrant for his residence.

On appeal, the appellant argued that the police violated his section 8 Charter rights by obtaining his subscriber information without prior judicial authorization.

The Court of Appeal dismissed the appeal, holding that while the appellant had a subjective expectation of privacy in his internet activity, this expectation was not objectively reasonable given the ISP's terms of service and its legitimate interest in preventing the criminal misuse of its services.

The court also found that the information to obtain the search warrant contained sufficient grounds.

The appellant appealed his sentence for drug trafficking, arguing the trial judge erred by imposing a sentence beyond the settled range.

The Court of Appeal dismissed the appeal, finding no error in principle.

The Court held that the appellant's extensive criminal record, including five previous convictions for the same offences, and the total absence of mitigating factors justified a sentence beyond the usual range, as sentencing is an individualized process.

The appellant pleaded guilty to kidnapping with a firearm, aggravated assault, and related firearms offences.

He was sentenced to 10 years' imprisonment with 1.5:1 credit for pre-sentence custody.

On appeal, the Court of Appeal reduced the global sentence to 9 years to conform with the Crown's trial submissions, and granted 2:1 credit for pre-sentence custody, noting the lack of rehabilitative programs in remand.

The court dismissed arguments based on the parity principle and the youth of the offender, emphasizing denunciation and deterrence for firearms offences.

The appellant appealed her convictions for six counts of fraud.

She argued that she could not be a principal to the offences because she only provided her banking information to a friend who deposited forged cheques.

The Court of Appeal dismissed the appeal, finding that her actions of providing account information, accepting the money, and immediately withdrawing and distributing it amounted to an implicit misrepresentation to the banks.

The court also found that while the trial judge erred initially regarding hearsay, the error was cured when the appellant later testified about the conversations.

Finally, the court held that any error in drawing an adverse inference for failing to call witnesses was harmless given the overwhelming evidence of guilt.

The appellant appealed his drug convictions, arguing the trial judge erred in admitting evidence under s. 24(2) of the Charter after finding his s. 9 rights were violated by an arbitrary roadside stop.

The Crown cross-argued that the stop was lawful.

The Court of Appeal upheld the trial judge's finding that the stop was arbitrary, as the police lacked reasonable suspicion.

However, the Court found the trial judge erred in his s. 24(2) analysis by finding exigent circumstances where none existed and by relying on unsupported evidence regarding another officer's grounds to detain.

The appeal was allowed, convictions quashed, and a new trial ordered.

The appellant, a youth sentenced as an adult, appealed his conviction for first degree murder arising from a stabbing on a city bus.

The appellant, who was the initial aggressor in an attempted robbery, argued the trial judge erred by refusing to leave self-defence under ss. 34(2) and 35 of the Criminal Code to the jury.

The Court of Appeal dismissed the appeal, finding no air of reality to the self-defence claims.

The court held it was unreasonable for the appellant to believe the victim's resistance was an unlawful assault under s. 34(2), and there was no evidence the appellant attempted to retreat as required by s. 35.

The appellant appealed summary conviction findings of guilt on two counts of indecent act.

The appellant argued that the trial judge improperly reversed the burden of proof by failing to require the Crown to disprove the alibi beyond a reasonable doubt, and improperly drew an adverse inference from the rejected alibi.

The appeal judge found no error regarding the burden of proof, but held that the trial judge erred by treating disbelief of the alibi as evidence of guilt without proof of deliberate fabrication.

Because the counts were factually intertwined and the adverse inference undermined the assessment of credibility, the error tainted both verdicts.

The appeal was allowed and a new trial ordered.

The appellant appealed his global sentence of 6 years net (8 years total) for 32 convictions, including break and enter, dangerous driving, and possession of stolen property.

He argued the sentencing judge failed to give sufficient weight to his mental illness.

The Court of Appeal dismissed the appeal, finding no causal link between his illness and his criminal conduct, and no evidence that a lengthy sentence would have a severe negative effect on him.

A corrigendum was later issued to correct an error regarding the sentence for breach of probation.

The Crown appealed a directed verdict of acquittal on a charge of first degree murder.

The trial judge had refused to admit an agreed statement of facts from a youth's guilty plea for the truth of its contents after the youth recanted portions implicating the respondent.

The Court of Appeal allowed the appeal, finding the trial judge erred in concluding the opportunity to cross-examine the youth was illusory due to solicitor-client privilege and in failing to properly assess circumstantial indications of the statement's reliability.

The appellant was convicted of manslaughter following a second trial for a 1985 shooting outside an after-hours club.

He appealed his conviction, arguing the trial judge erred by failing to correct Crown counsel's closing submissions regarding his failure to retreat and his alleged lack of fear.

The Court of Appeal dismissed the appeal, finding that the trial judge's instructions on self-defence were adequate and that the jury was not misled by the Crown's submissions.

The appellant was convicted of possession of a stolen tractor found in a cube van in his backyard.

At trial, the judge excluded utterances made by a third party found at the scene, ruling them inadmissible hearsay.

On appeal, the Court of Appeal held that the trial judge erred because the statements were not adduced for the truth of their contents, but simply to prove they were made, which could support an alternative suspect theory.

The appeal was allowed, the conviction quashed, and a new trial ordered.

The appellants appealed their convictions for possession of cocaine for the purpose of trafficking.

The Crown conceded that the convictions relied on the theory that the appellant Jean purchased the drugs from the appellant Kapend and a co-accused, and was in possession of the entirety of the drugs hidden in a container in a vehicle.

The Court of Appeal held that the evidence could not reasonably support the inference that Jean had knowledge of the cocaine secreted in the container.

As the Crown conceded that Kapend's conviction could not stand if Jean's conviction was quashed, both convictions were quashed and acquittals entered.

The appellant was convicted of aggravated assault after a 48.5-month non-appellate delay.

The application judge found 23 months of delay attributable to the Crown but dismissed the appellant's section 11(b) Charter application, applying the 'clearest of cases' standard and finding no prejudice to trial fairness.

The Court of Appeal held that the application judge erred in law, as a stay is the mandatory minimal remedy for a section 11(b) breach and proof of actual prejudice to trial fairness is not required.

The Court upheld the attribution of delay to the Crown, allowed the appeal, set aside the conviction, and entered a stay of proceedings.

The appellant was convicted of impaired driving causing death and bodily harm after his truck collided with a van.

He fled the scene and claimed he consumed alcohol only after returning home.

The trial judge rejected his evidence, drawing an adverse inference from his failure to call his mother and a friend to corroborate his post-accident drinking, and finding he lied about a conversation based on a misapprehension of evidence.

The Court of Appeal held that the trial judge erred in misapprehending the evidence and improperly drawing an adverse inference against the accused for failing to call confirmatory evidence.

The cumulative effect of these errors resulted in a miscarriage of justice.

The conviction appeal was allowed and a new trial ordered, while the sentence appeal for failing to remain and public mischief was dismissed.

The appellant challenged firearms convictions arising from a street encounter with police, alleging arbitrary detention and breach of the right to counsel before he disclosed possession of a firearm.

The Court held that a psychological detention had crystallized during the encounter, that the detention was arbitrary under s. 9, and that the failure to advise of counsel breached s. 10(b).

The Court reformulated the legal framework for detention and established a revised three-part approach to exclusion of evidence under s. 24(2), ultimately admitting the firearm because the police conduct, though unconstitutional, was not egregious and the evidence was highly reliable and essential.

The Court also held that simple movement of a firearm from place to place did not constitute a 'transfer' for the purpose of the weapons trafficking offence, and entered an acquittal on that count.

The appellants, members of the Hells Angels, were convicted of extortion and extortion in association with a criminal organization after threatening a victim over an alleged debt while wearing club colours.

They appealed their convictions, arguing that the criminal organization provisions of the Criminal Code are unconstitutionally vague and overbroad.

The Court of Appeal dismissed the appeal, finding that the terms 'facilitation' and 'in association with' are well-understood and not impermissibly vague or overbroad.

The court also upheld the trial judge's finding that the appellants deliberately invoked their membership in the organization to inspire fear, and affirmed the sentence imposed.

The appellant was convicted of sexually assaulting his young nephew and niece.

On appeal, he argued that the trial judge misdirected the jury regarding the use of evidence from multiple complainants, as the Crown did not allege similar fact evidence.

The Court of Appeal agreed, finding the trial judge failed to instruct the jury to keep the evidence of each complainant separate and failed to caution against propensity reasoning.

The misdirection constituted an error in law.

The convictions were quashed, a new trial was ordered on five counts, and an acquittal was directed on one count due to an unreasonable verdict.

The appellant was convicted of second-degree murder for the death of his wife, which was initially investigated as a horse riding accident.

Fifteen years later, the police re-opened the investigation and the appellant confessed during a polygraph interview.

On appeal, the appellant argued his s. 10(b) Charter rights were violated, the trial judge erred in not leaving manslaughter to the jury, and sought to introduce fresh expert evidence suggesting an accidental death.

The Court of Appeal dismissed the conviction appeal, finding no Charter breach, no air of reality to manslaughter, and that the fresh evidence failed the Mohan and Palmer tests.

The sentence appeal regarding the 14-year parole ineligibility period was also dismissed.

The Crown appealed from the respondents' acquittals, which followed the trial judge's finding of a Charter violation and exclusion of marijuana evidence under s. 24(2).

The trial judge rejected the police officer's evidence that the discovery of the marijuana and seizure of toy guns were simultaneous, and found the continuation of the search after confirming the guns were toys was inappropriate.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's credibility findings, standing determinations, or s. 24(2) analysis, which are entitled to substantial deference.

The applicant, a manager of a hazardous waste facility, sought judicial review of a justice of the peace's order compelling him to submit to an interview and produce documents under s. 163.1(2) of the Environmental Protection Act.

The Divisional Court granted the application and quashed the order, finding that the statutory provision authorizes investigators to use devices and techniques but does not explicitly confer the power to compel third parties to answer questions or produce documents.