Don Clarke

The defendant was charged with multiple Criminal Code and Controlled Drugs and Substances Act offences following a minor collision, flight from the scene, and discovery of a firearm and illicit drugs.

Key issues included identity, the admissibility of cell phone data under section 8 of the Charter due to alleged police non-compliance with reporting requirements, and proof of drug quantity for trafficking charges.

The court found the defendant guilty of most charges, including possession of the firearm and drugs, but acquitted him of possession for the purpose of trafficking due to insufficient evidence on drug quantity.

The Society sought an order for extended society care with no access for two young children.

The mother sought the return of the children to her care subject to supervision.

The court found the children in need of protection due to historical housing instability and conflict, but noted the mother had made significant progress, secured stable housing, and improved her parenting skills.

The court heavily criticized the Society for failing to expand the mother's access and for unreasonably opposing a temporary court order for overnight visits.

Concluding that the protection concerns could be mitigated by terms of supervision, the court dismissed the Society's application for extended care and ordered the children returned to the mother under a 9-month supervision order.

The respondent father brought a motion to enforce a settlement allegedly reached at a settlement conference in a child protection proceeding.

The court dismissed the motion, finding that no binding settlement had crystallized because essential terms, such as whether the order would be a supervision order or a final custody order, had not been agreed upon.

Furthermore, under the Family Law Rules, no agreement reached at a settlement conference is effective until signed by the parties and approved by the court.

The Respondent mother brought an urgent motion to enforce a prior order for the children's primary residence, add a police enforcement clause, and vary the father's access to be supervised or suspended due to the COVID-19 pandemic.

The father opposed, arguing the children wished to reside with him.

The Children's Aid Society (CAS) also sought to admit fresh evidence (surreptitious recordings) which was dismissed by the court.

The court found the father in breach of prior orders and that his actions empowered the children to disregard court orders.

The court granted the mother's motion, ordering the children's return to her care, adding a police enforcement clause, and mandating supervised access for the father, giving little weight to the children's stated preferences due to parental influence.

The Children's Aid Society of Haldimand and Norfolk sought an order for extended society care for two children, C and D, without parental access, aiming for adoption.

The respondent mother sought the children's return under a supervision order, citing improvements in her life.

The respondent father did not participate.

The court, applying the Child, Youth and Family Services Act, 2017, found that despite the mother's progress, her inconsistent access, substance use, mental health struggles, and poor problem-solving skills meant the children remained in need of protection.

The court determined that extended society care was in the children's best interests, denying parental access but ordering access between the children and their three older siblings.

The accused was charged with failing or refusing to comply with a breath demand made pursuant to section 254(2) of the Criminal Code.

A civilian witness reported a possible impaired driver, and police conducted a traffic stop.

The officer made a demand for a breath sample into an Approved Screening Device (ASD).

The Crown alleged the accused failed to provide a suitable sample through feigned attempts and by verbal refusal.

The court found the Crown had not proven beyond a reasonable doubt that the accused intentionally failed or refused to provide a sample, nor that the accused unequivocally expressed an intention to refuse.

The accused was acquitted.

The defendant brought a section 11(b) Charter application seeking a stay of charges for impaired driving and exceeding the legal blood alcohol limit, alleging unreasonable delay in trial.

The defendant was charged on February 21, 2015, and the application was heard on November 2, 2016, representing a 16-month delay.

The court dismissed the application, finding that the delay was not unreasonable under both the pre-Jordan and post-Jordan frameworks.

The court attributed significant delay to the defendant's counsel's actions, including the decision to insist on a one-day trial slot rather than accepting a two-day slot or seeking an earlier date.

The court found no prejudice to the defendant and emphasized the societal interest in trying drinking and driving cases on their merits.

The parties cohabited for over thirteen years and jointly operated motel properties.

Following their separation, the trial judge awarded the respondent a half interest in the properties based on a joint family venture and unjust enrichment, as well as compensation for unaccounted joint account withdrawals.

The appellant appealed, arguing the properties were held on a resulting trust and disputing the financial contributions.

The Court of Appeal dismissed the appeal, finding ample evidence supported the trial judge's conclusions regarding the joint family venture, equal contributions, and the accounting of joint funds.

The accused was convicted after trial of operating a motor vehicle while impaired by alcohol causing death (two counts), operating a motor vehicle while impaired by alcohol causing bodily harm (four counts), and failing to comply with a recognizance.

The offences arose from a motor vehicle accident on August 29, 2010, on Six Nations Territory near Brantford, Ontario, in which the accused's impaired driving resulted in the deaths of two passengers and serious injuries to three other passengers and the driver of the other vehicle.

The accused was sentenced to six years imprisonment (with five months pre-trial custody credited), with concurrent sentences on the bodily harm counts and a 15-year driving prohibition.

The accused was charged with seven offences arising from a motor vehicle collision on August 29, 2010, on Six Nations Territory.

The charges included failing to comply with a recognizance, operating a motor vehicle while impaired by alcohol causing bodily harm (four counts), and operating a motor vehicle while impaired by alcohol causing death (two counts).

The court found that the accused was driving at excessive speed (100-120 kph in an 80 kph zone) while significantly impaired by alcohol (blood alcohol concentration between 66-144 mg/100mL), with defective vehicle brakes and tires, in foggy night conditions.

The other driver, who was also impaired, made a left turn into the accused's path.

The court convicted the accused on all counts, finding that his impaired driving was a significant contributing cause to the deaths of two passengers and injuries to three others.

The appellant appealed a Summary Conviction Appeal Court decision that set aside her acquittal.

The appellant argued her s. 10(b) Charter rights were breached because she misunderstood her right to contact her own lawyer rather than duty counsel at the roadside.

The Court of Appeal dismissed the appeal, holding that an unexpressed desire to speak to one's own lawyer, which is not conveyed to the investigating officer, cannot result in a s. 10(b) breach.

The Crown appealed the accused's acquittal on driving charges.

At arraignment, the Crown sought to amend the information to correct the make and model of the accused's vehicle.

The defence refused to consent, and the trial judge refused the amendment, citing prejudice.

The Crown offered no evidence, resulting in an acquittal.

The Court of Appeal dismissed the appeal, holding that while the trial judge erred in finding prejudice, she correctly refused the amendment because a court has no power under s. 601 of the Criminal Code to amend an information to conform to evidence before any evidence has been heard.