CITATION: R. v. Clarke, 2026 ONSC 4671
COURT FILE NO.: CR-22-91104738-00AP
DATE: 20260812
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DANIEL CLARKE
Appellant
Jeremy Mutton, for the Crown/Respondent
Daniel Clarke, Self-Represented, Appellant
HEARD: March 27 and April 15, 2026
REASONS FOR DECISION
de sa j.:
Background
[1] The Appellant, Daniel Clarke, was charged with one count of uttering a threat to cause death, contrary to s. 264.1 of the Criminal Code. He had a trial before The Honourable Justice Bergman of the Ontario Court of Justice on July 13 and 14, 2023.
[2] Prior to the trial, the Crown applied under s. 486.3(2) for counsel to be appointed to cross-examine the primary Crown witnesses. On November 29, 2022, Justice Myers heard the application. She inquired with Mr. Clarke as to his position on the granting of the order. While initially opposed, Mr. Clarke later agreed with the appointment of counsel. On this basis and on the basis of the application materials, Justice Myers granted the application and ordered the appointment of counsel.
[3] Only one of the witnesses testified for the Crown at the trial and was cross-examined by s. 486.3 counsel.
[4] The witness, Tracey Smith, testified that Mr. Clarke sent threatening emails, including emails with the following phrases:
(a) I’m going to find you and lay a beating on you for defrauding me. I expect you’ll call the police, but at this point, they won’t be able to help you.
(b) I’ll be out of jail before you’re back at it. If you open your eyes, you’ll realize how far you’ve pushed me and how little I give a fuck about the repercussions at this point. Bottom line is I’ll get you.
(c) Well, unfortunately, you think this is a joke, but first thing tomorrow morning I’m going to be heading to an Aviva with the intention of beating the hell out of whoever’s an employee. There’s a lot of violence that could have been prevented, but unfortunately you were too arrogant to see that…
(d) Keep your offers. I want blood now.
[5] Mr. Clarke testified in his own defence. His defence was that he made the threats but “with a reason”, namely, in order to force the company to call the police, take him seriously and close his insurance claim so that he could appeal the settlement. He was found guilty. He now appeals.
Analysis
- Section s. 486.3 Counsel’s Appointment
[6] The Appellant takes the position that the matter should be sent back for a new trial. The Appellant submits that the application judge erroneously reversed the onus and applied a presumptive test for the appointment of counsel which is not applicable for the offence for which the Appellant was charged.
[7] The Appellant was charged with an offence under s. 264.1. Section 486.3(3) provides for a discretionary test for witnesses of offences other than those listed in 486.3(2). Subsection (4) spells out factors the judge considers on an application under subsection (3).
[8] The record indicates that the application judge confused aspects of the mandatory test in s. 486.3(2) with aspects of the discretionary test, because she used the word “shall” to describe the application, but she also referenced consideration of the factors under subsection (4).
[9] The Appellant also submits that his s. 486.3 counsel was ineffective for three reasons:
(a) s. 486.3 counsel “was only presented” to the Appellant on the morning of trial;
(b) s. 486.3 counsel did not tender documents that the accused tendered in evidence;
(c) s. 486.3 counsel did not appear at the trial confirmation appearance.
[10] Having reviewed the record, I am satisfied that there was no substantial wrongdoing or miscarriage of justice that occurred. I am also satisfied that there was no meaningful prejudice to Mr. Clarke having regard to all the circumstances.
[11] Firstly, Mr. Clarke was not opposed to appointment of s. 486.3 counsel when the application was brought. While Mr. Clarke was initially against the appointment of counsel, when informed that the fact of the appointment would not be used against him, the record indicates he was content to have counsel assist.
[12] Second, I am satisfied that the trial judge considered the relevant factors in ordering the appointment of counsel.
[13] Moreover, there is no evidence on which to base a conclusion that s. 486.3 counsel fell below the reasonable standard expected of counsel appointed under that section.
[14] Counsel made clear that he had prepared in advance. Counsel and the Appellant were also given about two hours’ time to discuss and allow for the Appellant to convey what information he wished s. 486.3 counsel to put forward in cross-examination.
[15] Upon the parties’ return to court, the Appellant confirmed he had that opportunity; there was no suggestion from the Appellant that more time was required or that he was not prepared to proceed with the trial.
[16] The Appellant was aware an adjournment was available if he was not prepared to proceed. He did not seek one.
[17] I also see no merit to the Appellant’s claim that s. 486.3 counsel’s cross-examination was ineffective. In the context of the defence being advanced by the Appellant, there was nothing left to be asked.
[18] The Appellant was also not “forced” to testify to adduce documentation that s. 486.3 counsel did not put to the Crown witness. The documents he put in required authentication by a defence witness if they were going to be adduced.
[19] Finally, the Appellant’s defence of the charges was essentially an admission of the facts. It was, as he described at one point, “guilty with an explanation.” He maintains the same position on appeal.
[20] Accordingly, it cannot be said that had s. 486.3 counsel not been appointed and Mr. Clarke cross-examined Ms. Smith himself, that the outcome of the trial would have been any different.
[21] For the reasons above, the appeal is dismissed
Justice C.F. de Sa
Released: August 12, 2026
CITATION: R. v. Clarke, 2026 ONSC 4671
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
DANIEL CLARKE
Appellant
REASONS FOR DECISION
Justice C.F. de Sa
Released: August 12, 2026