R v Biever, 2015 ABQB 705

Court of Queen ’ s Bench of Alberta Citation: R v Biever, 2015 ABQB 705 Date: 20151130 Docket: 130443914Q1; 130443914Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Clinton Biever Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Table of Contents I Introduction . 2 II Authorities Cited by the Parties . 3 III Law .. 3 IV Analysis . 4 A March 20, 2013 - June 9, 2014 . 4 1 Chronology . 4

2 Reasons for Delay. 6 B June 9, 2014 - April 2015. 8 1 Chronology. 8 2 Reasons for Delay. 10 C April 2015 – present 11 1 Chronology. 11 2 Reasons for Delay. 11 D Conclusion on Reasons for Overall Delay. 12 E The Significance of the Issue of Access to Legal Materials. 13 F Prejudice. 15 V Conclusion. 16 I Introduction [1] Clinton Biever (the Applicant) was arrested in March 2013. Two separate informations were sworn in Edmonton andCalgary on March 20, 2013. A replacement information combining the two informations was sworn on April 18, 2013.

As a result of asuccessful severance application, his Calgary trial is now set for November 2015, and his Edmonton trial is anticipated to commence inMay 2016. [2] This Court previously ruled that the Applicant was entitled as a Remand Centre detainee to access legal materials over theInternet and, in particular, CanLII. [3] The Applicant now alleges breach of his s. 11(

b) Charter right to be tried within a reasonable time, and applies for a stay dueto the delay in his access to certain legal materials. [4] The Crown acknowledges that the length of the period between the charges being laid and the trial date calls for an inquiry. [5] For the following reasons, I conclude that there has been no breach of the Applicant’s s. 11(

b) right. II Authorities Cited by the Parties [6] Mr.

Biever cited the following authorities in support of his Askov application: R v Antinello, 1995 ABCA 117, 165 AR 122;R v O’Connor, (BCCA); and R v MacPherson, 2015 ABCA 139. [7] The Crown cited the following authorities: R v Morin, (SCC), [1992] 1 SCR 771; R v Koruz, 1992 ABCA144; R v Sapara, 2001 ABCA 59; R v Askov, (SCC), [1990] 2 SCR 1199; R v Allen, (SCC), [1997] 3SCR 700, aff’g (1996), (ON CA), 92 OAC 345; R v Dallin, 2013 ABQB 615, leave denied 2014 ABCA 99; R vChorney, 2008 ABPC 32; R v Naslund, 2014 ABPC 35; R v Schertzer, 2009 ONCA 742; R v Rutherford, 2012 ONSC 2969; R v Levy,2011 ONCJ 334; R v Anderson, 2013 SKCA 92; R v NNM (2006), (ON CA), 209 CCC (3d) 436 (ONCA); R vFreeland, 2010 ABQB 799; R v Yelle, 2006 ABCA 160; R v Dias, 2012 ABQB 680; R v Dias, 2014 ABCA 402; R v Edgar, 2013 ABPC72; R v Caines, 2011 ABQB 82; R v Chan, 2003 ABQB 759; R v Mahmood, 2012 ONSC 6290; R v Duhamel, 2012 ONSC 6448; R vIgnagni, 2013 ONSC 5030; R v Tran, 2012 ONCA 18; R v Lahiry, 2011 ONSC 6780; R v Cheverie, 2014 ABQB 364; R v CD, 2013ABQB 45; R v Tran, 2007 ABPC 123; and R v Lyth, 2013 ABPC 280.

III Law [8] Generally, if fourteen to eighteen months have passed without a trial in superior court, the question of unreasonable delaymay arise, as affirmed in R v Godin, 2009 SCC 26 at para 6, [2009] 2 SCR 3. [9] The Supreme Court in R v Morin, (SCC), [1992] 1 SCR 771, [1992] SCJ No 25 at para 31 provided thefollowing framework of issues to assist courts in analyzing delay and balancing the interest of the accused and society in a prompt trialwith the interest of society in bringing the accused to trial: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for delay, including

a. inherent time requirements of the case; b. actions of the accused; c. actions of the Crown; d. limits on institutional resources; and e. other reasons for delay; and 4. prejudice to the accused. [ 10 ] The Supreme Court in Morin at paras 44 and 46 rejected blame as a relevant factor; rather the question is what caused the delay. IV Analysis [ 11 ] The length of delay from the laying of charges to the Applicant’s Calgary trial is approximately 32 months. There is no suggestion that the Applicant expressly waived any time periods in relation to the Calgary trial.

However, he has waived any time periods resulting from severance of the Edmonton charges. [ 12 ] A review of the chronology since the charges were laid shows that there have been two ongoing processes throughout most of the legal proceedings: 1. the Applicant’s early and subsequent persistent and consistent requests for access to various legal resources; and 2. his attempt to retain counsel satisfactory to him. [ 13 ] The Applicant’s requests for access to legal materials continued whether he was represented by counsel or not.

A March 20, 2013 - June 9, 2014 1 Chronology [ 14 ] The Applicant was represented by counsel from an early stage following his arrest, by Kent Teskey in Edmonton and Andrea Urquhart in Calgary. Both were on the record for him. [ 15 ] By early June 2013, he was unrepresented. He sought an adjournment at a docket appearance on July 3, 2013, on the basis that he was in the process of retaining Tom Engel. [ 16 ] On the return date of August 1, 2013, the Applicant was still unrepresented. A fitness assessment was ordered.

He conducted his own unsuccessful bail hearing on August 19, 2013. [ 17 ] No counsel appeared again in court for him until Akram Attia appeared at the first Queen’s Bench appearance on October 4, 2013. [ 18 ] Adjournments occurred until November 22, 2013, with no trial date being set. At the November 22, 2013 QBAC appearance, trial dates were offered for a two week trial starting on February 10, 2014 or March 24, 2014, but Mr. Attia was unavailable. He withdrew at or immediately following that appearance.

The Applicant expressed concern that counsel were “slowing him down”. [ 19 ] The matter was adjourned to December 13, 2013 on the anticipation that the Applicant would re-elect to judge and jury. At that appearance, nothing was accomplished, although the Applicant expressed concerns about not having full access to the courts. He was unable to access a commissioner for oaths and he wanted a copy of the warrant for committal.

The matter was adjourned for him to get counsel. [ 20 ] At the next appearance date, January 17, 2014, he indicated that Lisa Trach was “looking at the file”, and he requested an adjournment to February 21, 2014 to allow time for Ms. Trach to review his file. [ 21 ] On February 21, 2014, Gates J. was in QBAC. He inquired about the Applicant’s intention to get counsel. The Applicant requested a “pretrial conference” where he would “address the Charter issues of not having access to legal materials”. [ 22 ] Following consultation with the trial coordinator, a two week trial was set for June 9, 2014.

A pretrial conference was set for March 20, 2014. That pretrial conference date had to be adjourned because of a conflict with Gates J.’s schedule, and it was rescheduled six weeks hence to April 28, 2014. It should be noted that the Applicant had previously indicated that he did not require a preliminary inquiry and he was looking for a speedy trial. [ 23 ] The pretrial conference process began before Gates J. on April 28, 2014. The Applicant again raised issues of access to legal materials.

It is clear that until then, no meaningful efforts had been made to give the Applicant access to any legal resources other than perhaps a copy of the Criminal Code . On April 28, 2014, Crown counsel, Ms. Downey, advised of her efforts to make materials

available to the Applicant at the Remand Centre, although her position was that “full answer and defence goes to the ability to review the disclosure and no further”. [ 24 ] It was clear that the Applicant was aware of and wished to raise Charter issues relating to police trespassing on his property and the stop and search of his vehicle on March 20, 2013.

He was also expressing concerns about the jurisdiction of the Court, referencing an argument that the Queen had not been properly crowned and that affected the validity of all legislation, including the Criminal Code . [ 25 ] Gates J. clearly explained to the Applicant that he had to file a Charter notice in order for his concerns to be addressed. Ms. Downey agreed to provide him with a precedent for a Charter notice. Shortly after that appearance, Ms. Downey provided a blank form for the Applicant’s use but did not “draft” a Charter notice for him. [ 26 ] Ms.

Downey advised that a DVD of Western Canadian Cases was being considered by the Remand Centre. [ 27 ] A further pretrial conference with Gates J. was held on May 15, 2014. The Applicant raised the issue of severance of the Calgary charges from the Edmonton charges. Ms. Downey expressed concern about the feasibility of the scheduled trial date, having regard to the Applicant’s need for materials and his intended motions.

There was a discussion about potentially releasing the Applicant so that he could access legal materials himself. [ 28 ] On May 16, 2014, the Court denied release and gave the Applicant the option of a Legal Aid lawyer to do research. He rejected that option. The Court also proposed that the Crown provide the applicant with legal materials downloaded onto a laptop. The Applicant specified what he wanted in terms of materials, and the Crown indicated that a hearing would be required to resolve the issue. [ 29 ] The pretrial conference was adjourned to May 21, 2014. On that day, Mr.

Dube, representing the Solicitor General, advised that the DART materials and Watt’s Manual on Criminal Evidence had been ordered for the Remand Centre and were expected to arrive by about the end of May, 2014. An annotated copy of the Criminal Code was also available to the Applicant, as well as materials provided by his family. [ 30 ] Between May 21, 2014 and the commencement date of the trial, June 9, 2015, there were other pretrial conferences or communications involving the Applicant, Ms. Downey and Gates J.

These included discussions about the Applicant contacting Legal Aid for assistance with research, and his ability to conduct the trial, as he had been assaulted by an inmate and had a broken jaw. [ 31 ] My involvement as the assigned trial judge began with a pretrial conference on June 6, 2014, which was scheduled after a QBAC appearance on May 30, 2014 where it appeared that the Applicant was not prepared for trial, but did not want an adjournment. [ 32 ] As at June 6, 2014, the Applicant was unrepresented. He had yet to file any Charter notices.

I directed on Friday, June 6, 2014 that the Applicant provide written applications for the remedies he was seeking. He provided four handwritten applications on June 9, 2014. That would have been the commencement date of the trial. Those handwritten notices have been treated as Charter notices. [ 33 ] I recognize that the Applicant was concerned in June 2014 about delays. While it was obvious that an adjournment was necessary, he did not want to make the application himself for fear that an adjournment application would have the resulting delay “charged” to him.

I assured him that the adjournment and new trial date would not prejudice his ability to raise any delay issues accrued to date. 2 Reasons for Delay [ 34 ] It is remarkable that no trial date was set until February 21, 2014. It is more remarkable, having regard to Court of Queen’s Bench resources, that a two week trial was available for June 9, 2014, some three and a half months later. [ 35 ] Regardless of what had occurred to that point, had the trial proceeded on June 9, 2014 (less than fifteen months from the date of the charges) the question of unreasonable delay would not have arisen.

The reality, however, is that setting a June 2014 date in February 2014 turned out to be unrealistic, having regard to a number of factors: 1. the Applicant was self-represented; 2. he had gone through a number of lawyers to that time; 3. he was raising a number of Charter issues (trespass on his property, seizure from his vehicle); 4. he was raising severance issues; 5. he was raising frivolous arguments about the jurisdiction of the Court and the status of the monarchy; and 6. he had been given no meaningful access to legal resources so that he could prepare his defence and prepare required applications to bring Charter and other issues properly before the Court. [ 36 ] Apart from a one month delay when the pre-trial had to be adjourned, the only factor resulting in delay which was attributable to the actions of the Crown was its position on access to legal resources.

It is clear from my subsequent decision on access to legal resources that the Applicant was entitled to (at a minimum) access to CanLII. Access to that particular resource was not provided to him outside of the courthouse until June 2015. [ 37 ] Before that date, the Crown’s position was that its disclosure duties did not include provision of legal materials; accused persons at the Remand Centre could avail themselves of the Remand Centre library, and there was no duty to provide access to further legal information. Any materials supplied by the Crown were done so gratuitously.

[ 38 ] The Applicant argues that but for his inability to have access to CanLII, he would have been able to properly defend himself as he would have either had counsel (because he would have had the ability to verify counsel’s advice himself), or he would not have needed counsel because of his access to legal resources. He would not have wasted time on the jurisdiction issue because he would have been able to research it and learn that it was not a valid or reasonable argument. [ 39 ] The Applicant raises good points in this regard. However, the argument misses some basic fundamentals about legal defence.

One can learn about the law by reading law books, statutes and reviewing case law on sites such as CanLII. But one cannot learn to be a lawyer in that fashion. [ 40 ] One of the main causes of delay in this case was the absence of adherence to process required in criminal matters. Self- represented litigants are not exempt from following the rules. Accommodations may be made, and self-represented litigants are frequently held to a lower standard than are counsel in relation to procedural matters and the quality of forms and precedents.

But they are not exempted from compliance in some fashion or another, particularly where the Court has provided specific direction. [ 41 ] Here, the Applicant ignored directions from the Court to put his concerns or applications in writing rather than simply raise them orally in docket court, QBAC or during pre-trial conferences. [ 42 ] I recognize that there is a Catch-22 aspect to this. The Applicant cannot be faulted for not providing appropriate and timely Charter notices because of the complexity of these issues.

But his success in getting access to legal resources depended on making an application for such relief. That application was not made in writing until the first-scheduled trial date on June 9, 2014. The Applicant maintains that he could not make the necessary application because he was being denied access to the legal resources he needed to make the application.

However, the Applicant also references disappointment with counsel during this initial period for failing to follow his instructions to prepare Charter and other notices for him. [ 43 ] As noted above, the Applicant was represented by counsel until the beginning of June 2013. He had received disclosure around that time. There was no delay in any meaningful respect to that time. He was unrepresented in June 2013, but was reviewing disclosure himself. He sought an adjournment from July 3, 2013 to August 1, 2013 in order to retain counsel.

No counsel having been retained by August 1, 2013, the matter was adjourned to October 4, 2013. [ 44 ] Although the Applicant was unrepresented from August 1, 2013 until October 4, 2013 when the matter went to QBAC, some things were nonetheless accomplished between June 2013 and October 2013. Those included disclosure and waiver of the preliminary inquiry by the Applicant so that the matter could proceed directly to a Queen’s Bench trial. That occurred within six and a half months from the charges being laid. [ 45 ] The Applicant was represented from October 4, 2013 to November 22, 2013.

But for the unavailability of Mr. Attia, the trial might have been set as early as February, 2014 (11 months from the charges). However, Mr. Attia got off the record on November 22, 2013. It was not clear on November 22, 2013 whether the Applicant intended to seek new counsel. [ 46 ] Although the Applicant was unrepresented from November 22, 2013 until June 9, 2014, during that period he sought an adjournment for five weeks from January 17, 2014 to February 21, 2014 to have new counsel look at the file. [ 47 ] Essentially, from the time of the charges on March 20, 2013 until Mr.

Attia withdrew on November 22, 2013, the Applicant was represented by counsel for most of the time. Although he may distrust counsel’s judgment, he cannot attribute delay during those periods to a lack of access to legal material while he was represented, as he had access to the knowledge and research of experienced legal counsel. The major cause of delay was the Applicant’s frequent change of counsel during that period.

The Applicant is responsible for virtually all of the delay during that period. [ 48 ] After November 22, 2013, there was some delay until February 21, 2014 because the Applicant appeared to be looking for counsel. There was also some institutional and inherent delay.

But the main reason for any lack of meaningful progress was the failure to make the necessary pretrial motions, and the Applicant’s continued search for counsel acceptable to him. [ 49 ] While the Crown was certainly put on notice from the time of his first appearance that the Applicant wanted access to legal resources, the Applicant did nothing procedurally appropriate to have obtain an order to that effect.

His inability to find counsel willing to draft notices for him or to bring applications he wanted brought (in particular the frivolous jurisdiction argument) cannot be attributed to any action on the part of the Crown. The Crown could not draft motions for the Applicant. Nor is the Court required to completely waive the requirement for proper Charter applications in the case of self-represented accused. [ 50 ] The Applicant was certainly at a disadvantage because of his decision to self-represent, his lack of legal knowledge, and his lack of legal experience in drafting appropriate pleadings and documents.

However, it is overly simplistic to suggest that the trial would have proceeded on June 9, 2014 if the Applicant had been provided access to CanLII at any time prior to that date. [ 51 ] From the start of the pre-trial process before Gates J. on April 28, 2014 until my involvement at the beginning of the first scheduled trial on June 6, 2014, steps were being taken to provide access to legal resources. From June 6, 2014, the issue became the adequacy of resources and not the availability of resources.

Indeed, my decision of May 12, 2015 and the arguments leading to it focused almost exclusively on access to internet resources such as CanLII, email and Quicklaw, as some hard-copy and computer loaded legal resources had already been provided at the Remand Centre. [ 52 ] My conclusion is that up until the time the first formal application for access to legal materials was brought in early June 2014, any delay occasioned by the Applicant’s lack of access to legal resources should not be characterized as Crown or institutional delay.

For this initial period, the delay is explained by the inherent time requirements of the case, and the Applicant’s own actions. In fact, the main reasons the June 9, 2014 trial was adjourned were the on-again off-again appearances of various counsel and the Applicant’s failure to start the application process with some form of notice, even after he was advised to do so and was provided with a blank form.

[ 53 ] While the Applicant cannot be faulted for not appreciating his remedies and the process necessary to obtain his remedies, I find that no significant delay during this period is attributable to the Crown. B June 9, 2014 - April 2015 1 Chronology [ 54 ] The trial scheduled for June 9, 2014 was adjourned. The Applicant made an application challenging the jurisdiction of the Court, including an application for an adjournment to research the issue.

Court on that date provided the Applicant with access to CanLII on a laptop in a secured cell at the courthouse. [ 55 ] On June 10, 2014, George Isshak appeared on behalf of the Applicant. He requested an adjournment to review disclosure and to provide the Applicant a further opportunity to access CanLII. He indicated that Dino Bottos would be appearing the next day. The Applicant indicated that he would be abandoning his jurisdictional argument and rejected any further use of CanLII at that time. [ 56 ] On June 11, 2014, Mr. Bottos went on record and applied for an adjournment to prepare.

He confirmed that there would be no argument on jurisdiction. The Applicant had not yet made the necessary Charter applications relating to exclusion of evidence based on alleged breaches of his ss. 8 and 10(

b) rights. [ 57 ] The matter was sent to QBAC for the setting of a new trial date. Mr. Bottos was then representing the Applicant. He was on the record until June 27, 2014. [ 58 ] There were discussions involving Peter Royal’s office on July 25, 2014. The Applicant indicated then that he wanted a junior lawyer fresh out of law school. The matter was adjourned until September 26, 2014. At that time, it was still unclear if Mr.

Royal was going to be acting, as he appeared to have a certificate from Legal Aid. [ 59 ] At this stage, there were concurrent issues involving a s. 525 review and a habeas corpus application by the Applicant, so various appearances occurred in QBAC. [ 60 ] On September 26, 2014, the Applicant raised issues regarding severance, disclosure, lack of access to legal materials, and requested re-election to judge and jury. The Crown asked whether or not the Applicant was going to be represented by counsel, indicating on the record that if he continued to be self-represented, she would make an amicus application.

The matter was adjourned. [ 61 ] On October 10, 2014, the Applicant brought a habeas corpus application which was adjourned so that sufficient time could be set aside to hear it. [ 62 ] On October 24, 2014, it was confirmed in QBAC that Mr. Royal would not be acting for the Applicant on the trial. [ 63 ] On November 6, 2014, the Applicant applied for habeas corpus . On November 7, 2014, the application was denied. [ 64 ] On November 14, 2014, the Crown confirmed her consent to re-election.

The trial date was set for two weeks starting on April 13, 2015. [ 65 ] When the Applicant was again unrepresented by counsel in late November or early December 2014, Ms. Downey became concerned about the feasibility of the April 2015 trial dates because the Charter applications had not been scheduled, heard and decided. Re-election to judge and jury, severance and admissibility of evidence issues had yet to be determined. [ 66 ] The Applicant appears to have been unrepresented from October 24, 2014 until December 15, 2015, when Nathan Whitling appeared before me with the Applicant.

On that date, there was discussion regarding whether there was sufficient time between then and April 13, 2015 for all necessary matters to be completed. As Mr. Whitling had just been retained, the matter was adjourned to January 21, 2015. [ 67 ] On January 21, 2015, the Applicant discharged Mr. Whitling. To move the matter along, Ms. Downey brought the application to have an amicus appointed. The matter was adjourned to January 30, 2015 to

schedule Ms. Downey’s application for the appointment of an amicus . [ 68 ] On January 30, 2015, the Crown reiterated the intention to apply for an amicus . The Applicant advised that George Lebessis may be retained, so the matter was adjourned to February 6, 2015 in QBAC. Mr. Lebessis advised on that date that he was unwilling to represent the Applicant, but would assist the Applicant with the amicus application. The matter was adjourned to February 27, 2015 for the amicus application. The Applicant opposed the application.

The Court granted it. [ 69 ] Adam Badari was appointed as amicus on March 19, 2015. [ 70 ] The matter was adjourned by me to QBAC for March 27, 2015 to set a new trial date, having regard to the appointment of Mr. Badari and the need for various pre-trial applications (including the application for access to legal resources) that obviously could not be completed before April 13, 2015.

The trial was adjourned to November 29, 2015. 2 Reasons for Delay [ 71 ] Had the trial proceeded in April 2015, it would have been within two years from the time the charges were laid, which would not have caused too much concern from an Askov perspective, even absent any meaningful contribution to such delays by the Applicant. [ 72 ] Ultimately, the delays from June 2014 until the Applicant became self-represented again in February 2015 are mainly

attributable to difficulties caused by the Applicant relating to changes in counsel and attempts to find counsel. None of that is attributable to the Crown. Had the Applicant, either himself or through counsel, scheduled any of his applications, they could easily have been heard without any delay prior to the April 2015 trial dates. Nothing the Crown did delayed the scheduling of any applications. [ 73 ] There were undoubtedly elements of institutional and inherent delay between June 2014 and April 2015. However, although there was plenty of time between June 2014 and March 2015 for motions relating to the Applicant’s ss. 8 and 10(

b) rights, scheduling those motions was impractical if not impossible during those periods when the Applicant was represented by counsel, until counsel could determine their availability to prepare and argue motions. During the period while the Applicant was represented by counsel, or actively seeking counsel, his applications (including his application relating to access to legal materials) remained on hold. [ 74 ] As was the case with the first period, there were a number of delays resulting from the hiring and firing of counsel by the Applicant.

In the interim, the Applicant was back in the Catch-22 situation of having to prepare complicated legal arguments with limited access to legal materials. His application relating to full answer and defence leapt to the forefront, but had not been scheduled because of the on-again off-again appearances of counsel representing him or adjournments so that the Applicant could retain counsel. [ 75 ] It was not until February 6, 2015 that the Applicant appeared to be without counsel and not actively seeking counsel.

No delays occurred between February 6, 2015 and the present because of Applicant’s hiring and firing of counsel. [ 76 ] The Crown had long been concerned about the viability of the April 2015 trial date, and it brought an amicus application on February 27, 2015. Mr. Badari was appointed on March 19, 2015. He was unavailable for trial commencing April 13. [ 77 ] It is true that the April 2015 trial date adjournment resulted from the appointment of an amicus .

There was certainly institutional delay inherent in the process of appointing an amicus , especially as there was difficulty in finding (through Legal Aid) someone able and willing to take such an appointment. [ 78 ] However, having regard to the broader picture, I conclude that the adjournment of the April 2015 trial date fundamentally resulted from the Applicant’s continued search for counsel.

He essentially had counsel, or was in the process of dismissing counsel, looking for new counsel and retaining new counsel, continuously from June 2014 until February 6, 2015. [ 79 ] It is theoretically possible that the April 2015 trial date could have been maintained, but for the amicus’s availability. That would have required applications for severance, access to legal materials and the exclusion of evidence to be scheduled, argued and decided between February 6, 2015 and April 13, 2015.

However, it is doubtful that all of the necessary applications and decisions could have been made within that time frame in the best of circumstances. These were not simple, straightforward applications. [ 80 ] In the end, the trial date of April 19, 2015 was adjourned mainly because of attempts by the Applicant to retain counsel, and delays resulting from the appointment and then discharge of counsel.

C April 2015 – present 1 Chronology [ 81 ] Ultimately, severance issues were dealt with in late April 2015, resulting in the Crown consenting to severance if the Applicant waived any further resulting delay, re-election to judge and jury, and the November 2015 trial being moved to Calgary to deal with the Calgary matters.

The Edmonton matters were put over to QBAC to be scheduled, and eventually May 2016 dates were reserved for those charges to be tried in Edmonton. [ 82 ] Once it was clear that the Applicant was not likely to be represented by counsel, the long-awaited application for access to legal materials was set to be heard during the time initially set for the trial. The access to legal materials application was argued on April 22 and 23, 2015 using some of the scheduled trial time. My decision was delivered on May 12, 2015. The Applicant was granted some of the access he sought but not all.

It took until June for the Remand Centre to provide the ordered access. [ 83 ] The Applicant’s application relating to alleged Charter breaches was heard from June 22 to 24, 2015. Argument on the evidence was heard on September 4, 2015. I announced my decision on that application on October 25, 2015 and will hand down a formal decision shortly. 2 Reasons for Delay [ 84 ] Once Mr. Badari was appointed, there was an element of institutional or inherent delay in attempting to match Ms. Downey’s, Mr. Badari’s, court resources and my

schedule with the needed two weeks for trial. By this time, the Applicant was to some degree hostage to my, Ms. Downey’s and Mr. Badari’s schedules. It should be noted that I was the assigned trial judge and my

schedule for the period January through June 2015 had been set in late November 2014. None of that is attributable to the Applicant. There is a nine week period which can be characterized as institutional delay. [ 85 ] Once the Amicus was on board, the matter moved forward in a relatively expeditious fashion. Severance, re-election, venue and access to legal materials were argued in late April 2015. My decision on access to legal materials was delivered on May 12, 2015. The Applicant was granted some of the access he sought, but not all.

The delay of some thirteen weeks between the time the application was set and a decision was made on it is inherent delay. [ 86 ] The application relating to alleged Charter breaches was heard on June 22 to 24, 2015. Argument on the evidence was heard on September 4, 2015. I announced my decision on that application on October 25, 2015 and will hand down a formal decision shortly. [ 87 ] There was some inherent delay or institutional delay as noted. I attribute no delay to the Crown beyond some portion of 12 weeks relating to the access to legal materials application.

In any event, only nine weeks of this delay was arguably on the critical path

towards the April 19, 2015 trial date. I have determined that the vast majority of the delays resulting in the adjournment of the April 19, 2015 trial are due to the Applicant’s own actions. D Conclusion on Reasons for Overall Delay [ 88 ] This case is readily distinguishable from R v MacPherson , 2015 ABCA 139 , upon which the Applicant relied heavily in this application. In MacPherson , the Court of Appeal upheld the trial judge’s imposition of a stay of proceedings with respect to an accused charged with two bank robberies. The in-custody accused had pressed for an early trial date, but institutional delays including the availability of court time and the Crown prosecutor’s

schedule resulted in a period of twenty and a half months elapsing from arrest to the anticipated date of sentencing. [ 89 ] At first blush, the similarities between this case and MacPherson are striking: an incarcerated accused asking for a speedy trial and waiting for twenty months or more for his trial date.

The Applicant’s charges are similar, he has remained in custody, and it will be nearly 33 months from the date of the Applicant’s arrest before he will be sentenced if convicted at the upcoming trial. [ 90 ] However, in upholding Acton J.’s decision on the Askov application brought at the commencement of the trial, the Court of Appeal in MacPherson commented on the proceedings below at paras 24 and 37: [24] It is important to emphasize the unique circumstances of this case: Mr.

MacPherson remained in custody during the entire period of delay and, as the trial judge found, his actions throughout were consistent with a desire for an early trial date. As well, there were no adjournments, disclosure issues or other intervening motions that caused delay after the preliminary inquiry dates were set. Despite efforts to reschedule, the system could not accommodate an earlier preliminary inquiry. Although Mr. MacPherson made several pre-trial applications after the matter had been transferred to the Court of Queen’s Bench, these motions did not delay the trial.

As he was prepared to have junior counsel with significant availability represent him, it appears he took advantage of the earliest available trial dates based on Crown and courtroom availability. [37] In the end result, we agree with the trial judge that the period of institutional delay was unreasonable in these particular circumstances. Mr. MacPherson acted throughout in a manner consistent with a desire for an early trial date. No actions on his

part caused the delay. As a presumptively innocent man detained in pretrial custody throughout 16 months of institutional delay, he suffered significant prejudice. While there is a strong societal interest in having serious charges such as these tried on their merits, there is also societal interest in ensuring that accused persons do not spend unreasonably lengthy periods of time in pretrial custody. In the circumstances of this case, the length of institutional delay was unreasonable. [ 91 ] The Applicant’s situation is entirely different.

He was responsible for virtually all of the adjournments and delays up to February 2015. Crown and institutional delays have occupied only a small fraction of the overall time. It is true that there were other factors which would have resulted in delay on their own. However, as the Court of Appeal reasoned in R v Alcantara , 2015 ABCA 259 at para 333 , [2015] AJ No 883, had the other factors been removed and only the actions of the Applicant remained, the delay would also remain.

E The Significance of the Issue of Access to Legal Materials [ 92 ] The Applicant attributes significant delay to the Crown due to its refusal to provide legal materials. [ 93 ] The Applicant initially requested (or demanded) access to legal materials at the time of his first appearance. However, he brought no applications of any kind in relation to access to legal materials until June 2014. Ms. Downey began attempting to get some materials for the Applicant in late April 2014, while maintaining that she was under no obligation to do so.

Gates J. encouraged the process through the case management that continued from April 28, 2014 until I became involved as trial judge on June 6, 2014. At that time, it was clear that what had been provided to the Applicant to that date (including DART) was still not satisfactory to him. [ 94 ] The Court did have the opportunity to take a number of other steps during the proceedings pending the Applicant’s application for legal materials. Initially, the Court addressed concerns by directing a fitness assessment.

Concerns were then addressed by encouraging the Applicant to retain counsel, and to contact Legal Aid for research or other resources. At one point, the Court arranged for access to CanLII in the courthouse. [ 95 ] The Applicant alternated between wanting to be represented by counsel and wanting to represent himself.

My understanding is that the Applicant continues to work with or through Legal Aid to find counsel to represent him at the upcoming trials in Calgary and Edmonton. [ 96 ] The Applicant opposed the application for appointment of an amicus , but I believe with hindsight he now realizes that appointment has assisted his defence, and while he continues to represent himself, he has certainly represented himself more effectively since the Amicus has been appointed than he could have done otherwise, even with the assistance of the resources the Court ordered be provided to him. [ 97 ] For whatever reason, until the Applicant was compelled by me to put his concerns in writing (failing which the trial would have commenced on June 9, 2014 in the absence of any Charter applications), he chose to reject the advice given to him by the courts in terms of applying for access to legal resources. [ 98 ] In my decision dated May 12, 2015 ( R v Biever , 2015 ABQB 301 ), I held that the Applicant’s s. 7 rights would be violated prospectively if he was not provided access to the legal resources specified in my decision.

I did not make any finding that the Applicant’s s. 7 rights had been violated to the date of my decision. That was left for further determination. [ 99 ] In my view, there is no constitutionally mandated blanket obligation to provide particular legal resources in Remand Centres,

and my decision should not be interpreted as a finding that the Charter requires Remand Centres to make legal certain materials available to all detainees. [ 100 ] However, the Applicant did demonstrate to my satisfaction on a balance of probabilities that because of his unique circumstances, he required access to some legal resources beyond those generally available so that he could make full answer and defence. [ 101 ] The Applicant faces very serious charges and is in jeopardy of a lengthy term of imprisonment if convicted. Lack of fitness had been ruled out.

He was interested in researching the law himself and was clearly not content to entrust his defence to the lawyers he had retained. I was satisfied that he had sufficient skills or education to make such access meaningful. He suffered from no impediment which limited his ability to access legal resources on his own. I was satisfied that he was not simply trying to be difficult or looking for some form of entertainment. He is obviously intelligent and literate and capable of understanding legal principles and court decisions.

By the time of my decision, he had demonstrated a level of comprehension at least equal to a law student, and had demonstrated written communication skills in the form of applications and written arguments. He demonstrated on a balance of probabilities that he has the ability to make use of the resources he sought. [ 102 ] I was also satisfied that his defence did not turn only on factual disputes. He demonstrated that he has serious Charter issues to be determined (as described in my earlier decision).

Significantly, he also demonstrated that legal representation would not, for reasons somewhat unique to him, be sufficient to enable him to make full answer and defence. That was shown by his distrust of the legal profession, his determination to control his defence rather than be controlled by his lawyer, and his inability to maintain an ongoing relationship with any one of a considerable number of experienced defence counsel. [ 103 ] It should be noted that the Applicant sought access to significantly more resources than I directed.

He sought interprovincial and international legal directories, email access so that he could communicate with counsel and others, and access to Westlaw and Quicklaw/LexisNexis commercial databases. [ 104 ] From the information before me, it is clear that the courts and Legal Aid have gone to extraordinary lengths to attempt to satisfy the Applicant’s requests. The Remand Centre makes available some basic legal resources, as noted in my decision, and together with the Crown provided a number of additional resources to the Applicant.

During the application, I heard evidence relating to security concerns regarding internet access at the Remand Centre, as well as evidence concerning budgetary, space and staff restrictions. [ 105 ] I concluded that in the Applicant’s circumstances at the time, he only reasonably needed and was thus required to be provided with access to CanLII and facilities to print out the results of his searches.

I do understand (anecdotally) that the Remand Centre has provided several other detainees with access to CanLII, similar to the access given to the Applicant. [ 106 ] In my view, the Applicant’s requests for access to information were not and could not be satisfied until a court had ruled on his particular needs. Ultimately, any entitlement of Remand Centre detainees to access any legal resources beyond what has been provided must be determined on a case-by-case basis.

Further, legitimate institutional concerns must be addressed whenever an institution such as the Remand Centre is asked to do something that it is not already doing. Those institutional and legitimate government resource concerns must be considered and weighed in the process. [ 107 ] In my view, until the Applicant demonstrated his particular need to the Court’s satisfaction on a properly initiated application, the state had not breached the Applicant’s right to make full answer and defence.

Until there was an appropriate application with evidence, there was no opportunity in this somewhat unusual case for the Court to determine, or for the Crown to know, if any or all of what the Applicant was requesting was reasonably necessary for his own defence.

As the Court’s decision to order provision of additional legal resources was based on the Applicant’s peculiar circumstances, it was up to him to establish the reasonableness of his requests, and his need for the requested resources. [ 108 ] There is no doubt that this prosecution has been delayed because of the Applicant’s inability to access legal materials sooner than he did. It is clear to me that this prosecution was going nowhere until the amicus was appointed and the issue of legal materials was determined.

However, I do not see that the Crown can be faulted for any delays in the Applicant making the appropriate application to seek to enforce his request. The Crown was not required to draft an application for the Applicant. Nor was the Court (at any level, or at any stage of the process) required to waive the procedural requirements of making an application. [ 109 ] I am mindful of R v Dias , 2014 ABCA 402 , 588 AR 102 in which the Court of Appeal held that the time involved in a successful Charter application should not be held against the accused.

The Court also held at paras 14 and 15 that the time for an unsuccessful Charter challenge by the accused counts against the accused. [ 110 ] Here, once the Applicant made his application, he met with rather limited success. [ 111 ] In my view, an accused should not be able to “bank” applications, nor should the law encourage such conduct. An accused who is aware of Charter arguments should bring them forward in an appropriate way at an appropriate time. [ 112 ] In this case, the Applicant could have brought the application much earlier.

He was advised to do so, and was assisted to the extent possible in terms of what was required. I find that had he made the application in a timely fashion, there would have been no substantial delay beyond that which occurred as a result of the numerous changes in defence counsel. As a result, the Applicant cannot complain of any delay in obtaining access to the resources ultimately ordered by this Court. F Prejudice [ 113 ] Some prejudice to the Applicant can be presumed from the delay in this case. He has been in remand centres (mainly in Edmonton) since March 2013.

He will likely remain in custody awaiting his trial on the Edmonton charges until at least mid-May 2016.

[ 114 ] The Applicant testified that he had been particularly upset by delays in December 2013. He voluntarily assigned himself to administrative segregation because he was concerned about his stress levels around Christmas of that year. Apart from that period, which occurred relatively early in the Applicant’s detention, there is nothing noteworthy about his pre-trial detention apart from its length. [ 115 ] I have concluded that most of the delay in the proceedings was caused by the actions of the Applicant.

The complexity of this matter arose mainly as a result of the Applicant’s distrust of the legal profession and his determination to try to represent himself on difficult Charter applications. Having considered his prejudice, I find that there is nothing extraordinary about it that would tip the balance in favour of a stay in this case. V Conclusion [ 116 ] In the result, the application for a stay of proceedings due to breach of s. 11(

b) is dismissed. [ 117 ] In my analysis of the factual matrix, I was greatly aided by the submissions of Mr. Badari, the Amicus . His work on this matter has been of great assistance to the Court and, I believe, has similarly benefitted Mr. Biever. Heard on the 23 rd day of October, 2015. Dated at the City of Edmonton, Alberta, this 6th day of November, 2015. Robert A. Graesser J.C.Q.B.A. Appearances: Carrie-Ann Downey for the Crown/Respondent Adam Badari amicus Clinton Biever on his own behalf