R. v. Benoist, 2011 ONCJ 362

COURT FILE No.: Central East Region-Newmarket 08-09589/08-10197 DATE: 2011·06·07 Citation: R. v. Benoist , 2011 ONCJ 362 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — FRANKLIN BENOIST Before Justice Peter C. West Heard on October 29, 2010, May 17 and May 31, 2011 Reasons for Judgment released on June 7, 2011 Ms. R.

Warren ........................................................................................................... for the Crown The defendant Franklin Benoist on his own behalf WEST J.: [ 1 ] This is an application by Franklin Benoist to withdraw four guilty pleas he entered before me on October 29, 2010. He was represented by very experienced senior counsel, Mr. Alan Mintz at that time. He alleges that his pleas were invalid in that they were equivocal, uninformed and involuntary.

He does not allege that he received ineffective assistance of counsel prior to his entering his pleas, rather, he indicates that he did not fully understand the nature of his sentencing hearing. [ 2 ] Prior to Mr. Mintz being retained, Mr. Benoist had retained Mr. Pazuki, an experienced criminal lawyer who regularly appears in the Newmarket Courts. Mr. Pazuki conducted three judicial pre-trials before me. The Crown was represented by Ms. E. Shaw at this point in the proceedings. On April 27, 2009, Mr. Pazuki applied to be removed as counsel of record and Mr.

Alan Mintz, a very experienced senior member of the defence bar, appeared as new counsel of record. [ 3 ] After Mr. Mintz became Mr. Benoist’s lawyer he conducted four judicial pre-trials with Mr. A. Di Cecco, who was acting on behalf of the Crown at that time, before me on the following dates: May 28, 2009; June 24, 2009; September 10, 2009; and October 8, 2009. Throughout those pre-trials, Mr. Mintz and Mr. Di Cecco were attempting to find a middle ground for a resolution of the charges that were before the court. On December 16, 2009, Mr.

Mintz advised that a trial date should be set and five days were set for trial; namely, November 1 to 5, 2010. A confirmation date was set for March 2, 2010 and the trial dates were confirmed. On October 29, 2010, the matter was brought forward for a continuing judicial pre-trial. Mr. Mintz advised that Mr. Benoist now wanted to resolve a number of the charges before the court. It was not going to be a joint submission. The guilty pleas would be entered by Mr.

Benoist, the facts read in by an agreed statement of facts and upon admission of the facts I would make a finding of guilty. [ 4 ] When the parties appeared in court, that same day, the following was said: Mr. Mintz: Yes, Your Honour, Mr. Benoist is here before the court. This, Your Honour, will be a guilty plea with respect to

Section 606 of the Criminal Code . I’ve reviewed this matter with my client. I’ve advised him that by entering a guilty plea he will be giving up his right to a trial; by entering a guilty plea he’ll be admitting the facts that constitute the offence and support the conviction. This is not a joint submission, so I didn’t have to deal with facts, but I did, in fact, tell my client, re mind him, that the ultimate decision with respect to sentence falls within Your Honour’s jurisdiction. The Court: Yes, which charges is he pleading to, please? Mr.

Di Cecco: Yes, Your Honour, I’ve already indicated to your clerk that he will plead to count – I’m talking about the replacement information as far as the federal drug charges are concerned. It will be count number one, two, five and ten on that one. The Court: Yes, okay, I understand, but what are the charges – count one, two, five and ten – and what are the charges? Mr. Di Cecco: Trafficking in a substance held out to be…heroin and possession of marijuana for the purpose of trafficking; possession of Barbital for the purpose of trafficking…

The Court: …those are the four and then there’s a fifth charge, as well? Mr. Do Cecco: Under the Excise Tax Act , it will be Section 32(1) of the Excise Tax Act , …That’s possession of unmarked cigarettes, Your Honour – unstamped ciga rettes. The Court: All right. Mr. Benoist, you heard the comments made by Mr. Mintz in terms of your understanding that this is your decision to plead guilty? Mr. Benoist: Yes, Your Honour. The Court: You’re aware of the facts that are going to be read in, sir, with respect to the allegations that support the charges that are before you? Mr. Benoist: Yes.

The Court: And you’re prepared to admit those facts are substantially correct? Mr. Benoist: Yes. The Court: And, you do understand, sir that ultimately sentencing is in my hands as to what the appropriate sentence is? Mr. Benoist: Yes, Your Honour. The Court: All right. I’m satisfied that Mr. Benoist, based on what Mr. Mintz said to me and my further questions, understands the nature and consequences of his guilty plea. If he could be arraigned on the counts as indicated by Mr. Do Cecco. [ 5 ] Mr.

Benoist was then arraigned on four of the drug charges pursuant to the Controlled Drugs and Substances Act contained in Information 08-10417. Count 1: a trafficking charge in a substance held out to be cocaine a

Schedule 1 substance; Count 2: a trafficking charge in a substance held out to be heroin a

Schedule 1 substance; Count 5: possession of a

Schedule II substance to wit: marijuana for the purpose of trafficking and Count 10: a possession of a

Schedule IV substance to wit: barbital (5.5-diethylbarbituric acid) for the purpose of trafficking contrary to the Controlled Drugs and Substances Act . There was some confusion concerning the two counts relating to trafficking in a substance held out to be heroin and cocaine (Count 1 and 2) as a result of the manner in which the court clerk read those counts. I then clarified Mr. Benoist’s understanding of those two counts by having the following exchange with him: The Court: …You understand, sir, that the first count is a trafficking charge holding out a substance to be cocaine? Mr. Benoist: Yes.

The Court: The second count is a trafficking and the substance held out to be heroin? Mr. Benoist: Yes. [ 6 ] After the four counts were read by the clerk, Mr. Mintz waived the reading of the charges again and advised that his client elected to be tried by the Ontario Court of Justice without a jury and without a preliminary hearing. Mr. Benoist was asked how he pleaded to those four counts and he indicated “guilty.” He was then arraigned on the Excise Tax Act charge, to which he also entered a plea of “guilty.” I then asked Mr. Benoist to have a seat and to listen to the facts given by the Crown, Mr.

Di Cecco. [ 7 ] An agreed statement of facts was then filed as Exhibit 1 and Mr. Di Cecco read in the facts which supported the guilty pleas. Briefly, the facts indicated that Mr. Benoist provided a white powdery substance to two residents of Fairpark Manor located at 85 Fairpark Lane in the Town of Georgina. Fairpark Manor is a residence where individuals suffering from mental health illnesses, such as schizophrenia, reside. Mr. Benoit told the residents that the white powder was “white lightning,” which he held out to contain cocaine, speed and heroin.

The police investigation revealed through confidential police sources that Mr. Benoist initially provided free samples of this white powder and that he later was selling it to residents. He was also selling “Indian” cigarettes to the residents. One of the residents, Cameron Stewart, to whom Mr. Benoist sold the white powder, overdosed and was taken to hospital where he remained for five days suffering from delusional experiences. This resident was found in possession of 6 baggies of white powder containing a total of 6 grams, which was later determined to be barbital.

Another resident, Klayton Amero was found suffering from seizures with a white powdery substance around his nostrils on the same day that Cameron Stewart was hospitalized. A search warrant was obtained for Mr. Benoist’s residence located at 31580 Lakeridge Road in the Town of Georgina and upon execution of that warrant, police located 186 grams of cannabis marijuana and 33 grams of Barbital in the garage and 7.9 kilograms of barbital was located in Mr. Benoist’s attic. Further, 29,180 cigarettes not stamped or containing any of the proper markings as required under the Excise Tax Act were also located in Mr.

Benoist’s house. Also part of the agreed statement of (Exhibit 1) fact was a drug information sheet concerning barbital and a letter dated September 16, 2010 from Chris House, a forensic toxicologist from the Centre of Forensic Sciences, which describes barbital as a barbiturate or central nervous system depressant, which is no longer available for use in Canada. [ 8 ] After the facts were read by Mr. Di Cecco, Mr. Mintz advised that the facts were substantially correct.

There was then some discussion about the facts between myself and counsel concerning the trafficking charge and it was decided that count one in the information would be amended to read “traffic in a substance held out to be included in

Schedule (

I) to wit: cocaine and heroin, contrary to section 5(1) of the Controlled Drugs and Substances Act .” The guilty plea was then struck on count two and it was agreed by the Crown that he would withdraw this count at the completion of Mr. Benoist’s sentencing. Mr. Mintz, on behalf of Mr. Benoist, indicated his agreement to this. [ 9 ] Mr. Di Cecco then indicated that it was his understanding that the defence had no objection to an order forfeiting all controlled substances, cigarettes and currency, $270.00, which was seized by the police during the execution of the search warrant. Mr.

Mintz agreed that such an order should be made. Mr. Mintz then requested that the matter of sentencing be adjourned to allow him time

to prepare some materials which he wished to file with the court. I inquired as to whether Mr. Mintz believed a pre-sentence report would be of assistance and he indicated that it would. A pre-sentence report was ordered. [ 10 ] Mr. Di Cecco then advised the court that the Crown’s position on sentence was that a four year penitentiary sentence was appropriate in respect of the drug charges. He indicated he would file a casebook with precedent authorities prior to our return date. He was also seeking a fine in the range of 17 cents per cigarette to 25.5 cents per cigarette. Mr.

Di Cecco agreed that the sentence pursuant to the Excise Tax Act could be a fine or jail or both. Mr. Mintz advised that he would be submitting a conditional sentence was the appropriate sentence having regard to Mr. Benoit’s age and his personal circumstances, which I had been advised during the pre-trial conferences related to certain health issues that Mr. Benoist faced. The matter was adjourned to March 15, 2011 in courtroom 201 for sentence. [ 11 ] On March 15, 2011, Mr.

Mintz advised me that some of the materials he had been attempting to obtain were still not prepared and he needed a further brief adjournment. Mr. Di Cecco had provided a sentencing brief containing the Crown’s submissions, the agreed statement of facts, an affidavit from a toxicologist from the Centre of Forensic Sciences and a number of summaries of sentencing cases, prior to this date. Ms. Warren was now representing the federal Crown and she had no objection to the matter being adjourned.

The matter was adjourned to May 17, 2011. [ 12 ] A pre-sentence report had been prepared by Probation Services and was in court with the informations but it was not distributed as the matter was not proceeding. [ 13 ] On May 17, 2011, Ms. Warren and Mr. Mintz requested to speak with me in chambers concerning Mr. Benoist’s sentencing hearing. Mr. Mintz advised me that his client for the first time was taking the position that he was not guilty of some of the charges to which he had entered guilty pleas and he was of the view that he could no longer continue to act as Mr.

Benoist’s lawyer due to irreconcilable differences. He would consequently be making an application to be removed as counsel of record. He also advised me that Mr. Benoist was aware of his intent to apply to be removed as counsel of record and that he was not opposed to me granting the application. Ms. Warren indicated that she was not opposed to Mr. Mintz being removed as counsel of record. [ 14 ] Prior to attending in court I had an opportunity to briefly review the pre-sentence report of Joshua Driscoll of Keswick Probation & Parole dated March 8, 2011. The pre-sentence report indicates that during Mr.

Benoist’s interviews with Mr. Driscoll he maintained his innocence in respect of the charges dealing with his trafficking a white powder, which he allegedly called “white lightning” and held out to contain cocaine and heroin, to residents at Fairpark Manor. Further, he denied having any knowledge of the barbital that was located in his garage (33 grams) and in his attic (7.9 kilograms). When Mr. Benoist was interviewed a second time after the probation officer had contacted Mr. Mintz, he now admitted his involvement with and knowledge of the barbital, although Mr. Driscoll still had some concerns about Mr.

Benoist’s change in position. [ 15 ] When the matter was addressed in court, Mr. Mintz made his application to be removed as counsel of record. He advised me of the following information: “What happened is that yesterday, in anticipation of coming here today and speaking to sentence which was the scheduled purpose of today’s hearing, as I reviewed matters Mr. Benoist advised me that he’s not guilty….I conducted some inquiry as to that statement and as a result of the information he received or I received, it’s apparent that I’m in that ethical position that I can no longer represent Mr.

Benoist on any basis.” It was Mr. Benoist’s position that he had not completely understood he was pleading guilty to the trafficking charges and possession for the purpose of trafficking charges relating to the barbital. [ 16 ] I told Mr.

Benoist that I had concerns about his position because when he entered his guilty pleas I would have conducted a plea comprehension hearing where I would have satisfied myself that his guilty pleas were voluntary and that he knew he was giving up his right to have a trial on the charges, that he was aware of the facts which the Crown would rely upon to support the charges and that he was prepared to admit those facts were substantially correct. I further indicated to Mr.

Benoist that during his guilty pleas I was also satisfied that he was aware that the Crown was seeking a significant penitentiary sentence and that his counsel was recommending a conditional sentence in the reformatory range. I asked Mr. Benoist what he wished to do, whether he was intending on retaining new counsel and was it his intention to make an application to strike his guilty pleas. Mr. Benoist advised that he did not have the financial means to retain another lawyer. [ 17 ] I advised Mr. Benoist that as he was aware I had conducted numerous judicial pre-trials with his lawyer and the Crown.

The matter had been adjourned once before because Mr. Mintz had not been able to obtain the medical reports he was seeking. I advised Mr. Benoist that I had indicated on March 15, 2011 that the matter would not be adjourned again but would proceed on May 17, 2011. However, Mr. Mintz was now removed as counsel of record and Mr. Benoist was now taking the position that he was not guilty of some of the charges he had pled guilty to. I told Mr. Benoist I would not force him on and that I would give him time to consider his position and to attempt to retain counsel. Mr.

Benoist told me that he wanted “to get this over with as soon as possible, it’s driving me crazy.” [ 18 ] I told Mr. Benoist that he should retain counsel to assist him in what next steps he intended to take or if he was unable to afford to retain counsel that he could enlist the services of duty counsel to assist him. I then ordered the transcript from Mr. Benoist’s guilty plea on October 29, 2010. The Crown ordered the transcript from May 17, 2011. [ 19 ] When I attempted to suggest dates for the matter to return to deal with an application to strike the guilty pleas or continue with the sentencing hearing, Mr.

Benoist told he could not attend on dates which were over two weeks away because he had to visit his ailing sister in Montreal. When pressed on this Mr. Benoist agreed that he could visit his sister prior to the dates I was suggesting. Ms. Warren then attended the trial co-ordinator’s office to determine an appropriate date. The matter was adjourned to May 31, 2011 to allow Mr. Benoist time to retain counsel or obtain advice from duty counsel on the day he returned to court. [ 20 ] On May 31, 2011 Mr. Benoist attended without having retained new counsel. He was therefore assisted by duty counsel, Ms. Glass. Ms.

Glass advised me that she had met with Mr. Benoist and he told her that he wanted to proceed to sentencing and did not

want his guilty pleas struck. She further advised that she would be unable to assist Mr. Benoist at his sentencing hearing because he wasstill maintaining that he was not guilty of the trafficking in a substance held out to be cocaine and heroin and that he was not guilty ofpossession for the purpose of trafficking of the barbital found in his home. Although Mr. Benoist wanted to proceed with his sentencing Iwas of the opinion that given his position, as re-iterated by Mr. Glass, I should determine first whether, in all of the circumstances, hisguilty pleas should be set aside. [21] Mr.

Benoist stated that he wanted to “get everything over with,” that he “cannot not go any further with this” and I “mayas well just put him in for four years or whatever it is, because [he’s] not gonna fight it anymore, [he] can’t…afford it; [he] can’t take the– the pressure that it’s given [him]. [He’s] really had it, [he’s] ready to walk in front of a subway.” He said he was at the mercy of thecourt and did not care what happened to him anymore. [22] It was Mr.

Benoist’s position that he only sold cigarettes to the residents of Fairpark Manor and because they owed himmoney for these cigarettes they decided to turn on him and say that he had provided them with the barbital, which he had not. When Iasked him why he would plead guilty to trafficking in a white substance that was held out to be cocaine and heroin, Mr. Benoist told methat he had pled guilty on the advice of Mr. Mintz and that Mr. Mintz told him that he would have a better understanding once a pre-sentence report was prepared for the Judge, which would provide a way for Mr.

Benoist to explain himself concerning the charges. Hethen said “I presumed that the charges that I pled guilty to, and I – that I didn’t quite understand the full implications of it. I thought I waspleading guilty to something that, like, that I had accepted in my own mind.” [23] I questioned him further about his acceptance of the agreed statement of facts which was read to the Court by the Crownand to which Mr. Mintz agreed was correct. His response was “All I can say is I don’t feel guilty on those charges.

I’m sorry to say that, because I – I know that it’s against your protocols,and I – and I have to accept whatever punishment there might be in spite of the fact that I don’t agree with all the things that I havepleaded guilty to….I meant to say that, because that’s what I presumed was – it’s my mistake then. I presumed that I was preparingfor the cigarettes and the marijuana, which I had admit full guilt to, and I was willing to – to do that, and that’s why I went aheadand – and made a plea of guilty.

The other stuff I wasn’t aware of all the things, because first it was complicated to me ‘cause I wascharged for heroin and cocaine.” [24] I asked Mr. Benoist whether he was aware that the Crown’s position was a four year penitentiary sentence and that hislawyer was going to submit that a conditional sentence was the appropriate sentence. He told me he was aware of the Crown’s positionand that Mr.

Mintz had told him that he would be sentenced to a conditional sentence; this was why he was “still prepared to go thatroute.” He is “not disputing what the defence and the Crown are saying; all he is saying is that he admits some guilt but not a hundredpercent.” [25] I then heard submissions from the Crown. The Crown originally asked me, on May 17, 2011, to strike the pleas andremand Mr. Benoist to the administrative court to set a date for his preliminary hearing or trial on all of the charges before the court.

Iindicated at that time that I did not believe it was such a simple matter and that the onus would be on Mr. Benoist to demonstrate, on abalance of probabilities, that his guilty pleas were not informed, voluntary or unequivocal. Ms. Warren’s position changed at that pointand she indicated that she now wanted an opportunity to review the transcript of the guilty plea on October 29, 2010. When the matterwas spoken to on May 31, 2011 the Crown’s position had changed completely; namely, that the guilty pleas should not be struck and thesentencing should proceed. Ms.

Warren provided me with a number of precedents from appellate courts in Ontario, British Columbia andNova Scotia. [26] The Crown did not subpoena Mr. Mintz to testify but relied on his representations to the court on October 29, 2011 thatMr. Benoist’s guilty plea was pursuant to

section 606 of the Criminal Code, that he had reviewed the matter with Mr. Benoist and Mr.Benoist was aware he would be giving up his right to a trial and that by entering a plea of guilty Mr. Benoist would be admitting the factsthat constitute the offence and support a conviction. In addition the Crown relied on Mr.

Mintz’s representations when he applied to beremoved as counsel of record; namely, that the first time his client had ever indicated he was not guilty of some of the offences was theday before May 17, 2011 when the matter was returning for sentencing. [27] At the end of the inquiry into whether I should set aside Mr. Benoist’s guilty pleas I asked him whether Mr. Mintz haddone anything improper to get him to plead guilty and he responded, “Oh, no I have the utmost respect for Mr. Mintz.” He had made asimilar comment on May 17, 2011. I further asked whether he was alleging that Mr.

Mintz had done anything to pressure him to pleadguilty or whether Mr. Mintz had misrepresented what the Crown’s position on sentencing was and he again responded no. [28] It was Mr. Benoist’s position that despite pleading guilty and admitting the facts supporting the charges he thought thatduring the sentencing hearing he would be able to explain how he was not guilty of the two most serious charges, that he was unaware ofthe drugs in the attic and never provided any of those drugs for free or for money to the residents at the Manor. [29] The matter was adjourned to June 7, 2011 for my ruling on Mr.

Benoist’s application to strike his guilty pleas. The Law Relating to Striking a Guilty Plea [30] A guilty plea is valid if it is informed, voluntary and unequivocal. An informed guilty plea is one made with anappreciation of the allegations, the legal effect of the plea and the consequences of the plea. R. v. Carty 2010 ONCA 237 ,[2010] O.J. No. 1305 (Ont. C.A.) at para. 20 and R. v. T.(R.) (ON CA), [1992] O.J. No. 1914 (Ont. C.A.) at para. 14. [31] A voluntary plea refers to the conscious volitional decision of the defendant to plead guilty for reasons which he or sheregards as appropriate. R. v.

Rosen, (SCC), [1980] 1 S.C.R. 961 at p. 974; R. v. T.(R.), supra at para. 16. A guilty pleaentered in open court, particularly by a defendant represented by counsel, is presumed to be valid. R. v. Eastmond, (ON CA), [2001] O.J. No. 4353 (Ont. C.A.) [32] In R. v. Moser, (ON SC), [2002] O.J.No. 552, Justice Hill explained the meaning of the terms

voluntary, informed and unequivocal in the context of guilty pleas. [32] To be valid, the plea must be unequivocal -- the circumstances should not be such that the plea was unintended or confusing, qualified, modified, or uncertain in terms of the accused's acknowledgement of the essential legal elements of the crime charged: The accused's personal entry of the plea is a factor tending to demonstrate the unequivocal character of the plea: [citation omitted] [33] A plea of guilty must be voluntary in the sense that the plea is a conscious volitional decision of the accused to plead guilty for those reasons which he or she regards as appropriate: Ordinarily a plea of guilty involves certain inherent and external pressures: Plea negotiations in which the prosecution pursues a plea of guilt in exchange for forgoing legal avenues open to it, or agrees not to pursue certain charges, do not render the subsequent plea involuntary: What is unacceptable is coercive or oppressive conduct of others or any circumstance personal to the individual which unfairly deprives the accused of free choice in the decision not to go to trial: There is, of course, no closed list of circumstances calling into question the voluntariness of a guilty plea: pressure from the court; incompetence of defence counsel; cognitive impairment or emotional disintegration of the accused; effect of illicit drugs or prescribed medications. [citations omitted] [34] Finally, a guilty plea's validity depends on the plea being informed.

It is essential that the accused understand the nature of the charges faced, the legal effect of a guilty plea, and the consequences of such a plea. Where an accused understands the factual basis for the allegations, counsel is able to give advice and take instructions respecting existence of the essential ingredients of the crimes charged. As stated, the legal effect of a guilty plea is to surrender the presumption of innocence and alleviate the prosecution's burden of establishing guilt beyond a reasonable doubt. The accused must generally know the jeopardy faced by way of possible punishment.

Often the seriousness of the offences is self-evident and therefore so too is the exposure to a stiff custodial disposition. However, incorrect legal advice as to sentencing options may call into question whether the plea was truly informed: [citations omitted] [ 33 ] As Justice Hill noted, “In the absence of any circumstances in the record or a challenge to the competence and professionalism of trial counsel, a trial judge is justified in drawing the inference that counsel took the necessary steps to ensure the client understood the nature and consequences of a guilty plea.

Where counsel is experienced in defending criminal cases, it can be safely assumed there exists a professional discharge of counsel responsibilities.” [citations omitted] [ 34 ] In R. v. Pintus , [2010] O.J. No. 1315, (at para. 4 ) the Ontario Court of Appeal held that an accused who alleges that he received ineffective assistance of counsel which led to a guilty plea bears the onus of establishing, on a balance of probabilities, that counsel was incompetent and that the incompetent representation resulted in a miscarriage of justice.

Application to this Case [ 35 ] I make the following findings of fact based on the totality of evidence before me. [ 36 ] Franklin Benoist was charged with a number of serious criminal offences pursuant to the Controlled Drugs and Substances Act on August 28, 2008 . He was initially represented by Mr. Pazuki, an experienced criminal lawyer, who conducted three judicial pre-trials before me. The Crown was represented by Ms. E. Shaw at this point in the proceedings. Mr. Pazuki applied to be removed as counsel of record on April 27, 2009 and Mr.

Mintz, a very experienced senior member of the defence bar, appeared as new counsel of record. [ 37 ] This matter was judicially pre-tried on at least seven occasions. The Crown’s position on sentence originally was for a penitentiary sentence of four to six years. This position changed to that of a four year penitentiary term just prior to the commencement of Mr. Benoit’s trial commencing on November 1, 2010. There is no doubt that Mr. Benoist was fully aware of the sentencing position of the Crown. [ 38 ] It is clear to me that there had been fairly extensive discussions between the Crown, Mr. Di Cecco and Mr.

Mintz. The matter was brought forward on October 21, 2010 so that a continuing pre-trial could be set before me on October 29, 2010. When counsel appeared before me they had prepared an agreed statement of facts and the Crown’s position had changed to a sentence of four years in the penitentiary. Mr. Mintz would be submitting that a maximum reformatory sentence, served in the community, was appropriate. [ 39 ] At this pre-trial which had been arranged by counsel in advance, I was advised that Mr.

Benoist would not be having a trial as originally contemplated, but rather, would be entering pleas of guilty to four of the drug charges and the charge under the Excise Tax Act . Mr. Mintz had received new instructions from Mr. Benoist who had decided he wanted to plead guilty. [ 40 ] When Mr. Benoist appeared before me in court to enter his pleas of guilty I was advised by Mr. Mintz that Mr. Benoist wanted to enter pleas of guilty to a number of the charges and Mr. Mintz had gone over the plea comprehension pursuant to

section 606 of the Criminal Code with Mr. Benoist. Mr. Mintz advised, in Mr. Benoist’s presence, that his client was aware that he would be giving up his right to a trial. In fact, Mr. Benoist’s trial was scheduled to commence in three days. Mr. Mintz advised that his client would be admitting the facts that constitute the offences by entering his guilty pleas. Finally Mr. Mintz advised that his client was aware it was not a joint submission and that the sentence imposed was my ultimate decision. [ 41 ] I then asked which charges Mr.

Benoist would be pleading guilty to and the Crown outlined the counts in the two informations that Mr. Benoist would be pleading guilty to. I spoke to Mr. Benoist directly and re-iterated that he had heard the comments made by Mr. Mintz in terms of it being Mr. Benoist’s decision to plead guilty and Mr. Benoist agreed that it was his decision. I asked if

he was aware of the facts that were going to be read in to support the charges he was pleading guilty to and he indicated he was. I also asked if he was prepared to admit those facts as being substantially correct and he said he was. Finally I asked Mr. Benoist if he understood that ultimately sentencing was in my hands as to what the appropriate sentence would be and he indicated that was his understanding. I was satisfied as a result of Mr. Mintz’s submissions and my questioning of Mr. Benoist that he understood the nature and consequences of his guilty pleas. I asked madam clerk to arraign Mr.

Benoist on the counts as indicated by Mr. Di Cecco. [ 42 ] There is no evidence that on October 29, 2010 when Mr. Benoist entered his pleas of guilty that he was cognitively impaired, ill, confused, under pressure, on drugs or medication, or without time to formulate decisions and instructions. When the clerk was arraigning Mr. Benoist there was some confusion surrounding counts one and two and I inquired of Mr.

Benoist if it was his understanding that count one was a trafficking charge holding out a substance to be cocaine and he indicated that he understood this and further I asked if he understood the second count was a trafficking charge holding out a substance to be heroin and he responded he understood this too. Mr. Benoist’s answers to my questions during his arraignment directly contradict the position which he is now taking; namely, that he did not know or understand what charges he was pleading guilty to. On arraignment, Mr. Benoist unequivocally entered his own pleas of guilty.

He was then arraigned on the charge pursuant to the Excise Tax Act and he unequivocally entered a plea of guilty. No one forced Mr. Benoist to plead guilty. I do not accept Mr. Benoist’s assertions that he did not fully understand what he was pleading guilty to. [ 43 ] After he entered his guilty pleas I asked Mr. Benoist to have a seat and listen to the facts as read by the Crown, Mr. Di Cecco. I was then provided the agreed statement of facts and appendices, which was filed as Exhibit 1. Mr. Di Cecco also read the facts into the record. I have no doubt that Mr.

Mintz went over the agreed statement of facts with Mr. Benoist before taking instructions from him to plead guilty. Mr. Mintz is very experienced senior criminal counsel and in the weeks, if not months, preceding the November 1, 2010 commencement of Mr. Benoist’s trial, I also have no doubt that he was reviewing the Crown disclosure with Mr. Benoist. I also have no doubt that it was during this review and preparation that Mr. Benoist decided that he wanted to resolve his charges by pleading guilty. [ 44 ] After Mr. Di Cecco read the agreed statement of facts, Mr.

Mintz admitted that they were substantially correct. This was done in Mr. Benoist’s presence. In my view, Mr. Mintz’s acceptance of the facts as being substantially correct amounted to an admission by Mr. Benoist himself. He did not ask to speak to Mr. Mintz after the facts were read in nor did he object to any of the facts that were read in. In fact, I raised an issue as to whether Count 1 should be amended to read that Mr.

Benoist trafficked in a substance held out to be cocaine and heroin instead of separate charges alleging that he trafficked in a substance held out to be cocaine and another alleging he trafficked in a substance held out to be heroin, since the facts indicated he held out the “white lightning” to contain a little bit of cocaine, heroin and speed. This amendment was agreed to and Mr. Benoist’s plea on Count 2 was struck and Count 1 was amended. While I was having this discussion with counsel, Mr.

Benoist did not jump up and say that he was not guilty of trafficking in any substance held out to be cocaine or heroin as he never sold drugs to any of the residents of the Manor. All that was indicated by Mr. Mintz was that he had no objection to the amendment and striking the guilty plea to Count 2. [ 45 ] Mr. Mintz was, of course, unable to admit the facts as substantially correct, or indeed participate in the guilty plea proceeding at all, unless Mr. Benoist had admitted his guilt and sufficient facts to support his intended guilty pleas. Mr. Mintz would be ethically prevented from being involved in Mr.

Benoist’s guilty pleas if he knew that Mr. Benoist was maintaining his innocence on some of the charges the Crown wanted him to plead guilty to. [ 46 ] Mr. Benoist told me during the inquiry into whether I should strike his guilty pleas that he holds Mr. Mintz in the highest regard. It was his position that Mr. Mintz did not do anything improper to get him to plead guilty nor did Mr. Mintz put any pressure on him to plead guilty. Further, it was his position that Mr. Mintz never misrepresented what the Crown’s position on sentence was going to be. In fact, at the conclusion of Mr.

Benoist’s guilty pleas before the matter was adjourned for sentencing, Mr. Di Cecco put on the record that he would be asking for a penitentiary sentence of four years for the drug charges and a substantial fine on the Excise Tax Act charge. Mr. Benoist does not say that Mr. Mintz told him he had to plead guilty. [ 47 ] It is Mr.

Benoist’s position that he entered the guilty pleas to the charge of trafficking in a substance held out to be cocaine and heroin and the possession for the purpose of trafficking in barbital because he thought that he would be able to explain that he was, in fact, not guilty of the two most serious charges during the sentencing hearing. Mr. Benoist’s position does not make any sense at all. First, he implied that Mr. Mintz was aware of Mr. Benoist’s thinking. This runs completely contrary to Mr. Mintz’s professional and ethical responsibilities. I do not accept Mr. Benoist’s assertion that Mr.

Mintz would have been involved in assisting Mr. Benoist to plead guilty to charges that Mr. Benoist maintained he was innocent of. Second, Mr.

Benoist himself entered his pleas of guilty to these charges, he heard the facts read out, he knew the facts were part of an agreed statement of facts which had been prepared by the Crown and his lawyer, he told me during the plea comprehension hearing that he was aware of the facts the Crown was going to rely upon to support the guilty pleas, he also told me that he was prepared to admit they were substantially correct and after the facts were read in and filed as an Exhibit his lawyer agreed they were substantially correct. In my opinion, Mr.

Benoist was completely aware of what he was pleading guilty to, he was completely aware of the facts in the agreed statement of facts and he admitted those facts were substantially correct. [ 48 ] It is Mr. Benoist’s position that he is not guilty of the trafficking in a substance held out to be cocaine and heroin and he is not guilty of the possession of the barbital found in his garage and attic for the purpose of trafficking. He maintained that he did not fully understand what he was pleading guilty to.

He admits selling the cigarettes and marijuana to the residents of Fairpark Manor but denies either providing free samples or selling barbital to the residents. It is his position that these residents owed him money for the cigarettes and have made up a story about him providing the barbital. [ 49 ] First, Mr. Benoist’s position is completely irreconcilable with what he said during his plea comprehension and what took place during his arraignment and when the facts were read in. There can be no doubt that Mr. Benoist was fully aware of the charges of trafficking in a substance held out to be cocaine and heroin.

Count 1 was amended to include both cocaine and heroin and the guilty plea respecting Count 2 was struck. The charge relating to possession of barbital for the purpose of trafficking and the facts relating to the barbital that was found in Mr. Benoist’s house were unambiguous and unequivocal and Mr. Benoist indicated he was aware of them and prepared to admit them as being substantially correct. I do not accept his assertion that he did not fully understand or appreciate the

nature of the charges he was pleading guilty to, [ 50 ] Second, the police discovered a substantial quantity of barbital in two locations in Mr. Benoist’s house during the execution of a search warrant, 7.9 kilograms was discovered in the attic and 33 grams was found in the garage along with 186 grams of marijuana. Mr. Benoist admits to possessing the marijuana for the purpose of trafficking.

The police discovered six small baggies containing white powder which were subsequently analyzed as barbital in Cameron Stewart’s room, the resident at Fairpark Manor, who overdosed on the white substance he said he received from Mr. Benoist. In my view, it defies co-incidence that the police found substantial quantities of the drug barbital in Mr. Benoist’s house, the same drug he is alleged to be providing to residents of Fairpark Manor and which is found in Cameron Stewart’s room after he overdosed. Further, it defies co-incidence that Mr.

Benoist admits he is in possession of marijuana for the purpose of trafficking and it is found together with 33 grams of barbital and that he did not know of the existence of the barbital in the attic. It also defies co-incidence that Mr. Benoist admits to possession of the illegal cigarettes and they are found in the attic with the 7.9 kilograms of barbital. I do not accept Mr. Benoist’s assertion that he did not have any knowledge of the barbital found in his house. [ 51 ] This was not a case where Mr. Benoist was subject to any pressure by counsel or a third party to plead guilty.

This was not a situation where Mr. Benoist on the first day of his trial had to make a last-minute, panicked decision; rather, Mr. Mintz appears to have had extensive negotiations with the Crown, Mr. Di Cecco, to resolve Mr. Benoist’s charges without the necessity of a trial. Two weeks before the commencement of the trial the charges were brought forward so that a continuing judicial pre-trial could be arranged before me. Counsel had prepared an agreed statement of facts upon which the guilty pleas were to be entered. The Crown’s position on sentence had softened to some extent, which implies that Mr.

Mintz had engaged in some plea negotiations with the Crown some time before the commencement of the trial. (See R. v. Mitchell , [2010] O.J. No. 4473 (Ont. C.A.) ) [ 52 ] In my view, the observations of the Ontario Court of Appeal in R. v. Carty , supra , at para. 37 are instructive: …the circumstances in which the appellant found himself were hardly unique, and are shared by many who must decide whether to plead guilty to criminal charges. That decision by its very nature must be made when individuals are under considerable pressure.

That pressure is often the product of the grim realization that there is no viable alternative to a guilty plea, and that the consequences of a guilty plea will be immediate, serious and far-reaching. The pressures inherent in the nature and timing of the decision to plead guilty cannot in and of themselves in validate a guilty plea on appeal. People are capable of deciding what is in their best interests even when they are under considerable pressure and none of the available options are attractive. [ 53 ] When I was attempting to find an agreeable date to deal with Mr.

Benoist’s application to strike his guilty pleas, despite his assertions earlier about wanting to deal with the charges as soon as possible, Mr. Benoist, in my opinion, was attempting to delay the proceedings. In fact, Mr. Benoist’s purpose, from the first pre-trial I conducted with Mr. Pazuki on January 7, 2009, appears to be an attempt to delay indefinitely the conclusion of the charges he is facing. It was certainly my impression when I was attempting to fix a date that Mr. Benoist had no interest in setting any date let alone an early one. [ 54 ] These charges were first laid in August 2008.

It has been close to two and a half years since the first judicial pre-trial was held, when resolution was first discussed and canvassed. In my opinion, Franklin Benoist’s pleas of guilt were unequivocal, voluntary and informed. He understood completely the nature and consequences of his guilty pleas on October 29, 2010. In my view, Mr. Benoist has not shown on a balance of probabilities that there is any reason to doubt the validity of those guilty pleas. Conclusion [ 55 ] The application is dismissed. Released: June 7, 2011 Signed: “Justice Peter C. West”