R v Benito, 2022 ABKB 680

Court of King’s Bench of Alberta Citation: R v Benito, 2022 ABKB 680 Date: 20221014 Docket: 190808188Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Charles Jefferson Benito and Carlito Manansala Benito Accused Corrected judgment: A corrigendum was issued on November 10, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice Avril B. Inglis _______________________________________________________ Introduction

[ 1 ] Charles Jefferson Benito (“Charles”) and Carlito Manansala Benito (“Carlito”) are charged with 5 counts relating to employing a foreign national in a capacity that was not authorized under s 124(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 ; and related counts under ss 124(1)(

a) and (c), 126, and 127(a); and 1 count of mischief under s 430(4) of the Criminal Code , RSC 1985, c C-46 . [ 2 ] Now, both Charles and Carlito make an application for a stay of proceedings for a violation of s 11(

b) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ], pursuant to the principles set out in R v Jordan , 2016 SCC 27 . As well, Charles makes an application for the Court to appoint counsel for him or, in the alternative, to stay the proceedings until counsel is provided to him, following R v Fisher , [1997] SJ No 530, 1997 CarswellSask 821 .

Jordan Application [ 3 ] Charles and Carlito make a joint application for a stay of proceedings for the delay in getting this matter to trial. [ 4 ] In Jordan , the Supreme Court set out the basic framework for assessing whether there has been an unreasonable delay in getting a matter to trial. Specifically, the Court set a presumptive ceiling for delay of 30 months from the charge to the actual or anticipated end of a trial in the superior Court: at para 49. Any delay caused by the defence or waived by the defence does not count in calculating whether the ceiling has been reached: ibid .

However, once the ceiling has been reached, the delay is presumptively unreasonable, and the Crown bears the onus of justifying the delay: ibid at para 56. [ 5 ] Under the Jordan framework, if the total delay is above the presumptive ceiling, the Crown may still rebut the presumption that it is unreasonable by showing the presence of exceptional circumstances: ibid at para 68. Any time that can be attributed to a discrete exceptional circumstance can then be subtracted from the total delay: ibid at para 75.

Alternatively, the Crown can argue that the overall delay is reasonable, despite being above the presumptive ceiling, because the case is particularly complex: ibid at para 77. [ 6 ] In this mater, the information was laid on June 27, 2019, and the trial is set to run from October 2, 2022 to November 18, 2022. The parties agree that this gives a total time period of 41 months.

However, they differ on whether any time can be subtracted for defence delay in not being prepared to set trial dates; whether the 10-week Covid adjournment was a discrete exceptional event; and whether Carlito’s cancer treatment was a discrete exceptional event. Alternatively, the Crown argues that the delay is justified by the complexity of the case. They also say that by not having counsel, the Benitos made it impossible for the Crown to take steps to shorten the trial and thus reduce delay. I will deal with each of these issues in turn. 1.

Setting Trial Dates [ 7 ] The Crown argues that it was ready to set trial dates on November 14, 2019. The Crown further argues that it moved expeditiously prior to that point, having first released disclosure on August 19, 2019, which was prior to the first appearance in Provincial Court. As such, the Crown argues that the entire period from November 15, 2019 until April 17, 2020, when the matter was adjourned due to Covid, should be counted as defence delay. [ 8 ] Charles and Carlito argue that none of the time prior to when the first trial dates were set can be attributed to the defence.

They argue that this time was part and parcel of a multi-count information, considering disclosure issues and adjournments to seek counsel. Further, Charles took steps to resolve the matters in Provincial Court; and, while that eventually did not occur, he argues it is an example of his efforts to deal with the charges.

Also, notably, his file was joined with his co-accused’s first appearance in Queen’s Bench Arraignment Court and, thus, contrary to the Crown’s argument, caused no delay. [ 9 ] According to the Supreme Court in Jordan , defence delay occurs where the defence either directly causes the delay or the actions of the accused constitute a deliberate tactic to delay the trial: ibid at para 63. The defence will have caused delay if the Court and the Crown are ready to proceed, but the defence is not: ibid at para 64.

However, it is not defence delay if the defence is unavailable, and the Court and the Crown are also unavailable. As well, the defence is entitled to preparation time, even where the Court and the Crown are ready to proceed: ibid at para 65. Defence is also entitled to take legitimate actions to respond to the charges, such as bringing genuine applications and requests: ibid . [ 10 ] In R v Cody , 2017 SCC 31 , the Supreme Court confirmed that the determination of whether defence conduct is legitimate is highly discretionary and “by no means an exact science”: at para 31.

To make this determination, the Court can scrutinize both substance and procedure and can also consider the surrounding circumstances, including the timeliness of applications, the number of applications, compliance with filing and notice requirements, and the timing with respect to the Jordan ceiling: Cody at para 32 . Notably, inaction by the defence can amount to defence delay: ibid at para 33. [ 11 ] From the first appearance, on September 5, 2019, up to the Covid-adjournment on April 17, 2020, there were a number of appearances in both the Provincial Court and the Court of Queen’s Bench.

Date Charles Carlito Result Sept 5, 2019 Significant disclosure already provided First appearance First appearance Adjourned 4 weeks

Oct 4, 2019 Requests 3 weeks to review lengthy disclosure and resolution offer Requests 4 weeks to get counsel Adjourned 3 weeks Oct 24, 2019 Requests 2 weeks to consider the resolution offer Requests 3 weeks to be able to meet with counsel Adjourned 3 weeks Nov 14, 2019 Crown indicates they are ready to set trial dates. Agrees to go along with Carlito’s request to keep the matters together, is engaged in resolution discussions Requests at least 4 weeks for disclosure and to retain a lawyer Adjourned 4 weeks Dec 12, 2019 Set for

summary disposition on Jan 30, 2020 Requests 7 or 8 weeks for disclosure and to retain a lawyer Adjourned 4 weeks Jan 9, 2020 N/A Requests 4 weeks to deal with disclosure and discuss resolution Deemed election to Queen’s Bench, arraignment Feb 21, 2021 Jan 30, 2020 Breakdown of solicitor- client relationship, requests 2 weeks to find new counsel N/A Adjourned 2 weeks Feb 13, 2020 Requests more time to retain counsel and deal with disclosure N/A Deemed election to Queen’s Bench, arraignment Feb 21, 2021 Feb 21, 2020 Requests 3 weeks to obtain counsel Requests 3 weeks to obtain counsel Adjourned 3 weeks Mar 13, 2020 Adjourned to April 17, 2020 to set dates with counsel [ 12 ] The Crown concedes that the period until November 14, 2019 was legitimate time spent moving the matter forward.

However, after that point, the Crown argues the delay should be attributed to the defence, who made repeated requests for adjournments to retain counsel and to deal with a disclosure issue. [ 13 ] Of note, on November 14, 2019, Carlito asked for more time to deal with disclosure which had been provided in electronic form only. He indicated that he was computer illiterate, and the Crown confirmed that there was a Queen’s Bench Court Order prohibiting him from printing any third-party information. [ 14 ] At that same appearance, Charles agreed to go along with Carlito’s adjournment request.

However, when pushed, counsel for Charles indicated that he would probably also need an adjournment, although it might have otherwise been a shorter request. He said that his position was somewhere between the Crown’s preference for 4 weeks and Carlito’s request to go into January, which would be a further 4 weeks.

Given that the Court granted an adjournment of 4 weeks total, I infer that Charles was asking for an adjournment at least equal to what was granted. [ 15 ] I disagree with the Crown that, as of November 14, 2019, when they declared their own trial readiness, that immediately starts the time period which is attributable to the accuseds. Carlito’s request was predicated on issues with his computer skills and the electronic disclosure, and the Court Order directing him not to print was reasonable and not apparently made to be a delay tactic.

Charles’ counsel said that he would still need four weeks to make decisions in the face of Crown’s trial readiness and that is also reasonable and not an apparent delay tactic. [ 16 ] On December 12, 2019, Charles set the matter down for

summary disposition. This was a legitimate step in advancing the matter and does not constitute defence delay. However, I find that Charles is responsible for the subsequent 2-week adjournment to find new counsel. [ 17 ] On that same day, Carlito sought another lengthy adjournment to obtain counsel. This was his fifth court appearance. He should have been ready, with or without counsel, to make an election and set dates. On that date, the delay was created solely by Carlito until January 9, 2020, which I will deem as one month. On January 9, the Court deemed an election and adjourned Carlito to February 21.

That is a normal court proceeding and no delay between those two dates is attributable to Carlito; Charles’s disposition did not occur as planned, and he also was directed to the February 21 date, which is also not attributable to the accused. [ 18 ] The Crown argues that the time period from February 21, 2020 until April 17, 2020 should be counted as defence delay. Charles and Carlito argue that it is normal to have trouble securing counsel for a lengthy trial. [ 19 ] I agree with the Crown that, by this point, the delay is attributable to the defence.

By February 2020, Carlito had been trying to secure counsel since at least the appearance on October 4, 2019. Likewise, Charles had been trying to secure new counsel since the appearance on January 30, 2020. This goes beyond what is normally necessary to find counsel and, as such, the delay can be attributed to the defence. Delay attributable to each of them is February 21, 2020 to April 17, 2020, just shy of two months. However, the COVID adjournment happened midway through this period. As such I will only apply 1 month defence delay here.

[ 20 ] In

summary, by April 17, 2020, one and a half months delay is attributable to Charles and a two month delay is attributable to Carlito. 2. Covid Adjournment [ 21 ] A Master Order was released on March 20, 2020 from Chief Justice Moreau of the Court of Queen’s Bench in response to the growing COVID-19 pandemic. Alberta was in a declared state of emergency. The Master Order adjourned all out-of-custody criminal matters throughout the province. From April 17, 2020 to June 26, 2020, this matter was adjourned due to the Covid pandemic.

The Crown argues that this period should be treated as a discrete exceptional event and, therefore, subtracted from the overall delay. Jordan states at para 69 that: Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. [ 22 ] The accuseds disagree with this argument. They argue that there is no proof that the Master Order caused a delay in setting any dates.

They argue that R v Pettitt , 2021 ABQB 84 is differentiated here given that the effects of the COVID adjournments were described in great detail in that case, facts the accuseds say are not before this Court. [ 23 ] I agree with the Crown and Pettitt that the COVID adjournment of this matter in QBAC was an exceptional circumstance: it was unforeseen, and there was no way for the Crown or the Court to remedy the delay that resulted (see also R v Ghraizi , 2022 ABCA 96 at para 12 ; R v Clifford , 2022 ABQB at para 15; R v Parent , 2021 ABQB 66 at para 15 ; R v Harker , 2020 ABQB 603 at para 20 ). [ 24 ] Justice Renke in Pettitt made some fact findings that I cannot make here—for example, the steps this Court took to allow jury trials during pandemic measures; the timing of such measures; and the development of an online platform for remote appearances.

However, no formal steps could have been taken during the Master Order adjournment itself. The Benitos were in the same position as every other criminal matter in the system at that point, and it is not appropriate to suggest that steps to ease the effects of the Master Order should have been taken in the face of such an unprecedented and wide-ranging event. As a result, 70 days should be subtracted from the total delay. 3. Trial Adjournment [ 25 ] On February 28, 2020, Crown counsel took steps to have a case management justice assigned.

It appears that the key reason they took this step was due to the two accuseds’ continued status as being without counsel. They also cite various other concerns, including Jordan , stating that securing earlier dates was desirable. The Benitos were CC’d in the Crown’s letter to the Court. Justice Belzil was appointed, and he and the Crown initiated meetings starting July 27, 2020. At the June 26, 2020 arraignment date, the presiding Justice set the initial trial dates of February 21 to March 26, 2021 for trial with judge and jury.

Case management meetings began in earnest that summer. [ 26 ] The Crown argues that the original trial dates were then adjourned, because of Carlito’s illness, and that this constitutes a discrete exceptional circumstance. The Crown takes the position that the adjournment resulted from an e-mail that was sent from Carlito to Mr. Lintz and subsequently forwarded to the Court.

In that e-mail, Carlito says he would like to apply for a postponement of his case and attaches a letter from his doctor. [ 27 ] Charles and Carlito argue that the original trial dates were adjourned at the behest of the Court rather than either of the accuseds. They rely on the fact that Carlito did not formally apply for an adjournment and that, at the time, they were both represented by counsel who were not formally on the record.

They further rely on the fact that Carlito represented himself on February 26, 2021, which would have been part of the original trial dates, so he did not necessarily need the adjournment. [ 28 ] In addition, Charles and Carlito argue that there was not enough time for the original trial anyway and that the failure to

schedule enough time is the fault of the Crown. They specifically rely on the comments of Justice Belzil at the case management meeting on January 15, 2021 for the fact there was not enough trial time. They also argue that the Crown failed to take reasonable steps to mitigate the delay. [ 29 ] Charles also argues that he did not consent to the adjournment, because at the time his counsel did not have instructions. Charles also argues that the Crown had an opportunity at that point to ask for severance and declined to do so.

Finally, Charles argues that he did not give fully informed consent to the adjournment at the next appearance and that the bar for waiver has not been met. [ 30 ] Finally, in their updated argument filed after the original date for this application, the Benitos argue that the adjournment for Carlito’s medical treatment is not a defence delay but an exceptional circumstance. Further, the letter from the doctor that was attached to Carlito’s communication and that was provided to the Court through counsel suggests he would recover by some time in March of 2021.

The Benitos argue that the “exceptional discrete event” does not cause any delay at that point. a. Carlito’s Request for Adjournment [ 31 ] Charles and Carlito dispute that the adjournment was actually requested by Carlito. The Crown points to the e-mail authored by Carlito that indicates he wanted to adjourn the case and attaches a letter from his doctor. [ 32 ] At the appearance on January 14, 2021, Mr. Trela appeared for Carlito and Mr. Lintz appeared for Charles, even though neither was counsel of record. Mr.

Lintz raised a letter from Carlito’s doctor, saying that he was in cancer treatments and advising that he should not be doing anything until March. The Court put the matter over to the next day to discuss formally, and, although Mr. Lintz was not available, Mr. Trela offered to act as an agent for him. Carlito’s original e-mail saying that he wanted new trial dates had already

been provided to the Court. [ 33 ] On January 15, 2021, Mr. Trela appeared for Carlito and as agent for Mr. Lintz. The Court confirmed receiving the doctor’s letter. The Court then asked if Carlito or Charles was present, and neither was. The Court clarified that neither Mr. Trela nor Mr. Lintz would be willing to act as counsel for a jury trial and, after that, the Court said the trial needs to be adjourned because “[t]here’s no realistic way that this trial can proceed”.

I infer that this relates to both the request from Carlito that he not be required to start a trial in the midst of his cancer treatment recovery and that neither Benito had counsel of record, which was not what Justice Belzil had understood as of November 5, 2020. [ 34 ] On the record before me, I agree that the adjournment was clearly at Carlito’s request. At the time, Charles and Carlito could not appear before the Court, because they had Covid and were isolating. Mr. Trela and Mr. Lintz were appearing on their behalf, even if a formal retainer was not in place.

In any event, the e-mail from Carlito makes it clear that he was the source of the request for an adjournment. [ 35 ] As the Supreme Court explained in Jordan , it is within the experience of the trial judge to identify discrete exceptional events, but medical emergencies generally qualify: at para 72. I find that the adjournment was due to Carlito’s illness and that the illness was outside of the control of the Crown. If any errors occurred because of counsel appearing without having been formally retained or instructed, that is not at the feet of the Court or the Crown.

Neither Benito has made any correction to the record or complained in any way of the adjournment of the first trial. The argument that it was not a defence adjournment request is clearly baseless. b. Setting the Current Trial Dates [ 36 ] Charles and Carlito argue that the Crown failed to take reasonable steps to mitigate the delay caused by Carlito’s illness. They argue that the doctor’s letter indicated that Carlito would be well in March 2021, and thus was available for trial after that. [ 37 ] It is patently illogical to suggest the Court should have had dates starting around then.

As addressed below, a long trial takes time to schedule. [ 38 ] Further, the Benitos initially took the position that they wished to delay setting a trial date until after the Rowbotham application. Justice Belzil indicated that the trial was proceeding regardless of the outcome and indicated he would write the Chief Justice for dates, which is an uncommon step to take, and I infer he was seeking the earliest dates the Court could offer. Unfortunately, the details of this inquiry are not part of the court record.

I find the Court was aware of the effects of delay and appears to have taken some steps to address them. Unfortunately, the exact efforts made are unknown. [ 39 ] I am of the view that the Crown took many reasonable steps to move the trial forward throughout its time in court. They were timely with disclosure. They were clearly ready and asking to set dates as early as they could. The matter had been in case management since the Crown requested it on February 28, 2020. The Crown also consented to a possible re-election and drafted the documents for the accuseds.

The Crown also drafted a proposed Agreed Statement of Facts for Charles and Carlito to consider. They attended near-constant case management meetings throughout 2020 until the spring of 2022. [ 40 ] However, the record does not fully reflect a pursuit of earlier trial dates than October 3, 2022 Again, these may well have been the earliest dates the Court could provide, but the record is silent. When these trial dates were set, which were clearly outside of the Jordan ceiling, the Crown did not put anything on the court record to object or inquire further.

This is, I find, a small portion of the “defeatism” identified by the Court of Appeal in Ghraizi : at para 14 . In that case, the Court reminds us that “it was not enough for the Crown, once the ceiling was breached, to point to past difficulty.

The Crown also had an obligation to show it took reasonable steps to avoid and address the problem before the delay exceeded the ceiling”: at para 6. [ 41 ] The combination of the failure of the record to show exactly what efforts the Court or the Crown took to find trial dates earlier than October 3, 2022 leads to a finding that the Court and the Crown cannot show they took every step they could.

Yet, given the many other reasonable steps taken to drive this matter forward and get it to trial despite (as I note below) an ongoing lack of engagement by the accuseds, that does not leave me in a position to attribute much delay to the Court or Crown. It is certainly difficult to quantify what possible earlier dates could have been produced if further efforts had been made, if any at all. [ 42 ] In this case, the difficulty in finding earlier trial dates was most likely due to the length of the trial.

That length could have been reduced by concessions on continuity, a re-election, or an agreed statement of facts. However, Charles and Carlito chose not to or could not pursue this route. As a result, many of the efforts offered by the Crown that could have mitigated the delay, fell flat due to the positions of the Benitos, which they had the right to take.

That means, however, that the Benitos continued to be responsible for some of the delay after the first trial was adjourned. [ 43 ] Charles and Carlito argue that the original trial dates were not long enough, so the trial would not have been able to go ahead on the fist dates in any case. However, that does not appear to change anything. The original 5-week estimate was based on the Crown’s case. Neither accused gave an estimate of the length of their case, so if there was not enough time, it was their failure to indicate what would be needed, and this cannot be held against the Crown. c.

Charles’ Position [ 44 ] In his initial arguments, Charles argued that he did not consent to the adjournment. He pointed to the fact that the decision was made before he had a chance to state his position. He argued that his agreement to the adjournment does not meet the bar for waiver and, also, that the Crown failed to mitigate the delay by severing the trials. [ 45 ] In Jordan , the Supreme Court explained that the defence can waive a period of delay, which will not be counted in the total delay.

To do so, the waiver can be explicit or implicit, but, in any case, it must be clear and unequivocal: ibid at para 61. The accused person must have full knowledge of his or her rights, as well as the effect waiver will have on those rights. That said, what is being

waived is not the right itself, but the inclusion of a period of time in the assessment of the reasonableness of the delay in trying the charges: ibid . [ 46 ] At the appearance on January 15, 2021, Mr. Lintz joined the Court after the adjournment had already been decided, at which point he indicated he did not have any instructions from Charles with respect to the adjournment. At the next appearance, on February 10, 2021, the Crown asked Charles to confirm whether he wanted his matter to be adjourned along with his father, so that the trials would be heard together.

Charles confirmed that was the case. [ 47 ] Charles argues that the onus was on the Crown to sever the trials in order to mitigate the delay. However, given the fact Charles said he wanted his matter to be adjourned with his father’s, I do not think he can complain that the Crown did not apply to sever the trials. Regardless of whether he waived the delay, Charles clearly indicated his preference that the matters be heard together.

Moreover, this is supported by the conduct of the parties throughout these proceedings, who have approached their defences together, including in making this a joint application. [ 48 ] The Crown argues that where one accused falls ill, it is nevertheless a discrete exceptional event for all of the co-accused, citing R v Singh , 2016 BCCA 427 at para 83 . In R v Klassen , 2018 ABCA 258 , the Alberta Court of Appeal held that defence delay can only be held against the accused that caused the delay.

However, the delay can be treated as an exceptional circumstance for any co- accuseds if it meets the requirements for a discrete exceptional circumstance: at para 88. This appears to be the position taken by both accuseds in their written arguments filed as exhibits on October 3, 2022. As such, I do not consider the waiver by Charles any further and continue my analysis from an “exceptional circumstance” perspective. d. New Trial Dates [ 49 ] The Crown argues that Charles and Carlito were responsible for the entire delay from the adjournment on January 15, 2021 until the new trial dates.

The only exception is that the Crown concedes that the Court had new trial dates available in September, but the Crown asked for an October date instead, so the delay should only be counted until September. [ 50 ] Charles and Carlito argue that they were not responsible for the delay in setting the new trial dates, because Carlito’s Rowbotham application was a valid defence application and, moreover, the trial dates were set before the application was heard, so it did not matter anyway. [ 51 ] Charles also argues that his lawyer who was acting at the time had earlier dates available, so the delay in setting the new trial dates should not be attributed to him.

However, there was no record of when those dates were. [ 52 ] From January 15, 2021, the matter was adjourned until February 5, 2021 to set new dates. On February 5, 2021, the matter was adjourned for “preliminary discussions”. It is unclear what that means. On February 9, 2021, the matter was adjourned due to technology issues. On February 10, 2021, the matter was adjourned to allow Carlito to prepare a Rowbotham application. On February 18, 2021, the matter was adjourned to

schedule the Rowbotham application. On February 26, 2021, the matter was adjourned to March 12, 2021 to confirm trial dates and to April 6 and 7, 2021 to hear the Rowbotham application. On March 12, 2021, the matter was adjourned to March 26, 2021. Finally, on March 26, 2021, the matter was set for new trial dates. e. Effect of Trial Adjournment [ 53 ] The adjournment was sought by Carlito, due to his specific health concerns.

I agree that it is reasonable to adjourn a trial in the face of a medical letter indicating that a self-represented accused will be recovering from significant medical treatment throughout most of the time period. The adjournment was a discrete event that is properly described as an exceptional circumstance, particularly as it relates to Charles. [ 54 ] The question is how much of the delay between the first trial dates and the current dates is properly attributed to the overall delay.

I disagree with Crown counsel that all the time between the adjournment and these trial dates can be fully attributed to the defence or to an exceptional circumstance. That is because of the gap in the record about what efforts were made to secure earlier trial dates. For example, the first five-week trial, when there was no Jordan threat, was set on June 26, 2020 for February 22 to March 26, 2021. That was during the period when there was a backup of other files due to the Master Order COVID-19 adjournments. That is exactly nine months.

There is no explanation for why the second trial dates, scheduled to end on November 19, 2022 and set on March 26, 2021, were 20 months apart. Scheduling a longer trial might take a bit more time, but a 7-week judge and jury trial compared to a 5-week judge and jury trial should not be very different in their inherent delay. The nine-month period between booking the first trial and its dates was reasonable. The twenty months is unexplained. [ 55 ] I find that nine months of delay is attributable to the exceptional circumstance of Carlito’s cancer treatment. It is deducted from the overall delay in this matter. 4.

Complex Case [ 56 ] In the alternative, the Crown argues that there is an exceptional circumstance that makes the total delay reasonable, because of the complexity of the proceedings. In support of this position, the Crown points to the accuseds’ deemed election to proceed by judge and jury, the late Charter applications, the failure of defence to estimate the time needed for its case, the late request for a translator, the number of Crown witnesses, and the voluminous disclosure.

Further, it has proved impossible to exact any practical agreements from the accuseds, which they normally would be able to achieve if defence counsel were participating. [ 57 ] Charles and Benito argue that this is not a complex case: they point out that the Crown has argued so in both the Rowbotham and the Fisher applications. They rely on other cases that suggest the following factors that contribute to a “complex case”:

• Voluminous disclosure; • Large number of witnesses; • Significant expert evidence; • Charges covering a long period of time; • Number of pre-trial applications; • Novel or complicated legal issues; and • Multiple co-accuseds. [ 58 ] Relying on R v Wilson , 2017 ABQB 68 , aff’d 2019 ABCA 502 as an example of a complex case, the accuseds describe a trial that involved 80 police officers, 80 intercepted calls, five accused, conspiracy charges, wiretap issues, voice identification experts, firearms experts, hearsay applications, and cell tower triangulation evidence as a complex one. [ 59 ] In Jordan , the Court explained that a complex case is one where the nature of the evidence or the issues requires an inordinate amount of trial or preparation time, such that the delay is justified: at para 77.

Hallmarks of a complex case include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time: ibid . Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of a case: ibid . [ 60 ] This is a complex case, even if not as complex as the case in Wilson . There are two accused who are not represented by counsel, which carries a particular challenge to the Crown and the Court.

While the current indictment is now 6 charges, it addresses, as I understand it, many more discrete events that have now been joined to reduce to the number of charges before the jury. The charges under the Immigration and Refugee Protection Act are uncommonly tried before a jury. The disclosure is voluminous. It will be a long trial.

Given the history of the applications before this Court, it is reasonable to expect that other late applications with limited notice will be raised by the accuseds. [ 61 ] Having made the finding that this is a complex case, it is difficult to quantify delay caused by that which has not already been accounted for. Ultimately, I find that the effect of these factors supports the Crown’s continued intention to try these matters together, rather than severing the charges and conducting two trials.

As the Court said in Wilson, “the Jordan framework does not require severing proceedings in all cases” and “there may well be cases where severance would be appropriate to avoid some delay, but in other cases the interests of justice may dictate otherwise”: at para 37, citing R v Koruz , 1992 ABCA 144 . Here, due to these complexities and other factors, it is not. 5. Jordan Conclusion [ 62 ] The overall delay is 41 months. Clearly that is above the presumptive ceiling. However, summarizing the above results, I have found that the following deductions are applied to that delay.

Start Date Charles Carlito December 12, 2019 0.5 months 1 month February 21, 2020 1 month 1 month March 20, 2020 70 days (2 months, 10 days) 70 days (2 months, 10 days) March 26, 2021 9 months 9 months TOTAL 12.5 months + 10 days 13 months + 10 days [ 63 ] I summarize these dates for each of Charles and Carlito not because I find them responsible for each of these delays, but because there is a difference in one of the findings leading to slightly different deductions.

The deductions bring the total delay to just over 28 months for Charles and just under 28 months for Carlito. [ 64 ] This adjusted number is below the presumptive ceiling of Jordan . As such, it is the accuseds who must establish that the remaining delay is unreasonable. Many of the factors I considered above, in particular the complexity of the case, indicate that this case has not suffered unreasonable delay. Further, the defence has not argued (nor does the extensive record reflect) that either of the accuseds has taken meaningful and sustained steps to expedite proceedings.

The trial has not taken markedly longer than it should have – particularly with the backdrop of a complex file with an accused’s significant intervening illness, the effects of an unprecedented worldwide pandemic, and self-represented litigants. The Jordan application is dismissed.

Fisher Application [ 65 ] Charles Benito brings an application to this Court to appoint counsel for him or, in the alternative, to grant a conditional stay of proceedings until counsel is provided to him, relying on the decision in Fisher . [ 66 ] In Fisher , the accused wanted a lawyer who had represented him 30 years prior in a public inquiry into the circumstances behind the charges he was facing. However, Legal Aid Saskatchewan would not appoint the lawyer, because he was not a resident of Saskatchewan.

The Court held that in the unique circumstances of the case, the fairness of the trial required the Court to order the appointment of that particular lawyer.

[67] Since then, a Fisher application has developed into an application for the Court to appoint a particular counsel where fairnessrequires it or to appoint counsel where the accused cannot find competent counsel to represent him on the conditions imposed by LegalAid: R v Peterman (2004), (ON CA), 70 OR (3d) 481 (CA) at paras 29-30. In this case, Charles is making the lattertype of application.

His argument, received on October 3, 2022, begins by stating that this is some new iteration of Fisher, but I fail tosee his distinction. [68] In R v Cai, 2002 ABCA 299, the Alberta Court of Appeal set out the parameters for making a Fisher application. The Courtheld as follows. 1. Court-appointed counsel is not a right in every case, although the Charter may require it where counsel is essential for a fair trial: atpara 8. 2. To make a Fisher application, the accused must first have exhausted all possible avenues for legal assistance: at para 10. 3.

In making the application, the onus is on the accused to prove a real or substantial risk that without court-appointed counsel, thetrial will be unfair: at paras 6, 13. 4. Importantly, for a trial to be fair, an accused must be able to put forward his answer to the allegations against him. However, he isnot entitled to be represented by the “best around”: at para 18. [69] In deciding a Fisher application, it is proper for the Court to consider whether an accused has been diligent in retainingcounsel: R v Phillips, 2003 ABCA 4 at para 11.

When considering if the trial would be fair if the application was not granted, the Courtshould consider the circumstances of the accused, including the education, experience, and other abilities of the accused to conduct hisdefence, the nature of the charges and their seriousness, the complexity of the case, and the length of the trial: ibid at para 12. 1. Charles’ Position [70] Charles argues that he is not currently represented by counsel and that he requires counsel to have a fair trial in accordancewith ss 7 and 11(

d) of the Charter. [71] In support of this position, Charles points out that he has applied for Legal Aid and has a valid Legal Aid Certificate;however, he cannot find a lawyer who is willing to take the Certificate. Charles further relies on the current dispute between Legal Aidand defence counsel and the fact that various defence lawyer organizations in Alberta have stated they will not accept Legal Aidcertificates in serious and complex cases. Charles alleges that he has been diligent in seeking counsel.

In addition, Charles argues that hecannot represent himself at trial, because it will be lengthy and complex, and he has no legal education. [72] In support of his application, Charles swore three affidavits. In the first affidavit, dated September 13, 2022, Charles deposesthat he is 28 years old. He has a high school education and a certificate as an Immigration Consultant, which he received in June 2016.He is currently enrolled in the Plumbing Diploma course at NAIT. [73] Charles also deposes that he has contacted a number of lawyers and that none of them would take his case.

In addition to thelawyers that have appeared for Charles or were appointed through Legal Aid, he has contacted 16 additional lawyers. Two did notpractice criminal law, and two had conflicts of interest. Two were unavailable for the trial dates, one pointed to the Legal Aid strike, 8would not take the Legal Aid Certificate, and one was unable to take the case. [74] In his second affidavit, dated September 26, 2022, Charles deposes that he lost his Legal Aid Certificate on July 6, 2022,when they found he earned more than their monthly limit.

Charles reapplied the next month, and his Certificate was approved on August5, 2022. [75] Charles further deposes that he has e-mailed 29 lawyers and asked if they would represent him. Only 16 replied, of whom 12said they were not available for the trial dates or were otherwise unavailable. One lawyer was unable to take the file on short notice, onesuggested the Lawyer Referral Service, and one did not follow up past an initial exchange of contact information.

Only one lawyer saidhe would be able to run the trial, with an agreed statement of facts to reduce trial time for 6 days he would be unavailable during theallotted trial time. [76] In his affidavit, Charles asks the Court to appoint this lawyer, because having a lawyer for part of the trial is better thanhaving a lawyer for none. He further asks the Court to order payment at the lawyer’s normal rates of $200 per hour for trial preparationand $300 per hour for in-court time.

I note that with 33 days set aside, it would be more practical for Court to not sit on days when thatlawyer is not available. [77] This application, brought very late in the day after extensive case management, was to be argued on September 30. That is nota sitting day for this Court or a working day for Crown Counsel; however, it was the only day available prior to the trial, and thus it wasscheduled. Crown counsel provided their reply on September 29. Mr.

Benito then asked if he could have the weekend to further prepare. [78] In the interests of using time already set, Crown counsel agreed to argue on September 30 provided they could reply afterhearing from Mr. Benito on October 3. They did so. On October 3, Mr. Benito arrived in court with written argument and a new affidavitin hand.

I infer his new affidavit was meant to further bolster his evidentiary record having heard Crown counsel’s argument. [79] The third affidavit provides more information about his income as stated on his tax returns since the charges were laid andbetter outlines his efforts to obtain counsel, his assets, and his education history. In the afternoon of October 3, the defence counsel, whohad sent Mr. Benito an email indicating his availability for trial and the rates he required, appeared, and confirmed that the contents ofthe email were still correct.

He indicated that he would make his best efforts to prepare himself for trial by October 11, the first day ofthe second scheduled week of this trial.

2. Crown Position [ 80 ] The Crown argues that Charles is not entitled to ask for the Court to appoint a lawyer, when he had counsel who was willing to act and was available for the trial dates. The Crown relies on an e-mail exchange with Charles’ former counsel, who said that Charles wanted someone “more senior”. This occurred early in the proceedings. [ 81 ] Crown counsel specifically considered and chose not to ask to cross-examine Mr. Benito. The reasoning was tactical, as they argue it is the applicant’s onus to provide evidence. They do not wish to give him more opportunity to fill in the gaps.

Their reasoning is also practical: they recognize that cross-examination would likely lead to requests for documentary evidence from Mr. Benito, which would create further delay. They recognize that delay caused by Charles Benito’s late application is prejudicial to the Crown and to Carlito Benito. [ 82 ] The Crown also identifies significant gaps in the affidavit evidence of the accused, despite conceding the admission of a third last-minute filing on October 3. For example, they note that the applicant has provided information about job income but not any other sources of income.

He identifies small amounts of savings but no explanation for the large sum of cash – over $260,000 – that was returned to his own counsel early on in these proceedings. The Crown argues that the application falls short in establishing the indigency requirement factually. [ 83 ] The Crown argues that there is simply insufficient proof that Charles cannot hire a lawyer himself.

The Crown argues that a Legal Aid Certificate does not prove that Charles is indigent and that Charles has not provided any further information about his finances. [ 84 ] The Crown further argues that it would not be unfair for Charles to represent himself at this trial on the basis that the charges against him are not complex. Although there are many witnesses and the disclosure was significant, the Crown argues that the case is straightforward and likely to turn on the credibility and reliability of civilian witnesses.

The Crown is not relying on evidence seized pursuant to a search of Charles’ residence, and to the Crown’s knowledge there are no other live Charter issues. [ 85 ] The Crown also argues that Charles is more sophisticated than most accused persons. He has a post-secondary education, he has a professional qualification, and he has direct experience relevant to the allegations. Charles has good oral and written communications skills and has been able to represent himself in this proceeding so far.

In fact, the Crown relies on the written arguments produced by Charles Benito for both the Jordan and Fisher applications as evidence of Charles’ ability to represent himself. He identifies in this written argument the key issues in this trial, including cross-examination, document management, hearsay, closing argument, and management of exhibits.

Crown counsel say that this shows he can identify deficiencies in his knowledge and has shown the ability to educate himself on those issues. [ 86 ] Crown counsel also identifies that the Court has an ongoing gatekeeping function to provide some direction and limited assistance to an accused who is representing themselves. [ 87 ] Finally, the Crown argues that this application is effectively an application for an adjournment, given how close it is being brought to the trial dates. Even if Charles were successful, his lawyer would need time to prepare for the trial, which would require an adjournment. 3.

Analysis [ 88 ] I agree with Crown counsel that the evidence provided by Mr. Benito fails to establish that he is unable to hire his own lawyer. Being approved by Legal Aid is insufficient to establish this. Bare assertions of limited income and assets that are untested by the Crown carry very little weight. Mr.

Benito first raised the issue of requiring an order that Legal Aid should pay more so that he can hire a lawyer in early 2022: had he followed through with his application then, the Crown would have been in a position to receive and investigate his information, as well as request further proof. [ 89 ] The court record shows that Charles Benito was present for at least some of the Rowbotham proceedings conducted by his father Carlito.

The focus of that hearing was his father’s inability to self-fund counsel; many of those details are relevant to this accused as well, and Charles failed to address any of those issues in his affidavit. In particular, there has been prior judicial focus on the $260,000 in cash that was seized from the Benito residence and returned to Mr. Charles Benito. Justice Belzil ruled that Mr.

Carlito Benito needed to provide a better explanation for those funds, and it was not offered then by Carlito or now by Charles. [ 90 ] Further, the fact that Charles had counsel provided by Legal Aid at one point is evidence that, when dealt with in a timely fashion, a Legal Aid-funded lawyer was attainable for this trial. Mr. Cameron Mitchell was appointed on March 5, 2021 and withdrew on June 30, 2021. This was because Darin Sprake “was asked if he could represent me”, and Mr. Benito changed counsel. This change of counsel is not otherwise explained. Unfortunately, Mr.

Sprake had accidentally double-booked these trial dates and withdrew in November 2021. Another counsel was appointed in January 2022 but withdrew in February as he also could not be available for the trial dates. Other efforts are described in Charles’ September 13, 2022 affidavit, but no dates are provided of when Mr. Benito made those efforts. [ 91 ] Mr. Benito’s October 3 affidavit outlines his communications starting on September 20, 2022 to obtain counsel. He attaches many reply emails from lawyers he says he contacted. Many of them, notably, indicated that they are unavailable for the trial dates.

Given the timing, this is not surprising. Of 36 counsel asked after September 20 if they could represent Mr. Benito in a seven week trial starting on October 3, only one is willing to try to prepare in that time and is free . [ 92 ] The affidavits also fail to identify what legal aid rates are. They fail to identify if he made any efforts between February 2022 and September 20, 2022. The attached e-mails refusing to take the file do not provide much explanation, nor does Mr. Benito include the email information he sent to each lawyer such that this Court can know on what basis these lawyers refused the trial.

[ 93 ] The Court must take delay into account. While Mr. Benito has contacted many defence lawyers, to say that he has done so late is a minimization. Mr. Benito complained that nobody told him about the possibility of a Fisher application. However, he does not explain how he has come to this argument now. The issue of delay to complete the trial was raised repeatedly through the court appearances, such that he cannot argue he didn’t know about Jordan applications.

Yet, that was also brought very late in the proceedings without explanation for the delay. [ 94 ] Several (but not all) counsel in the September 2022 emails indicated that they were not taking Legal Aid files due to the ongoing job action against Legal Aid by some defence counsel in Alberta. None of those counsel indicated that were it not for the job action they could take the file. Ultimately, while the timing of this application and the job action are similar, one does not affect the other. [ 95 ] Crown counsel is also correct that Mr. Benito has shown an ability to represent himself.

He has provided the Court significant materials in a short period of time. He has shown attentiveness in court, including notetaking and the ability to ask clarifying questions. Mr. Benito also has shown flexibility and responsiveness; most notably, after he heard the Crown’s arguments on Friday, he prepared a new and more complete affidavit in an attempt to perfect his application. Ironically, that is a factor against him as I consider this factor. He has not shown that counsel is essential to a fair trial for himself. [ 96 ] In some areas where I note a lack of evidence, there are explanations offered in Mr.

Benito’s brief. Except for the information about Mr. Sprake taking over for Mr. Mitchell, I deliberately attempted to not rely on his evidence that is in affidavit form. 4. Fisher Conclusion [ 97 ] Mr. Benito has not established that he exhausted all possible avenues for legal assistance. That is a basic initial requirement of his application. He clearly contacted many lawyers but doing so in the few weeks prior to a trial does not meet the requirement our Court of Appeal outlines in Cai . As one lawyer responded accurately to Mr. Benito’s inquiry: “This is more than the eleventh hour. This is 11.59.

You are not going to find a lawyer who can handle this matter on such short notice unless you find someone who just had a trial of the same length collapse and is already familiar with the offence as charged. It sounds like there is also an immense amount of disclosure, so really this theoretical lawyer would have to be available from today to middle of November with no other files that need attention. That just isn’t going to happen.” That is a fair assessment of Mr. Benito’s late efforts and the effect it has had on his ability to obtain counsel. [ 98 ] Further, Mr.

Benito does not offer sufficient explanation of why he has been unable to hire a lawyer from his own resources. I note that one counsel in reply to Mr. Benito’s inquiries recommended “I would recommend gathering some resources from family and friends to retain counsel.” That is good advice and properly raises the issue of an avenue that Mr. Benito has not proved he has exhausted. [ 99 ] Mr. Benito has also failed to prove that the trial will be unfair if he represents himself. I have already found that there are factors that make this trial complex when considering the issue of delays in scheduling.

Those findings apply here. Clearly, this is not a simple shoplifting trial. However, it is also not foreign to Mr. Benito in subject area. As Crown counsel commented, his professional certification is as an immigration consultant. All the charges before the Court are immigration related. That is an additional factor that mitigates against granting the application. Coupled with a consideration of the able materials produced so far, I find that he is capable of representing himself quite well. [ 100 ] The Fisher application of Charles Benito is dismissed.

Heard on the 30 th day of September, and 3 rd day of October, 2022. Dated at the City of Edmonton, Alberta this 14 th day of October, 2022. Avril B. Inglis J.C.K.B.A. Appearances: Dane Bullerwell, Erin Eacott, and Alex Bernard for the Crown Carlito Benito and Charles Benito

on their own behalf _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice Avril B. Inglis _______________________________________________________ Corrected the front page by switching the Crown to be listed above the Accused