R v Beckow, 2023 ABCJ 141

In the Alberta Court of Justice Citation: R v Beckow, 2023 ABCJ 141 Date: 20230620 Docket: 210183679P1 Registry: Calgary Between: His Majesty the King - and - Alexandra Beckow Decision of the Honourable Justice P.J. Mason Introduction [ 1 ] The Accused, Ms. Beckow was charged with a single count of fraud in Alberta on Information 191205178P1 in November 2019 (“the Original Information”). She initially pled not guilty, and a trial date was scheduled for October 2020. That first trial was adjourned at the request of Ms. Beckow.

A subsequent trial on the matter was set for March of 2021. [ 2 ] After further police investigation, Ms. Beckow was arrested in British Columbia in March 2021 and charged with a fraud against the public and related offences pursuant to Information 210183679P1 (“the Second Information”) here in Alberta. It would appear that other charges, stemming from the same allegations, were also laid in British Columbia (“the BC Information”) because the offences could be said to have occurred in both jurisdictions. She then appeared on the Second Information, in custody, in Alberta in March 2021.

The second trial date on the Original Information was adjourned, as required by Ms. Beckow. [ 3 ] Between the Original Information and the Second Information, Ms. Beckow has had four counsel (Bourdon, Roper, Moore, and Browne). [ 4 ] Counsel for Ms. Beckow scheduled a sentencing hearing for April 2022 on the Second Information.

[ 5 ] That hearing was eventually adjourned until May 2023, again at the behest of Ms. Beckow. Pursuant to that objective she entered guilty pleas to certain counts on the Second Information on June 2, 2022. [ 6 ] In late March 2023, Ms. Beckow sought to adjourn the May 2023 hearing again. That application was rejected by another Judge of the Provincial Court of Alberta. However, an adjournment of the May dates has occurred because of Ms. Beckow’ s attempt to re-elect to the Court of Kings Bench. [ 7 ] In late April 2023, Ms. Beckow, through counsel Mr.

Browne, sought to have this Court find that pleas were not entered on June 2, 2022. Further, he also sought to have this Court find there could be no hearing scheduled for May 2023 and, accordingly, to allow Ms. Beckow to re-elect to a Judge alone trial in the Court of King’s Bench without a preliminary inquiry pursuant to a Notice of Re-Election filed on April 17, 2023 (“the Application”). No viva voce evidence was called, and the Court heard argument on April 28, 2023. [ 8 ] The Crown opposed the Application and asked the Court to reject the Notice of Re-Election.

Accordingly, the Court concluded that they were not consenting to the re-election. The Crown also argued that the pleas were valid, the Court should not strike the guilty plea and the Notice of Re-Election could not proceed. [ 9 ] Defence position was that, as of right, Ms.

Beckow could re-elect, there was no need to strike the guilty plea as it had been deficient, and the Court did not have jurisdiction to proceed. [ 10 ] As will be seen from a more detailed review of the factual chronology below, all charges in Alberta and BC had been consolidated onto the Second Information and that matter was brought before this Court approximately a week before the scheduled 5- day sentencing hearing in the Alberta Court of Justice set for early May 2023.

This Court was assigned to hear that 5-day sentencing hearing. [ 11 ] For the reasons set out below, I find that – regardless of the plea situation – the Accused did not have the right to re-elect at this late stage. Further, in the absence of an application to strike the pleas, they remained in place and the sentencing hearing will take place as scheduled now on September 25-29, 2023.

By virtue of scheduling by the Court as an institution, my assignment as the Judge hearing the sentencing hearing, hearing this Application and another scheduling issue discussed below, this Court is properly seized of the matter. [ 12 ] Due to an unforeseen scheduling change, the Court delivered a necessarily brief oral decision in a busy continuous docket court on May 5, 2023, and indicated that more fulsome written reasons would be supplied. These are those reasons. Factual Chronology [ 13 ] On the Original Information, through Ms. Bourdon, Ms.

Beckow entered a not guilty plea, and the matter was set for trial in early October 2020. [ 14 ] In early September 2020, the trial date was vacated, and a disposition date was set for October 21, 2020. [ 15 ] Ultimately, due to a loss of contact with her client, Ms. Bourdon got off the record in late September 2020. Ms. Beckow appeared on the scheduled disposition date and adjourned the matter to get new counsel. [ 16 ] Mr. Roper came on the record in November 2020. In mid-January 2021 the not guilty plea was confirmed, and a new trial was set for March 31, 2021. [ 17 ] In mid-March Ms.

Beckow was arrested in Surrey BC on a Canada wide Warrant for charges set out on the Second Information. Concurrently, charges were laid in British Columbia on the same facts, the BC information. [ 18 ] After a contested show cause, with Mr. Roper as counsel, Ms. Beckow was released on March 31, 2021. The second trial date, on the Original Information, would appear to have been vacated because of the arrest and show cause. [ 19 ] In August of 2021, Mr. Roper, set dates for March 18-April 1, 2022, for a Gardiner Hearing on the Second Information. [ 20 ] In January 2022, Mr.

Roper withdrew as counsel, again because of communication issues. [ 21 ] In February 2022, Ms. Moore came onto the record as the third counsel. In early March 2022, Ms. Moore adjourned the Gardiner hearing dates scheduled for March/April 2022 because she could not be prepared in time. In April 2022, Ms. Moore set new hearing dates for May 8-12, 2023. [ 22 ] On June 2, 2022, Ms. Beckow and Ms. Moore both appeared in court via the telephone, in part to allow Ms. Beckow to avoid the time and expense of attending in person from her residence in British Columbia. At that time, Ms.

Moore – in the virtual presence of Ms. Beckow – elected trial by Provincial Court Judge (as it then was) and guilty pleas were entered to two charges. After entering the election, Ms. Moore stated the following: “…Ms. Beckow has given me instructions to enter a guilty plea to that count…” [ 23 ] The Court Clerk confirmed that a guilty plea was entered on count 1 on the Second Information. One of the charges was amended to expand the date range of the offence and a plea was accepted on that charge too. No facts were read in. Section 606(1.1) was not canvassed on the record.

The Original Information was withdrawn as that offence was incorporated in the offences on the Second Information on which the pleas were entered. This was in accordance with the agreement between counsel. The Gardiner hearing dates in May 2023 were confirmed.

[ 24 ] In addition to the election, amendment to charges, withdrawal of information, and confirmation of guilty pleas, a brief pre- trial Conference was held on the record wherein Ms. Moore agreed to a large number of witnesses for the Crown being allowed to testify by video link at the Gardiner hearing. Ms. Beckow was present and confirmed her intention to follow through with the Gardiner hearing. [ 25 ] Additionally, Ms. Moore stated on a pre-trial conference (“PTC”) form as follows: “Ms. Beckow admits to the vast majority of allegations, however, disputes total losses incurred.” [ 26 ] In mid-January 2023, Ms.

Moore indicated she was having trouble contacting to her client. By the end of January 2023 Ms. Moore went off the record. [ 27 ] In early February 2023, Mr. Browne, the fourth lawyer for Ms. Beckow, came on record and confirmed his availability for the hearings scheduled in May 2023. There was no indication that there was any change in the plans of what would happen in those hearing dates. [ 28 ] An appearance was made by Mr. Browne via Webex as agent and Counsel for Ms. Beckow on February 16, 2023, in docket court.

He stated that the guilty pleas had been entered, the facts were not established, the hearings were scheduled to prove facts, and he concluded: “I anticipate this stuff being worked out, Sir.” [ 29 ] He went onto reference the fact that there were a concurrent set of charges (the BC Information) relating to the same Accused, complainants and circumstances. He confirmed the plan to have the Crown amend the Second Information to include the allegations covering the Second Information and the BC Information and add those allegations into the guilty plea and Gardiner hearings scheduled for May 2023. Mr.

Browne said that this change to the Second Information was necessary to deal with the impending trial on the BC charges. The idea was that Alberta would take all the charges, the BC Information would be withdrawn, and no trial would take place there. [ 30 ] Mr. Browne and Ms. Beckow made a second appearance on the following day, February 17, 2023. Mr. Browne appeared via Webex for the appearance; Ms. Beckow appeared by telephone to accommodate her situation, avoid the cost and expense of travel, and expedite matters in the face of the fast-approaching May 2023 hearings.

Due to communications issues in the court that day, without Ms. Beckow on the line, Mr. Browne stated. “I’ve discussed this with Ms. Beckow. No admissions have been made, so I haven’t been able to satisfy 606(c) (sic) of the Code , but I – I have satisfied 606 as – as best I can. And – and she’s – she is in agreement, and we – with the amendment”. [ 31 ] Ms. Beckow was then brought back on the telephone later in the session and it was at that point she confirmed her consent to what had been agreed between counsel.

As a result, the amendments to charges were by formalized by the Crown, this time to include the related fraud offence being prosecuted in British Columbia. The British Columbia charges had a trial date set for March 8, 2023, and Mr. Browne confirmed that the BC Information would be withdrawn as per this agreement between counsel. Again, this was to benefit of the Accused so that she did not have to litigate in two separate jurisdictions and avoided that earlier trial date. No formal s.606(1.1) process was done with Ms. Beckow during this appearance. [ 32 ] Disclosure was sent to Mr.

Browne in early March 2023. [ 33 ] An application to adjourn the May hearing dates was made before Judge Van Harten (as he then was) on March 30, 2023. I have reviewed the FTR recording of that hearing and that application was predicated on the voluminous disclosure provided, the fact that 49 witnesses were being called by the Crown, and Mr. Browne’s inability to be properly prepared for those hearings in May 2023. The Crown was opposed to his application. Judge Van Harten denied the application based on the history of the file. [ 34 ] The Notice of Re-Election was filed on April 17, 2023.

The application to uphold the Notice was brought before this Court because, as I understand it from our internal processes, I was assigned to conduct the May 2023 Gardiner hearing. [ 35 ] Counsel appeared before this Court on April 28, 2023 to argue the Notice of Re-Election issue. [ 36 ] The Court adjourned the matter until May 5, to provide a decision on the Notice of Re-Election and, potentially, whether the guilty plea ought to be struck or declared invalid. Analysis of the Factual Chronology [ 37 ] Ms. Beckow has been charged with numerous offences over time.

As noted above, throughout a protracted process of arrest, charge, re-arrest, additional charges and consolidation of offences from different jurisdictions, Ms. Beckow had changed counsel multiple times. At various points during this protracted process, with the assistance of these various counsel, she had entered pleas of not guilty to some charges, changed her pleas to guilty to some charges, had some charges amended, had other charges consolidated, and older Informations withdrawn pursuant to agreements some of her counsel had made with the Crown. Ms.

Beckow’s decisions to change counsel so often caused most of the delay in this case. [ 38 ] Certainly, the pandemic had an effect on the delay as well. Additionally, the pandemic caused a sea change in how the Courts had to operate. As a result, Courts were more accommodating of allowing matters to proceed in the absence of an Accused and/or virtually. The stresses of that time frame are rapidly receding from memory, but it was a time of enormous upheaval and an alteration of long-established practices.

[ 39 ] Further, technology was being deployed that was not up to the task many days – how many times did the Webex fail or someone’s cellphone dropped – and the Court was dealing with enormous lists coming out of the suspension of out of custody trials. There is little doubt in my mind that this backdrop had an indirect effect on how this case was allowed to proceed. It also factored into how this Court assessed the chronology and the steps taken. [ 40 ] As mentioned above, Ms.

Beckow changed counsel (Bourdon, Roper, Moore, and Browne) four times. [ 41 ] The first counsel set the Original Information for trial in early October 2020. Counsel would, presumably, have obtained instructions to enter the not guilty plea and set this date. I say presumably because, despite being offered the chance to make an application to strike her pleas and to call evidence on that application, Ms. Beckow chose not to give her side of the story in the torturous history of this protracted process or call previous counsel who were involved at various points throughout.

That was her right, but it left this Court with an absence of evidence where it would, perhaps, be most useful. Accordingly, the Court has reviewed the record, and relied on the logical inferences to be drawn from such actions to aid in its’ determination. [ 42 ] The October 2020 trial was later vacated in early September 2020, and a disposition date was set for mid to late October 2020. The setting of disposition date was an indication that the plea would be changed to a guilty plea. Counsel would not make such a move without proper instructions. It appeared that Ms.

Beckow had changed her mind in determining the matter of guilt or innocence. This was not an unusual occurrence. Once counsel and client have had the opportunity to discuss the evidence found in disclosure, advice has been given, and clients have given their instructions on how to proceed, the course of criminal proceedings often deviate from their initial pathway. [ 43 ] Unfortunately, counsel lost contact with her client and went off the record in late September 2020. Ms.

Beckow appeared on the scheduled disposition date, which was an indication that she and the original counsel must have had some communication about the hearing after the disposition date was set. Ms. Beckow adjourned the disposition date to get new counsel. The Court was not made aware of what Ms. Beckow’s representations were at that hearing. [ 44 ] The second counsel came on the record in November 2020. By mid January 2021, he must have received some instructions from Ms. Beckow as he confirmed her not guilty pleas and set the matter for trial a second time with dates found in late March 2021.

Given the backlog of court cases from the pandemic this was an exceedingly quick turn around. It would appear that Ms. Beckow had changed her mind a second time. Again that, in and of itself, could not be considered unusual. Different counsel can view cases differently and, accordingly, provide substantially different advice. [ 45 ] That late March 2021 trial was, it seems, impeded by Ms. Beckow’s arrest on the newer charges in March 2021, and her detention pending a show cause hearing on March 31, 2021. That was the scheduled trial date which appeared to have been vacated – either on the day or shortly before.

It was somewhat difficult to discern all of the complications caused by her arrest and detention, but the addition of multiple new allegations and potential complainants appeared to have altered the nature of the case from a supposed one- off matter to allegations of a more complex and persistent course of conduct. [ 46 ] Not surprisingly, Crown and Defence counsel likely determined that it would be better to deal with all the allegations at once. The second counsel was able to secure Ms.

Beckow’s release and he was then in a position to assess the additional evidence related to the Second Information and advise Ms. Beckow of her options. [ 47 ] By August 2021 that communication seemed to have caused a further (apparent) change of heart by Ms. Beckow when the second counsel set dates for a Gardiner hearing from March 18-April 1, 2022. A Gardiner hearing would only take place where the essential elements of the crime were admitted. The purpose of such a hearing is for the Crown to prove facts that the Accused was not willing to admit.

The scheduling of a Gardiner hearing has allowed this Court to infer that the Accused understood the tendering of those pleas was an admission of the essential elements of the offences. [ 48 ] There was no change in plea done at that time, but it was a strong indication of an intention to enter a guilty plea to some, or all, of the expanded set of charges but to contest some aggravating factors or quantum. No counsel would engage in this course of conduct without clear instructions. It would now appear at this stage that Ms. Beckow had changed her mind a third time (my emphasis).

This was something that, although not determinative of anything, should have started to raise concern for her counsel (and the Court) about a potential waste of limited counsel and court resources. [ 49 ] Second counsel, based on materials from the Crown, was involved in significant resolution discussions which led to a substantial draft Agreed Statement of Facts (ASF) related to multiple complainants over the course of the Fall of 2021. This ASF was not seen by the Court. Despite the progress of counsel to work out the ASF, second counsel was unable to engage Ms.

Beckow sufficiently to complete the process and he withdrew as counsel in January 2022. [ 50 ] Ms. Beckow’s failure to properly engage two lawyers before any substantive hearing involving the allegations was unusual. It should also have raised a warning signal to future counsel and the Court. [ 51 ] Ms. Moore, the third counsel, came onto the file in February 2022. By early March 2022, she had determined she could not, in good conscience, conduct the Gardiner hearing on the scheduled March/April 2022 dates. She needed more time to prepare. The hearings were vacated and in April 2022, Ms.

Moore set dates for May 8-12, 2023. That was a substantial delay. [ 52 ] On June 2, 2022, Ms. Moore and Ms. Beckow appeared virtually to deal with a number of issues to formalize things. The Court already noted that the virtual appearance was done, in part, to allow Ms. Beckow to avoid the time and expense of attending in person.

As set out above, there were a number of steps taken including an amendment to a charge, a withdrawn information, confirmation of an election, the entrance of a guilty plea to the amended charge, and even an agreement for witnesses appearing by video at the hearing for the Gardiner hearing scheduled almost a year in advance. [ 53 ] Ms. Moore would not have entered the guilty plea without clear instructions. Nor would she explicitly, in writing, make such an admission on the PTC document without clear instructions. Surely this Court can have regard for that information, provided by

counsel of record at the time of the plea and the creation of the PTC document. Further, Ms. Beckow was present, virtually, when Ms. Moore did these things. These were significant indicators that Ms. Beckow had instructed Ms. Moore to enter the guilty plea, admit ‘the vast majority of the allegations” and contest “total losses incurred.” From this factual construct this Court has drawn the only logical inference that Ms. Beckow admitted the essential elements of the offences to which she had entered pleas of guilt.

Further, the scheduling of the new Gardiner also meant that the Court had accepted those pleas. [ 54 ] The Court has accepted that one of the formalities was not conducted on the June 2022 hearing date. The absence of a confirmation that a section 606(1.1) compliance had occurred on the record could, in many circumstances, be troublesome. Normally that might imperil the Crown’s position to prevent an Accused from successfully applying to strike a plea. However, here there was no application to strike the plea, further there was no evidence that Ms.

Beckow had been confused about the instructions she gave to each of her prior counsel including, in particular, Ms. Moore. [ 55 ] Unfortunately, by early January 2023, Ms. Moore was having trouble contacting Ms. Beckow. By the end of that month, Ms. Moore, felt compelled to withdraw as counsel of record. A third lawyer had now left the file in circumstances whereby one could possibly conclude that Ms. Beckow was (at the very least) not acting diligently and, perhaps, was seeking to delay the case un- necessarily. This was the point at which the Court was now able to say a red flag was apparent on this file.

Again, the Court has no evidence about Ms. Beckow’s version of these events. [ 56 ] The fourth lawyer, Mr. Browne, who appeared for Ms. Beckow, came on record in early February 2023 and initially indicated that he would be ready for the May 2023 hearing dates. [ 57 ] There then followed a curious sequence of events. [ 58 ] The February 16, 2023, hearing suggested that all was fine. Mr. Browne confirmed the guilty pleas and went so far as to say he believed everything would be worked out for the Gardiner hearing.

What he meant by that was somewhat unclear but based on the confirmation of the pleas he seemed to be saying that Ms. Beckow was committed to staying on the path and completing the sentencing process. Mr. Browne was following through on the intended arrangements set forth by Mr. Roper and then Ms. Moore. [ 59 ] The February 17, 2023, hearing continued this trend, where Judge Shaw (as she then was), sought to have Ms.

Beckow confirm her agreement with a further amendment to the charge in light of an agreement between defence counsel and Crown Counsel in both British Columbia and Alberta, to consolidate the multiple charges in different jurisdictions into one Information and have a trial in one province – in this case Alberta. It was noted that, again, Mr. Browne appeared via Webex, and Ms. Beckow was allowed to appear via telephone for this hearing to minimize the cost and interruption in her life. [ 60 ] Mr. Browne gave confirmation of Ms. Beckow’s agreement to the outcome and with the amendment of the charge.

This was done, initially, without Ms. Beckow’s presence on the phone due to some technical issues. Mr. Browne also confirmed that the scheduled trial dates for the British Columbia offence would be vacated pursuant to that agreement. In her absence, Mr. Browne also gave what can only be described as a modified sort of s.606 compliance confirmation. Mr. Browne assured the court a second time that “she is in agreement” with the arrangement and the amendment to the charge. [ 61 ] Crown Counsel on the day persisted to ensure that Ms. Beckow was on the line to confirm the amended count and, ultimately, Ms.

Beckow (when she appeared virtually) confirmed she was in agreement. As mentioned, another Information was to be withdrawn in reliance on that agreement between the Crown and defence counsel. Finally, the Court had Mr. Browne confirm that the Gardiner hearing would take place starting May 8, 2023. Mr. Browne and Ms. Beckow were then released from the hearing. [ 62 ] Again, without any contrary evidence from either Ms. Beckow or Mr. Browne, the Court can only conclude that Ms. Beckow’s instructions (at this point) were to proceed with the Gardiner hearing. Disclosure was provided to Mr.

Browne as new counsel in early March 2023. [ 63 ] Mr. Browne then sought to adjourn the May dates before Justice Van Harten, but that application was denied, because of the concern about the delay that been occasioned by the actions of Ms. Beckow. He also ordered the personal attendance of Ms. Beckow on the next date.

That next date was before me on April 28, 2023. [ 64 ] Only after all of that occurred, including the failed application to adjourn, did the Notice of Re-Election arrive dated April 17, 2023. [ 65 ] The five-day matter, set for May 2023 was assigned to this Court at some point in time and, as a result, the arguments regarding the validity of the plea, and the validity of the Notice of Re-Election took place before me. Ms. Beckow was in court in person. Crown and Defence provided written material to the Court and some oral argument was completed.

Due to an unknown clerical issue, the Court had not seen the Crown’s written argument until it was received in the courtroom. The Court pressed Mr. Browne on whether he was applying to strike the guilty plea, but Mr. Browne argued he did not believe he was required to make that application because of the Notice of Re-Election superseded the existing steps taken on the file. [ 66 ] It should be noted that by coincidence, Ms. Moore (the previous counsel), was in the same courtroom dealing with another matter. The Court asked Mr.

Browne to confer with his client to see if she would waive solicitor client privilege to allow Ms. Moore to give evidence to clear up any confusion about what had happened with the previous counsel of record. A short adjournment was taken to allow Mr. Browne to confer with Ms. Beckow. After the adjournment, Mr. Browne informed the Court that he maintained his argument and declined to call evidence on the issue of Ms. Beckow’s understanding of the pleas she had entered previously. Validity of the Notice of Re-Election [ 67 ] Pursuant to

section 11(

f) of the Charter , an Accused has a constitutional right to be tried by a Judge and Jury where the

potential punishment can be five years or more. [68] As note by Judge Rosborough (as he then was) in the case of R v Shilmar 2017 ABPC 213 at paragraph 60: “Trial by jury is the Accused person’s ‘right’ or ‘benefit’; it is not his obligation. The right to trial by jury may be waived. See: R vTurpin (SCC), [1989] 1 S.C.R. 1296 (‘Turpin’). Once waived, elections or re-elections as to mode of trial are governedby the provisions of the Criminal Code, Parts XVIII and XIX. Wilson J. succinctly described this dynamic in Turpin where she stated (atpara.37): The purpose of s. 11(

f) is to give an Accused the right to a jury trial and to ensure that, if a jury trial is not a benefit to the Accused, theAccused may waive the right to a jury trial. Once the right is waived, however, reliance on the Constitution ceases and the provisions ofthe Criminal Code govern”. [69] He then went onto discuss the timing of such re-elections at paragraph 64: “It is evident from the wording of s.561(2) C.C. that it was intended to impose a precise time limitation on re-elections from ProvincialCourt to a superior court.

The wording “day first appointed” is unique to s.561(2) C.C”. [70] After an extensive review of the case law in the area he concluded at paragraph 84: “Based upon the foregoing, I would interpret s.561(2) C.C. in light of the following principles: (i) subsection 561(2) C.C. and, in particular, the time limitation specified for re-election, is clear and unambiguous; (ii) the provisions of the Criminal Code governing elections and re-elections as to mode of trial fully comport with the Charter,including Charter, s.11(f). The notion of ‘Charter values’ ought not to influence the

interpretation of s.561(2) C.C. in such a way as toeliminate or render meaningless the time limitation specified by it; (iii) a “textual, contextual and purposive analysis” of Criminal Code, Parts XVIII and XIX reinforces the need to ensure that thetime limit specified by s.561(2) C.C. is respected; and (iv) absent a finding of abuse of process, a court ought not to interfere with a prosecutor’s exercise of discretion authorized bys.561(2) C.C. or otherwise substitute its view of what is “fair or just” for that of Parliament. [71] Judge Rosborough’s reasoning has been followed in several cases including one by this Court: R v Madsen, 2018 ABPC 281,R v TB, 2018 ABPC 43, R v BHS, 2020 ABPC 87. [72] Judge Lipton in R v TB supra said at paragraph 61: In my opinion, the meaning of the words “... before the day first appointed for the trial ...” in section 561(2) of the Criminal Code refer tothe first trial dates set in this matter, that being April 10th, 11th, and 12th, 2017, and not to any subsequent adjournment of the trialdates.

Such a conclusion promotes trial efficiency and deters mischief. [73] If the Court was relying on the Original Information the last day for Ms. Beckow to re-elect as of right would have been 14days before October 2, 2020. However, given that the Original Information was incorporated into the Second Information and thatInformation was set for a Gardiner hearing beginning on March 18, 2022, a more appropriate finding is that the deadline for re-electionas of right, without Crown consent, was on March 4, 2022. For the sake of clarity, a Gardiner hearing would be part of a trial processand giving the appropriate

interpretation of that term gives proper meaning to the restriction set out in section 561(2). [74] No Crown consent was given for the re-election so it cannot stand. In order to promote trial efficiency and deter mischief, thematter must remain with the Alberta Court of Justice (having replaced the Provincial Court of Alberta as the provincial trial court onApril 1, 2023). Validity of the Pleas Entered [75] Turning to the validity of the pleas, it is important to note again that no application was made by counsel for Ms. Beckow tostrike the earlier tendered pleas, despite an invitation to do so by the Court.

The Court received case law on validity of the plea fromboth counsel, and the Court has reviewed all of that case law. [76] I am mindful that Mr. Browne’s view was that filing the Notice of Re-Election on the file trumped all that had gone before,and this Court was required to send the matter to Kings Bench. I disagreed, not least because – as set out above – Ms. Beckow was notentitled as of right to re-elect, and the Crown did not consent to the re-election. [77] The chronology showed a consistent desire (from about August 2021 when Mr.

Roper set dates for a Gardiner hearing inMarch of 2021 up to April 17, 2023) to move to the sentencing phase on the matter in the Provincial Court. [78] Ms. Bourdon was the first counsel to set a disposition date on the Original Information. Mr. Roper was the first counsel to seta Gardiner hearing on the Second Information. Ms. Moore confirmed the stated intention set forth by to Mr. Roper by electingProvincial Court Judge and formally entering the pleas on the Second Information in June 2022. At that time, she also sought to movethe Gardiner hearings to May 2023, to allow her time to prepare her case.

In early 2023, Ms. Moore went off the record. Mr. Brownebecame the fourth lawyer and in February 2023, he confirmed the intention to proceed to the Gardiner hearing. [79] Sadly, in the weeks before the start of the Gardiner hearing, counsel for the defence sought to adjourn the hearing because he

could not be prepared in time. When that additional delay was not granted by Judge Van Harten, the case then appeared to be headed for the hearing as scheduled. [ 80 ] For reasons known only to Ms. Beckow and Mr. Browne, he then filed a Notice of Re-Election on her behalf on April 17, 2023. As a result of that attempted re-election and the Application made before this Court in late April 2023, the Gardiner hearing has been pushed back to September 2023 – approaching four years after the initial charge was laid in November 2019. [ 81 ] In

summary, based on the evidence available, four separate defence lawyers at various stages, have acted on instructions from Ms. Beckow to engage in discussions about the disposition of the matter and enter or confirm the plea on multiple occasions to the offences with amendments made to the charges based on agreements with the Crown: 1. Ms. Bourdon after setting trial dates, vacated the trial date and booked a disposition hearing. 2. Mr. Roper confirmed a guilty plea and set a trial date. As a result of further charges, he then engaged in discussions leading to a draft ASF and booked a Gardiner Hearing. 3. Ms.

Moore entered into agreements with Crown that led her making an election for Provincial Court Judge and entered a plea to an amended count in the virtual presence of Ms. Beckow. The Crown, in reliance on agreements reached between counsel, withdrew other charges on multiple occasions. 4. Mr. Browne confirmed agreements in place to withdraw a charge in BC to consolidate that charge into an amended count in Alberta, the BC charge was withdrawn, the plea to the further amended count was confirmed in the presence of Ms. Beckow, and he made a modified confirmation of s.606. 5.

The first three counsel withdrew as the matter approached sentencing hearings they set down, presumably on instructions from Ms. Beckow. The fourth lawyer attempted to adjourn again and, when that failed, sought to avoid that hearing altogether. [ 82 ] The Supreme Court in R v Wong 2018 SCC 25 set out the test for Accused persons who seek to withdraw their guilty plea. However, that test required evidence that the Accused was unaware of the legally relevant consequences at the time of the plea to establish subjective prejudice.

No such evidence was present in this case. [ 83 ] In fact, there was a preponderance of evidence demonstrating that Ms. Beckow had been more than minimally involved at various points in a lengthy process to get to this stage. Whilst there may have been flaws in the process up to this point, this Court was satisfied that Ms. Beckow had, through various means, entered into agreements with the Crown that allowed charges to be amended, more than one Information to be withdrawn and her corresponding admissions to essential elements of the offence through various counsel. On its face, this was an informed decision.

There is no evidence before this Court to suggest that she was unaware of the legally relevant consequence, or to show that she was uninformed or otherwise confused by what transpired. [ 84 ] R v Corkum, 1984 ABCA 226 is a short Alberta Court of Appeal Memorandum of Judgement delivered from the Bench. In that case, some facts were read in, but the Accused was not asked if he accepted the facts as alleged and, later in the sentencing, he challenged the facts as set out. He was convicted and sentenced. The Court went on to comment on that the standard practice was not followed in that case.

That was an example of a “quick guilty plea on the fly” in the vernacular of busy docket and disposition courts across the province. [ 85 ] Here, although specific facts had not been put to the Accused at the time of plea, it was clear that multiple defence counsel – over the course of almost four years – had significant discussions with Ms. Beckow on how to proceed. A draft ASF was created by one counsel. Ms. Beckow has confirmed, on two occasions on the record (with two different counsel), her acceptance of the agreements made by her counsel with the Crown. Ms.

Moore put it succinctly in the PTC form when she indicated that for the Gardiner hearing Ms. Beckow was admitting the “vast majority of the allegations” and the time in court would be spent specifically on the quantum in question. Even in February 2023, on two separate occasions, Mr. Browne provided an indication that the hearings scheduled for early May 2023 were going ahead as planned. Nothing about this process was quick and on the fly. Ms.

Beckow confirmed her agreement to arrangements to her benefit on the record as late as February 2023. [ 86 ] In R v Zaworski 2022 BCCA 103 , the Accused tendered a guilty plea without admitting a disputed fact and the matter proceeded to a Gardiner hearing. The disputed fact was proved by the Crown at the hearing and the case proceeded to sentencing. On appeal, the Accused argued that the disputed fact was an element of the offence. The British Columbia Court of Appeal held that the Wong analysis was still appropriate.

To establish prejudice the Accused would require affidavit evidence. [ 87 ] The Court went on to say that there were several factors that indicated the trial Judge’s decision was appropriate including: 1. The disputed fact was not an element of the offence. 2. At the time the plea was entered the Accused would have been in possession of the disclosure outline in the allegations. 3. At the time the plea was entered the Accused had attended the bail hearing where the allegations were put on the record in open court. 4.

At the time the plea was entered the Accused was represented by counsel who would have explained the plea to him in a manner sufficient to meet the requirements of s.606(1.1). 5. Mr. Zaworski personally confirmed the plea on the record. [ 88 ] A number of those factors are present here including Ms. Beckow’s presence at a bail hearing where the allegations were put on the record, the cumulative work of two or more counsel towards meeting the requirements of s.606(1.1), and Ms. Beckow’s

confirmation of her plea on the record on two separate occasions. [ 89 ] In R v Hunt 2021 ABCA 49 , the Court of Appeal stated: “After the trial judge ruled that a search warrant did not violate Brian James Hunt’s

section 8 rights under the Canadian Charter of Rights and Freedoms , Mr. Hunt pleaded guilty to four counts of breaking and entering. He now appeals against his conviction arguing that the trial judge erred in rejecting his Charter argument – without first asking this Court to set aside his guilty plea on the ground that it was involuntary or equivocal, or the product of inaccurate or insufficient information.

An appellant must prove on a balance of probabilities the facts that form the basis for a claim the plea was involuntary or equivocal or the product of inaccurate or insufficient information”. [ 90 ] Here, the pleas have been tendered and accepted. By virtue of the scheduling of the Gardiner the essential elements of the offences have been admitted. The Accused has pled guilty but has not asked for her pleas to be struck. She has attempted to skip the step where she demonstrated the plea was involuntary, equivocal or the product of inaccurate or insufficient information by filing the Notice of Re-Election.

In fact, this Court specifically invited her counsel to make that application and provide that evidence, but the Court’s invitation was declined. [ 91 ] In R v Magbanua 2013 ABPC 248 , Judge Fradsham (as he then was) was dealing with the issue of whether he had the jurisdiction to conduct a sentencing where another judge had received an ASF. The ASF was marked as an exhibit by that other judge.

Not surprisingly, Judge Fradsham determined that the other judge was seized. [ 92 ] Based on the tendering of the pleas and their acceptance by the Court on June 2, 2022, it was arguable that Judge Barley, as he then was the presiding Judge that day was seized. Suffice it to say, that had Ms. Beckow not attempted to re-elect (and by extension start the process over in a different court), it was possible that no one would have been particularly mindful of that fact and the Gardiner hearing would have proceeded before any available Judge.

Cases have often passed through our system where a plea was put before one Judge, but the sentence was carried out by a second Judge. It was, and is, a routine practice. What makes this one different is that a Judge has, by inference, heard the plea and accepted the admission of the essential elements of the offence and may well be seized. There may be two remedies to such an outcome.

Either the parties could agree to proceed before a second Judge with a confirmation of the pleas and facts being put before the second Judge, or the matter should return to the original Judge to complete the sentencing. [ 93 ] However, in this case, the seized Justice likely would be Justice Barley. He is a part time Justice. The problem is that the newest dates agreed for the Gardiner hearing are in September 2023 when Justice Barley is not available. In fact, according to our scheduler, he does not return until the end of October.

Scheduling a five-day matter with a part time judge after October 2023 would be enormously difficult and would, inevitably, lead to a further unjustifiable delay in a case that has its origins almost four years ago.

Accordingly, this Court has determined that Justice Barley is unable to proceed pursuant to s.669.2(1) of the Code and I will conduct the sentencing hearing. [ 94 ] If parties operate with good faith the practice of entering pleas in front of one justice and conducting a sentence in front of another justice will continue and this assists matters moving through the system in a timely and efficient manner in general. Further this Accused has been the beneficiary of that type of practice in her dealings on both the Original Information, the Second Information and the BC Information.

If limited judicial resources were allowed to be hamstrung by an inability to move cases around to fit overburdened court schedules and accommodate the needs of Accused persons, then the system would grind to a halt. [ 95 ] Saskatchewan AG v Saskatchewan PCJ 1994 CarswellSask 14 SCA ( the Saskatchewan case ) set out the normally expected procedure for a guilty plea. 1. The charge is read to the accused, who offers or tenders the guilty plea. 2. A judge hears the facts. 3. The accused accepts or explains those facts. 4.

The judge exercises a discretion (“the First Adjudication”) whether or not to accept the plea. 5. If the plea is not accepted, the judge decides whether or not to proceed with a more formal hearing of the evidence. 6. If necessary, that judge then hears the evidence. 7. After hearing the evidence, the judge exercises a discretion the second time (“the Second Adjudication”) as to whether or not to accept the plea. [ 96 ] Pursuant to the Saskatchewan case, this case has made its way through Steps 1-5 and the Gardiner hearing will be Step 6.

The pleas were tendered, Justice Barley accepted those pleas and set the Gardiner hearing. By inference Ms. Beckow was making an admission of the essential elements of the offence and the First Adjudication has occurred. However, Ms. Beckow also wanted certain facts to be proven in Gardiner hearing. The scheduling of the Gardiner hearing is a decision to proceed with a more formal hearing of the evidence.

Accordingly, the Gardiner hearing – scheduled for September 2023 – would be necessary for Step 6 (hearing the evidence) and Step 7 (the Second Adjudication) of the process as set out in the Saskatchewan case . [ 97 ] As to any potential application to strike the guilty pleas, I have set out in significant detail why such an application would have a limited chance of success based on the evidence before the Court currently.

If such an application was made, properly supported by evidence, it may well provide this Court with a different perspective when seeking to adjudicate on that issue. [ 98 ] Conversely, as no such application has been forthcoming, the Crown may well have to call more witnesses to meet their evidentiary burden in support of the pleas than they had originally planned. Of course, it is entirely possible that counsel may now be

able to produce an ASF to allow the Gardiner hearing to proceed as was intended. [ 99 ] What is clear, is that the matter needs to move forward and be concluded. Further delays can no longer be countenanced. If, as has happened frequently in this case, Ms. Beckow seeks to change counsel yet again, the matter will proceed with or without counsel. Heard on the 28 th day of April 2023

Summary of reasons delivered on the 5 th day of May 202 3. Dated at the City of Calgary, Alberta this 20 th day of June 2023. P.J. Mason A Justice of the Alberta Court of Justice Appearances: Britta Kristensen for the Crown Matthew Browne for the Accused