Court of Queen’s Bench of Alberta Citation: R. v. Caines, 2011 ABQB 82 Date: 20110214 Docket: 070060157Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Jeffrey Mark Caines, John Reginald Alcantara and Alan Peter Knapczyk Accused _______________________________________________________ Delay Motion Reasons for Judgment of the Honourable Madam Justice S.J. Greckol _______________________________________________________ I. Introduction........................................................ Page: 5 II. Judicial History..................................................... Page: 6 A. Provincial Court Proceedings. ................................... Page: 6 B. Court of Queen’s Bench Proceedings............................. Page: 13 III. The Issue. ........................................................ Page: 30 IV. The Law.......................................................... Page: 30 A. Charter Provisions............................................ Page: 30 B. Section 11(b) Discussion....................................... Page: 31 1. Length of the delay...................................... Page: 33 2. Waiver of time periods................................... Page: 33 3. Reasons for the delay.................................... Page: 35
Transcript
Court of Queen’s Bench of Alberta
Citation: R. v. Caines, 2011 ABQB 82
Date: 20110214Docket: 070060157Q1
Registry: Edmonton
Between:
Her Majesty the Queen
- and -
Jeffrey Mark Caines, John Reginald Alcantara and Alan Peter Knapczyk
[1] The three Accused, Jeffrey Mark Caines (Caines), John Reginald Alcantara (Alcantara)and Alan Peter Knapczyk (Knapczyk), have applied for a stay of proceedings based onunreasonable delay pursuant to ss. 7, 11(b) and 24(1) of the Charter. The Crown stresses that thisis not an application for s. 24(1) relief based on a breach of the right of disclosure. Nor is it anapplication based on abuse of process.
[2] This prosecution has resulted from a joint forces police investigation involving theEdmonton and Fort McMurray Drug Sections of the Royal Canadian Mounted Police (RCMP) aswell as the Edmonton Police Service (EPS). The investigation, referred to as Project Koker, alsoengaged the Edmonton Integrated Proceeds of Crime Unit (EIPOC).
[3] The investigation commenced on or before February 7, 2005. Throughout the course ofthe investigation the police used various techniques including searches of electronic databases,physical surveillance, informants, telephone number recorder warrants, tracking device warrants,video surveillance warrants and search warrants obtained pursuant to the Criminal Code (Code),and the Controlled Drugs and Substances Act (CDSA).
[4] The police also obtained five authorizations to intercept private communications unders. 186 of the Code, designated as follows:
1. WT1709 granted by Slatter J. on August 23, 2005, and valid for 60 daysup to and including October 21, 2005;
2. WT1712 consisting of two authorizations granted by Slatter J. on October17, 2005, each valid for 60 days up to and including December 16, 2005;and,
3. WT1713 consisting of two authorizations granted by Slatter J. onDecember 14, 2005, each valid for 60 days up to and including February13, 2006.
[5] On November 24, 2006, two separate Informations were sworn (Docket Nos.061444279P1and 061444l47P1). Alcantara was charged in both. Caines and Knapczyk also werecharged in Information No. 061444279P1. On November 26, 2006, Alcantara and Knapczykwere arrested in Edmonton. Caines was arrested in Fort McMurray on December 5, 2006.
[6] On January 8, 2007, Information No. 070060157P1 was sworn as a replacement forInformation No. 061444279P1. Caines, Alcantara and Knapczyk were jointly charged in this newInformation with conspiracy to traffic in cocaine contrary to s. 5(1) of the CDSA and s. 465(1)(c)of the Code and substantive trafficking contrary to s. 5(1) of the CDSA. Caines also was chargedin a separate count with a criminal organization offence contrary to s. 467.13 of the Code.
Page: 6
Alcantara and Knapczyk were jointly charged with a criminal organization offence contrary to s.467.12 of the Code. Throughout the disclosure, this prosecution was referred to as “Koker A”.
[7] On December 4, 2007, Information No. 071521769P1 was sworn as a replacement forInformation No. 061444147P1. In this Information, Alcantara was jointly charged with BeauMichael Yakimishyn, Sean David Critch, Derek Albert Ezekiel and Nicholas James Roberts withconspiracy to traffic in cocaine contrary to s. 5(1) of the CDSA and s. 465(l)(c) of the Code. Thefour accused also were charged separately with various other drug and weapons offences.Throughout the disclosure, this prosecution was referred to as “Koker B”.
[8] The police also arrested a number of other persons at various locations who were chargedin multiple separate proceedings. Ricco King, Farhan Haider Sattar, Kamran Sattar and MelissaDiane King were charged with various drug related offences in Information No. 061444048P1.The preliminary inquiry in that matter, held in Calgary, has been concluded and the pre-trialmotions were scheduled to commence in the Court of Queen’s Bench on November 8, 2010.Throughout the disclosure received by the Applicants, this prosecution was referred to as “KokerC.”
[9] The disclosure received by the Applicants consists of over 8,317 documents totalling inexcess of 400,000 pages. This material was provided to the Defence predominately in electronicform by way of an external hard drive and multiple DVDs. The narrative logs of the interceptedprivate communications contain 51,827 sessions totalling 59,530 pages. All disclosure providedto one counsel in the Koker prosecutions was provided to all, whether relevant to the particularKoker prosecution that counsel was involved in or not.
[10] In a Notice of Intention under s. 189(5) of the Code dated March 6, 2008, the Crown gavenotice that it would seek to introduce 464 intercepted private communications into evidence attrial. A disc containing the intercepted private communications and four binders containing thetranscripts in hard copy have been entered as exhibits in the trial, although as a result of latedisclosure, the admissibility of this material will be re-visited.
II. Judicial History
[11] Counsel for Alcantara prepared a summary of the judicial history of Koker “A,” whichwas adopted by the Crown and largely adopted by Caines. Knapczyk adopted the judicial historyaccepted by Caines. Caines and Knapczyk have provided additional information that pertains tothem.
A. Provincial Court Proceedings
November 26, 2006
Page: 7
[12] Alcantara and Knapczyk were arrested on November 26, 2006.
December 2006
[13] Caines turned himself in to the police on December 5, 2006. He did not speak to judicialinterim release on Information No. 061444279Pl, and was detained in custody. He retainedcounsel shortly after his arrest and was represented by Jamel (“Jake”) Chadi.
[14] Following a show cause hearing on December 7, 8 and 15, 2006, Alcantara was deniedjudicial interim release by Day P.C.J. in relation to both R. v. Caines (Information No.061444279PI-Koker A) and R v. Alcantara (Information No. 061444147P1-Koker B). Alcantarawas represented by Chady F. Moustarah throughout the show cause hearing.
[15] Knapczyk was released on recognizance on December 15, 2006, and was represented byMr. Chadi from about December 4, 2006.
January 2007
[16] Replacement Information No. 070060157P1 in relation to the present matter, Koker A,was sworn on January 8, 2007.
[17] On January 29, 2007, that Information came before Kerby P.C.J., at which time processwas transferred from the original Information. Mr. Gill, appearing as agent for Mr. Chadi forCaines, indicated that a Designation of Counsel had been signed by Caines but had not yet beenfiled. Mr. Gill also appeared as agent for Mr. Chadi for Knapcayk. Election and plea werereserved to February 26, 2007.
[18] Mr. Moustarah again appeared for Alcantara. He advised the Court he had received aDVD containing initial disclosure. Alcantara’s plea was reserved to February 26, 2007.
February 26, 2007
[19] The present matter (Koker A) returned before Le Reverend P.C.J. on February 26, 2007.The case was adjourned to April 23, 2007.
April 23, 2007
[20] Koker A returned before Spence P.C.J., at which time it was further adjourned byagreement of counsel to May 1, 2007.
Page: 8
May 1, 2007
[21] Both Koker A and Koker B returned before Caffaro P.C.J. on May 1, 2007. Gregory A.Rice appeared as Crown counsel. He advised the Court that it was the Crown’s intention toconduct consecutive preliminary inquiries, with the prosecution in Koker B proceeding first. Thefollowing exchange took place between the Court and Mr. Rice respecting the scheduling ofdates:
MR. RICE: . . . I can advise the Court that pursuant to this we need to set somePreliminary Inquiry dates. I’ve -- our department has canvassed with JudgeLefever with regard to opening up a courtroom. The idea is going to be to open upa courtroom in late September, October, and run what I would submit to be thefirst Preliminary Inquiry which would be with regard to Mr. Alcantara, Mr.Yakimishyn, and Mr. Critch, et al, Mr. Ezekiel.
THE COURT: M-hm.
MR. RICE: Then after that one is finished, Mr. Hrabcak of our office has thecarriage of the second file which is the Mr. Alcantara, Mr. Caines, and Mr.Knapczyk file. So the idea will be to run back to back.
THE COURT: Okay, consecutively.
MR. RICE: Consecutively, and then we’ll try to fit Mr. Roberts’ matter in there aswell. He’s a stand-alone but it’s on the same wiretap affidavit. So we’re going totry and do that, set up the dates.
[22] All counsel agreed to a further brief adjournment to May 4, 2007 for the purpose ofobtaining dates for the preliminary inquiries.
May 4, 2007
[23] Caines, Alcantara (with D. Song acting as agent for Mr. Moustarah) and Knapczykappeared before Wong P.C.J. on May 4, 2007, at which time they made elections for trial byjudge alone and entered not guilty pleas in both prosecutions. Gregory Rice appeared again forthe Crown on both cases and advised the court that preliminary inquiry dates had been reserved.The preliminary inquiry in Koker B, which the Crown wished to proceed with first, wasscheduled for February 25, 2008 to April 4, 2008, with a pre-preliminary inquiry conferencescheduled for November 1, 2007. The preliminary inquiry in Koker A was scheduled for April 7,2008 to May 22, 2008, with a pre-preliminary inquiry conference scheduled for December 4,2007.
Page: 9
June 1, 2007
[24] The hard drive containing the majority of disclosure was delivered to Mr. Chadi, counselfor Caines and Knapczyk.
August 27, 2007
[25] The hard drive containing the majority of disclosure was delivered to Clayton Rice,counsel for Alcantara.
November 13, 2007
[26] Both cases were brought forward at the request of Anderson P.C.J. for a casemanagement conference, the purpose of which was to ensure that issues had not arisen whichwould prevent the preliminary inquiries from proceeding on the scheduled dates.
[27] Alcantara’s present counsel, Clayton Rice, confirmed that he had been retained byAlcantara on Koker A, having become counsel of record for Alcantara in Koker B on September27, 2007.
[28] Various issues were discussed, including the status of disclosure, witness lists andadmissions. The Court also confirmed that other pre-preliminary inquiry conferences had beencancelled.
[29] The issue of Mr. Chadi’s conflict of interest was raised by Anderson P.C.J. as Mr. Chadiwas representing Caines; John Norman Caines, an alleged co-conspirator; Charles Flight(“Flight”), an alleged co-conspirator; Knapczyk; Mark Andrew Hoskins (“Hoskins”), an allegedco-conspirator; and Michael Marche (“Marche”), a main Crown witness and unindicted co-conspirator. Neither Crown nor other Defence counsel raised an objection at the time to Mr.Chadi representing these individuals.
November 16, 2007
[30] Caines, represented by Chadi, spoke to judicial interim release in relation to the presentmatter (Information No. 070060157P1) before Day P.C.J.. The Crown opposed his bailapplication.
November 22, 2007
[31] Caines and Knapczyk signed the first set of consents regarding their joint representationby Mr. Chadi and certified they had received independent legal advice on the issue.
December 7, 2007
Page: 10
[32] Caines’ bail hearing concluded on December 7 with Caines being granted bail.th
January 25, 2008
[33] Caines’ bail order was signed after a number of changes were made, some of which wereconsented to and some opposed by the Crown. Bail consisted of $61,250.00 in cash andsecurities totalling $1,000,000.00
January 31, 2008
[34] Caines was released from custody after posting the required amounts.
February 22, 2008
[35] Caines’ bail order was revoked upon Crown application. Caines returned to custody,having been on release for 21 days.
[36] Caines signed an amended Consent form regarding representation by Mr. Chadi andStewart F. Brownlee signed the Certificate of Independent Advice.
[37] Knapczak signed an amended Consent form regarding representation by Mr. Chadi andAjay Juneja signed the Certificate of Independent Advice.
February 25,2008
[38] The preliminary inquiry in Koker B commenced before Malin P.C.J. on replacementInformation No. 071521 769P1. Prior to the preliminary inquiry, Nicholas James Roberts wasadded as an accused in that Information and on February 21, 2008, a stay of proceedings wasentered respecting the accused Derek Albert Ezekiel.
March 4, 2008
[39] A further case management conference was initiated by Anderson P.C.J. to addresswhether a conflict of interest existed by virtue of Mr. Chadi acting for both Caines and Knapczykin Koker A. The Court provided the following background to the issue for the benefit of counselfor Alcantara, who had not been aware of the conflict which had arisen in a related proceedingregarding John Norman Caines and Flight, who had been charged separately:
THE COURT: Okay. Here is what brought us here, as I mentioned, an issue ofconflict arose about a week and a half ago in a preliminary inquiry for a differentMr. Caines -- I assume they are related. I do not know -- and a Mr. Flight, who arejointly charged with a conspiracy and some other charges, I believe. Thatpreliminary inquiry was scheduled to commence on Monday of this week, and that
Page: 11
commencement date has been put over a week while the issue of conflict is sortedout. The -- and it may or may not be able to proceed. It punctuated, however, thefact that if a conflict rears its head in actuality in proceedings, particularly at theeleventh hour, it can cause cases to go sideways very quickly, and that isparticularly of concern where accused persons are in custody and particularlywhere the accused persons in custody are not the person to whom the conflictrelates, and for that reason, I wanted to address as quickly as possible mostspecifically any question of conflict that could exist in this prosecution becauseMr. Chadi acts for --
MR. CHADI: Knapczyk and Caines.
THE COURT: -- two persons in relation to this same prosecution. Now, I do notbelieve they are actually jointly charged with respect to the same charges, --
MR. HRABCAK: Some of them, they are.
THE COURT: . . .Now, I am assuming that in light of the issues that have arisenin the other matter, that the Crown has turned their mind more closely to whetherfrom the Crown’s perspective there is a risk --
MR. HRABCAK: Yes.
THE COURT: -- conflict, and I am sure, Mr. Chadi. You as well have mulled thatover as well. So -- and that is something that in my view really should held orshould be dealt with in the presence of the accused. So that, Mr. Rice, is thehistory of how we got here. You obviously have an interest in this issue becauseMr. Alcantara would be affected obviously if matters had to be adjourned.
[40] The case management conference was adjourned to the following day for continuation sothat the three accused could be present.
March 5, 2008
[41] The case management conference in this matter resumed. Counsel for Alcantara took theposition that although the potential conflict of interest issue more directly affected Caines andKnapczyk, “...there is always a potential effect on my client.” The following exchange then tookplace between the Court and Crown counsel respecting any potential conflict of interest:
THE COURT: So maybe, Crown I will ask you first of all whether or not theCrown -- well, what is the Crown’s position as it relates to any potential conflictin this matter...
Page: 12
MR. HRABCAK: ... [W]ith respect to Mr. Jeffrey Caines and Mr. Knapczykthey’re in a slightly different situation than Mr. Flight and Mr. John Caines. As Isee a defence, any type of defence to this particular case, Mr. Jeff Caines and Mr.Knapczyk would not have opposing interests, that they would be like mind in anytype of defence that they wish to present. So in that aspect I don’t foresee aconflict that would arise...The waivers tend to cover off potential or at least thesetwo accused’s knowledge that such a situation could arise or in the future thatthey’ve accepted that they wish to waive their rights in this particular situation. SoI can’t stand here and say it’s not going to happen.
THE COURT: No, I understand that.
MR. HRABCAK: But I don’t foresee it happening unless it happens in the samefashion as what happened in Mr. Flight and Caines’ and I don’t -- I would expectthat that’s not going to happen.
[42] The Court then asked Mr. Chadi about his position regarding the risk of a conflict arising:
THE COURT: All right. So, Mr. Chadi, what is your position with respect to anyrisk of conflict of interest compromising the ability of this to proceed in a timelyway?
MR. CHADI: Thank you, Your Honour. Your Honour, in the related caseunfortunately the appearance reared its ugly head and it was clarified by thisHonourable Court very clearly as to how and when it can arise. Obviously thisCourt has got a great deal of experience in that particular area.
When we deal with the matters, and quite frankly I never envisioned that it couldhappen even in Flight and in Caines, but it did and obviously we’re extremelycareful in how we assess this second matter, but Mr. Hrabcak relatively andreasonably put the position before the Court.
Now again we can never predict with any great accuracy, but you have myundertaking that every precaution in this regard will be undertaken so that thismatter can move forward.
April 3, 2008
[43] The evidence and the submissions of counsel on committal were concluded in thepreliminary inquiry before Malin P.C.J. in Koker B. The Court reserved its decision oncommittal to April 16, 2008.
April 7, 2008
Page: 13
[44] The preliminary inquiry in Koker A commenced before Philp P.C.J. on Information No.070060l57Pl.
April 16, 2008
[45] All four accused in Koker B were committed to stand trial and the case was scheduled forarraignment in the Court of Queen’s Bench on May 30, 2008.
[46] Counsel for Alcantara advised the Court that his client intended to apply for judicialinterim release under s. 523(2)(b) of the Code. The application was scheduled for June 13, 2008.
June 11, 2008
[47] The evidence and the submissions of counsel on committal were concluded in thepreliminary inquiry in Koker A. The Court reserved its decision on committal and the case wasadjourned to July 14, 2008.
June 13, 2008
[48] Alcantara was granted judicial interim release by Malin P.C.J. in relation to Koker B on acash deposit in the amount of $25,000 and security having a value of $125,000. The conditions ofrelease included surrender of his passport, reporting in person twice a week and a 24-hour housearrest provision with a knock-and-respond clause. Alcantara did not enter into the recognizanceuntil September 9, 2008, after being granted judicial interim release on September 5 by Philpth
P.C.J. in Koker A.
July 14, 2008
[49] All three accused in Koker A were committed to stand trial and the case was scheduledfor arraignment in the Court of Queen’s Bench on August 29, 2008. Counsel for Alcantaraadvised the Court that his client intended to apply for judicial interim release under s. 523(2)(b)of the Code. As mentioned above, the application was scheduled for September 5, 2008.
September 5, 2008
[50] Alcantara was granted judicial interim release by Philp P.C.J. in Koker A on a cashdeposit in the amount of $50,000. The conditions of release included a 24-hour house arrestprovision with a knock-and-respond clause, a geographical mobility limitation and a requirementthat he surrender into custody at the Edmonton Remand Centre (ERC) 96 hours before any trialor summary disposition.
September 9, 2008
Page: 14
[51] Alcantara entered into recognizances respecting each bail order and was released frompre-trial custody. All outstanding proceedings up to that date in the Provincial Court wereconcluded and both cases proceeded to arraignment in the Court of Queen’s Bench.
B. Court of Queen’s Bench Proceedings
May 30, 2008
[52] The case in Koker B first appeared for arraignment before Sanderman J. in the Court ofQueen’s Bench. Ms. D.J. Alford appeared for the Crown on behalf of Gregory A. Rice. Ms.Alford advised the Court that the Crown had not filed the Indictment but she undertook to do so.Ms. Alford requested an adjournment of the arraignment “for some three weeks” so that a trialjudge might be assigned and scheduling issues regarding pre-trial motions could be addressed.
[53] The three Defence counsel took slightly different positions. Charles B. Davison appearedas agent for counsel for Alcantara and suggested that arraignment be adjourned to September 12,2008 to allow further time for briefing the disclosure. Paul L. Moreau, counsel for Roberts, wasnot opposed to that suggestion but requested that Sanderman J. ask the Chief Justice to appoint atrial judge and a pre-trial conference could then be scheduled in June or July. Naeem Rauf,counsel for Critch, expressed a concern that his client had been in custody for “close to two yearsnow.”
[54] The Court adjourned the arraignment to June 27, 2008, and advised counsel that duringthe interim he would arrange for the appointment of a trial judge and requested that all counsel beprepared to schedule dates at that time.
June 27, 2008
[55] Alcantara returned to the Court of Queen’s Bench for arraignment in Koker B. A trialjudge had still not been assigned. Crown counsel suggested that a bifurcated process be adoptedwhereby pre-trial motions could commence with warrantless search motions. The suggestion wasto book a week in late September, three or four days in October and then continue in December.That proposal was summarized in the following exchange between the Court and Mr. Rice forthe Crown:
THE COURT: All right. So the suggestion is let’s do that in October, thewarrantless searches, come back in December after you’ve got a ruling on that, doyour procedural wrangling, you know, to -- or get deadlines even in October fornotice at some time, come back and then decide in December how much timeyou’re going to need to fight about other matters.
MR. G. RICE: That’s correct.
Page: 15
[56] Counsel for Alcantara was opposed to a bifurcated procedure and suggested that one day,February 2, 2009, be scheduled for all pre-trial motions. The following exchange then took placebetween the Court and Crown counsel:
THE COURT: Well, if anything, and Mr. -- Mr. Danyluik is here today. I’m goingto -- I’m not throwing any arrows his way, but talk to Justice Macklin about it. It’sa crappy system, you know, when you -- when you do little pieces like that. He’sinvolved in something right now with -- well, we have two Rices here, the twoTchirs and -- and Mr. Danyluik and I think Mr. Sprake and it’s not working very,very well, you know.
. . .
The matter that Justice Macklin is -- is running right now, it’s just been a horrorshow for the scheduling of the Court because out -- the Court schedule comes outin half year segments and that’s where I’m more inclined to go along with Mr.Rice’s suggestion about doing it in February, but, you know, I’m -- don’t want toimpose my will upon you, but I’m just trying to do something that’s efficient forthe Court and efficient for all of you so that if you know it’s going to go inFebruary, you’re -- you’re set in February.
MR. G. RICE: Well sir, I’ll -- I’ll go with your ruling. My idea was that would bethe most expeditious way to deal with it, but if--
THE COURT: Yeah, but, well, only -- only if-- only if the warrantless searchesdon’t go in and the -- and the case collapses, then that’s fine, but that’s not goingto happen here. You know, those types of trials where you decide one matterthat’s only going to take a week is fine, if that’s going to resolve the entire trial.That’s not going to resolve this entire trial, so why do some here, some here, somehere? Let’s just start it in February.
[57] The pre-trial motions were set for February 2, 2009 to May 29, 2009 and the case wasscheduled to return before Sanderman J. on September 5, 2008 for a case managementconference.
August 28 and 29, 2008
[58] The Crown filed the Indictment in Koker A. The first appearance for arraignment camebefore Bielby J. on August 29, 2008. The status of the two cases was summarized by Gregory A.Rice for the Crown in the following exchange with the Court and Kevin P. Gubbins, whoappeared as agent for counsel for Alcantara:
Page: 16
MR. RICE: My Lady, there’s been discussion between Mr. Chadi and Mr. Ricewith respect to this date. Trying to get a hold of Mr. Hrabcak with respect tosetting up a proper date. There is also another file related to this, a different filewith some of the same accused, and there’s been issues with respect to some pre-trial motions that are going out, so they are trying to have these suggestions, so Iam simply asking it go to the next arraignment date.
MR. GUBBINS: Same instructions with respect to Mr. Alcantara.
THE COURT: Well, these charges are fairly dated and Mr. Cairns (sic), at least, isgoing to -- remains in custody, with no immediate plans to bail application, so Iam a bit concerned with setting it over.
MR. RICE: When I spoke to Mr. Hrabcak who is really in charge of this particularapplication, this is a project called Koker A, and I can tell that you the pre-trialmotions for Koker B, which is my case, are set from February to May or June of2009. So it is a bit of a scheduling issue. I can tell you that the preliminary inquiryon this matter, Mr. Hrabcak’s, so Koker A, was completed just at the end ofspring just before summer, so Mr. Hrabcak told me that he didn’t expect thatdefence counsel would be prepared to set dates today. He didn’t have anydifficulty with that and that -- but to bring his calendar just in case.
So those were basically the comments of Mr. Hrabcak. So what I can take fromthat is he doesn’t have any difficulty with this, and I think it probably would beprudent. It is becoming a bit of a scheduling problem, so it probably would beprudent to put it over to the next arraignment date.
. . .
MR. GUBBINS: The accused are involved -- some of them are involved in KokerA and Koker B, so they can’t be in at the same time.
MR. RICE: So it is a bit of a -- a bit of a conundrum.
[59] The Court adjourned the arraignment for one week and requested that counsel contact thetrial co-ordinator to provide their available dates for a long trial so that information would beavailable to the Court on the return date. Mr. Rice for the Crown further advised the Court that hewas hopeful that Mr. Hrabcak would be available on the next date.
September 5, 2008
[60] Alcantara returned before Sanderman J. for a case management conference in Koker B.The trial date of February 2, 2009 was confirmed and December 12, 2008 was set as the deadline
Page: 17
for filing pre-trial motions. The case was scheduled to return to be spoken to on November 28,2008 before Sulyma J., who had been assigned as the trial judge.
[61] Alcantara also appeared on the arraignment list in Koker A. Ms. M. Karout appeared asagent for Mr. Chadi and advised the Court that Mr. Chadi was requesting an adjournment forfour weeks. The following exchange took place when the Court inquired whether Mr. Chadi wasin a conflict of interest position:
THE COURT: Yes. Appeared before Justice Bielby on the 29th, and shesuggested you get trial dates, and I see that, is Mr. Chadi acting for two people? Isthere a conflict?
MS. KAROUT: I did address that with Mr. Chadi this morning, sir. Hisinstructions to me on behalf of both Mr. Caines and Mr. Knapczyk was to ask thatthis matter go over for a period of four weeks.
I believe there was some discussions to be taken between himself andMr. Hrabcak eventually resolving the Caines matter and should that not beresolved then, of course, Mr. Chadi would have to get off the record for one of thetwo, I believe, if not both, but that was his intention, was to see if we couldresolve Mr. Caines’ matters and Mr. Knapczyk would eventually -- would go totrial if that was to be done. So he is asking for a month to facilitate that withMr. Hrabcak.
[62] Counsel for Alcantara made the following submissions concerning the potential conflictissue:
MR. C. RICE: I am not too concerned about a brief or three-week window;however I do have a concern arising from something else that my friendmentioned this morning and that’s a potential conflict.
THE COURT: I see a real conflict here. I see a real conflict. I don’t know whatMr. Hrabcak’s feelings are, I don’t know the case, but it is difficult not to see onearising.
MR. HRABCAK: Yes. It--that issue had come up during the prelim and had beendiscussed and had been resolved for the purposes of prelim.
THE COURT: Okay.
MR. C. RICE: I don’t know what -- quite frankly, sir, I see two conflicts that Mr.Chadi has, and I don’t know which one my friend is referring to. Is she referring
Page: 18
to a conflict between Mr. Caines and Mr. Knapczyk or is she referring to aconflict that Mr. Chadi has because he was counsel for a major Crown witness?
THE COURT: These are things that --
MR. C. RICE: Which one?
THE COURT: I’d say two.
MR. C. RICE: That’s what I said, sir.
THE COURT: That’s what I say too. So I think --
MR. C. RICE: And my concern is that if that issue now arises at arraignment,after a preliminary was conducted by Mr. Chadi in these circumstances, this caseis about to go south. It will take new counsel months to prepare this, sir. I wantyou to be aware that this is a very, very big file.
THE COURT: Oh, I am well aware, Mr. Rice.
[63] Counsel for Alcantara advised the Court that he had had discussions with Crown counseland, “...we’re on the verge of scheduling dates.” It was suggested that Mr. Chadi be personallypresent on the next arraignment date to address the conflict of interest issues. The Court agreedand adjourned the arraignment to September 26, 2008.
September 15, 2008
[64] The third prosecution in R. v. King (Koker C) proceeded to preliminary inquiry beforeVeldhuis P.C.J. in Calgary. The proceedings commenced with Mr. Chadi, counsel for Hoskins,advising the Court that he was in an “untenable position” as a result of a conflict of interest andcould not continue to act for Hoskins. The conflict issues were addressed by John D. James,counsel for King, who advised the Court that Mr. Chadi previously was counsel for Marche andDebbie Weiss, who were Crown witnesses, and as well Mr. Chadi was counsel for Caines, whowas an unindicted co-conspirator. The conflict issues were further summarized for the Court bySimon Lord, Q.C., counsel for Farhan Sattar, as follows:
MR. LORD: Mr. Chadi was former counsel for Marche. Marche is the principalcivilian accomplice informant witness, is to be that witness on behalf of theCrown.
. . .
Page: 19
Mr. Chadi is deeply conflicted as to Mr. Marche because of his prior acting forMr. Marche, and Mr. Marche is going to give evidence, I anticipate, against Mr.Hoskins and Mr. Sattar at this proceeding.
In addition to Mr. Chadi being conflicted by his representation of Caines, andalthough Caines may belong in one side of this alleged conspiracy or another side,the fact is that Caines is the alleged intended recipient of all the drugs at issue inthis proceeding. So the second limb of major conflict with Mr. Chadi is hisrepresentation which continues of Mr. Caines.
The third limb, in my respectful submission, of conflict with Mr. Chadi is -- is theconflict which arises with Corporal Anderson.
. . .
Mr. Chadi, unhappily, is conflicted directly with Mr. Anderson because one ofMr. Anderson’s thrusts - but I have no doubt it was completely unwarranted - butnevertheless a thrust by Anderson in interview with Marche, was a suggestion putto Marche that the habitual retainer which the men in this conspiracy had of Chadiwent beyond retainer of counsel and extended to a retainer to launder the proceedsof the conspiracy.
And that, in other words, puts Mr. Chadi in the horrible position of having tocross-examine the witness who actually has told the Crown and accomplicewitness that he believes Mr. Chadi is guilty of a crime. There is no evidencewhatever in support of this, but nevertheless, in my respectful position, Mr.Chadi’s position is utterly intolerable and the Court should move to exclude him.
[65] The Court granted Mr. Chadi’s application to withdraw as counsel in the Koker C matter.The preliminary inquiry was adjourned to September 17, 2010 to give Hoskins an opportunity toconsult with new counsel.
September 26, 2008
[66] Alcantara appeared before Clackson J. for arraignment and the scheduling of a trial datein Koker A. Mr. Chadi appeared for Caines and Knapczyk and advised the Court that he wasmaking an application to be removed as counsel of record:
MR. CHADI: Thank you, My Lord. I was previous counsel -- I’m counsel ofrecord for Mr. Caines and Mr. Knapczyk. That is now changing this morning. I’mapplying to get off the record with respect to both of these individuals. Iconducted the preliminary inquiry. Mr. Hrabcak and I tried at great lengths to havethis matter resolved up to and including yesterday. Unfortunately, the resolution
Page: 20
fell apart. I cannot continue to act, and -- and as I trust my friend is of the sameposition. I have consulted with Mr. Caines. I understand that he’s speaking withMr. Moreau in that respect. Mr. Moreau is familiar with -- and as a result, cancome up to speed relatively quickly. And I understand that Mr. Juneja had beenconsulted by Mr. Knapczyk. So those are my representations before the court.
[67] The Court granted Mr. Chadi’s application to withdraw as counsel and then made thefollowing inquiry of Mr. Juneja, who was present:
THE COURT: ... Mr. Juneja, what kind of shape are you in before we can set atrial date here?
MR. JUNEJA: I’m not prepared to go on the record for Mr. Knapczyk at thispoint. I have spoken to Mr. Knapczyk in detail, and there is an extensive amountof disclosure to still go through. Sir, I’m asking for the court’s indulgence to putthis matter over for a period of one month to be brought up to speed and to havefurther communications with Mr. Knapczyk about my retainer.
[68] The following exchange then took place between the Court and counsel for Alcantara,who was opposed to a further adjournment:
THE COURT: Mr. Rice.
. . .
MR. RICE: I have some submissions to make to the court because the change ofcounsel and withdrawal of counsel at this late date is going to squarely put in issuemy client’s rights to trial within a reasonable time. We are in a position today toschedule this matter. Obviously that cannot be done due to new counsel comingon board...So I’m -- I’m in a position where I’m not agreeing with having itadjourned today, because we are certainly ready to proceed and set dates.
THE COURT: Okay. In a nutshell, then, you may make an application at somepoint in the future based on 11(b) of the Charter is what I hear you saying, andyou don’t want to foreclose that opportunity by agreeing to this adjournment. I’vegot that. It’s on the record.
MR. RICE: Yes. I don’t want anything to be interpreted as any kind of waiver.
THE COURT: I understand. Thank you, Mr. Rice.
[69] The Court granted Mr. Juneja’s application and the arraignment was further adjourned toOctober 24, 2008.
Page: 21
October 24, 2008
[70] Koker A returned before Clackson J. for the fixing of dates for pre-trial motions and trial.Gregory C. Lazin appeared as counsel for Caines. Charles B. Davison appeared as agent forcounsel for Alcantara. Mr. Juneja was not prepared to go on the record as counsel for Knapczykand sought a further adjournment as he had not been retained and had not received the disclosurefrom Mr. Chadi. Mr. Lazin and Mr. Davison then advised the Court as follows:
THE COURT: Okay.
MR. LAZIN: Sir, it was my understanding and expectation that we were going tobe setting pre-trial dates today. I understand that the dates would have beensuitable for Mr. Juneja. We were tentatively looking at setting four months of pre-trial motions commencing November 2, 2009, with potential trial dates startingApril 5th, 2010. We’re certainly not -- my client’s in custody. It’s certainly amatter where we’re not prepared to waive any 11(b) potential rights that he mayhave.
MR. DAVISON: For Mr. Rice, that’s the same in relation to Mr. Alcantara.
[71] The Court agreed to assign tentative dates for the pre-trial motions and the trial. Thepre-trial motions were scheduled for November 2, 2009 to March 5, 2010. The trial wasscheduled for April 6, 2010 to June 30, 2010. The case was then adjourned to November 21,2008, for confirmation of those dates.
November 21, 2008
[72] Koker A returned before Hillier J. for Mr. Juneja to advise whether he was retained byKnapczyk and to confirm the dates for pre-trial motions and trial. Mr. Juneja did not appear as aresult of an oversight and the case was further adjourned to November 28, 2008.
November 28, 2008
[73] Mr. Juneja advised Clackson J. that he had been retained by Knapczyk with respect toKoker A and a designation of counsel had been filed.
[74] Gregory A. Rice appeared again as Crown counsel in the place of Mr. Hrabcak andsought an adjustment of the assigned dates for the pre-trial motions and the trial as a result ofpolice unavailability due to the Winter Olympic Games in Vancouver, B.C.
[75] Mr. Lazin again advised the Court that he was not acquiescing in any additional delaycaused by the unavailability of police witnesses due to the Olympics. The assigned dates were
Page: 22
adjusted by the Court to November 2, 2009 to March 31, 2010 for pre-trial motions and April 20,2010 to June 30, 2010 for trial.
[76] A pre-trial conference was scheduled for January 9, 2009.
November 28, 2008 to January 29, 2009
[77] This time period was taken up with pre-trial conferences in both cases.
January 29, 2009
[78] During a pre-trial conference before Sulyma J., the commencement date for the pre-trialmotions in Koker B was changed to February 9, 2009. However, prior to that date, theco-accused Yakimishyn reached a resolution of all outstanding charges.
February 9, 2009
[79] The trial involving the three remaining accused in Koker B commenced with pre-trialmotions and continued to its conclusion on June 9, 2009, when Sulyma J. reserved judgment.The trial was then adjourned for the Court to render verdicts.
March 2, 2009
[80] Yakimishyn proceeded separately before Hillier J. and pleaded guilty to trafficking incocaine pursuant to s. 5(1) of the CDSA.
March 3, 2009
[81] Alcantara was arrested on breach of recognizance charges.
March 13, 2009
[82] Yakimishyn was sentenced to a term of imprisonment of 10.5 years, less 32 months creditfor pre-trial custody, for a net sentence of seven years and 10 months (R. v. Yakimishyn, 2009ABQB 162, 470 A.R. 140).
March 23, 2009
[83] Alcantara’s bail on Koker A was revoked by Philip P.C.J..
March 25, 2009
[84] On March 25, 2009, Alcantara’s judicial interim release application was denied.
Page: 23
May 29, 2009
[85] Koker A came before Sanderman J. to pick a jury selection date. Mr. Lazin advised theCourt that a trial judge had been assigned and efforts were being made to schedule a pre-trialconference. The case was adjourned to June 19, 2009, in anticipation that the election for modeof trial would be clarified before that date.
June 19, 2009
[86] Koker A returned before Ross J. and was further adjourned to September 11, 2009, ascounsel had not been able to arrange the pre-trial conference with the assigned trial judge. It wasalso expected that resolution of the outstanding issue regarding the election for mode of trialcould wait until that date.
September 10, 2009
[87] Alcantara’s application under ss. 515(10) and 525 of the Criminal Code was denied.
September 11, 2009
[88] Koker A returned before Sanderman J., at which time a pre-trial conference wasscheduled for October 14, 2009 before this Court. The question of whether the case wouldproceed as a judge and jury election was adjourned to December 18, 2009, with the suggestionthat the issue could be addressed before this Court. The Crown also requested that the trial datebe adjusted again and it was moved up to April 6, 2010 from April 20, 2010, with the consent ofthe Defence.
September 14, 2009
[89] Caines, without his counsel of record Gregory C. Lazin, appeared before Gill J. in regardto Koker A and entered guilty pleas to two counts in the Indictment. Mr. Chadi, who already hadwithdrawn from the file due to a conflict, appeared with Caines. The Crown did not object to hisappearance.
September 15, 2009
[90] Koker B was brought forward at the request of Sulyma J. to render Reasons for Judgment(R. v. Alcantara, 2009 ABQB 524, 24 Alta. L.R. (5th) 248). All three accused were convictedand the case was adjourned to September 18, 2009 to schedule a date for the sentence hearing.
September 16, 2009
Page: 24
[91] Caines appeared before Gill J. in regard to Koker A. The Crown tendered exhibits.Mr. Juneja, counsel for Knapczyk, attended as agent for Mr. Chadi.
September 18, 2009
[92] Koker B came before Clackson J. and the period December 2 to 4, 2009 was booked forthe sentence hearing.
[93] In Koker A, Mr. Chadi appeared before Gill J. and asked to withdraw as counsel. Mr.Lazin confirmed that he would act for Mr. Caines.
September 24, October 2 and October 9, 2009
[94] In Koker A, Caines’ new counsel, Mr. Lazin, appeared before Gill J. with respect toissues that had arisen since September 14, 2009.
October 14, 2009
[95] Alcantara and Caines first appeared before this Court in Koker A for the purposes of apre-trial conference. I directed that notices of motion regarding pre-trial applications be filed byOctober 23, 2009, and books of authorities be filed by October 30, 2009. Following a discussionof various scheduling and other logistical matters, the case was adjourned by agreement of allcounsel for the commencement of pre-trial motions on November 9, 2009, at which time it wasadjourned to November 10, 2009.
November 9, 2009
[96] The proceedings in relation to Caines and Koker A resumed before Gill J. The Court wasadvised that issues had arisen with respect to a document that had been tendered to the Court onSeptember 14, 2009, when Mr. Lazin had not been present.
November 10, 2009
[97] Koker A resumed before this Court.
[98] Mr. Lazin advised the Court that Caines had appeared before Gill J. on September 14th
and had entered guilty pleas to two counts in the Indictment. Crown counsel confirmed thatCaines had been severed from the case and the trial of Alcantara and Knapczyk would continue.
[99] The matter in relation to Caines was scheduled to continue before Gill J. on November12, 2009. Caines’ counsel, Mr. Lazin, was excused from further attendance before this Court.
Page: 25
[100] Counsel for Alcantara and Knapczyk advised the Court that in the absence of theirco-accused Caines advancing an application under s. 8 of the Charter, as he had been severedfrom the case, they were abandoning their s. 7 Charter applications. The following exchangetook place when counsel for Alcantara suggested that the trial date be moved up:
MR. RICE: Now, with respect to Mr. Alcantara, My Lady, it’s obvious that wehave a considerable period of time here that has now been freed up. If the courtwas disposed to accelerating the trial date, that is moving it up to an earlier dateother than the one that has been scheduled in April and take advantage of thisavailable time I can certainly be available to do that.
THE COURT: Why wouldn’t we do that? It didn’t occur to me that we might beable to do that but why wouldn’t we do that?
MR. HRABCAK: There is reasons -- this is primarily an RCMP file. It is anRCMP file. The Olympics take place February and Special Olympics in Marchand pretty much the majority of available RCMP officers in Alberta and in BC areconsumed through the security with respect to the Olympics as a result there is anattempt not to schedule RCMP files during that time period.
Further, I have a matter at the end of March that is a file up in Fort McMurray thatI am needing to deal with. So I am hesitant to actually bring the matter forward.
[101] After some initial resistence Crown counsel agreed to look into the availability of policewitnesses for an earlier trial date and it was agreed that the proceedings would be adjourned toNovember 18, 2009 for Crown counsel to report back to the Court. Counsel for Alcantara thenadvised the Court that he had received instructions from Alcantara to offer a plea of guilty toCount #1 in resolution of all charges in the Indictment which triggered the following exchange:
MR. RICE: Count 1 in the Indictment before you is a count alleging a conspiracybetween the dates of July 1 , 2005 and March 31 , 2006 contrary to Sectionst st
465(l)(c) of the Criminal Code, and I can advise you that in respect of that count Ihave received instructions from Mr. Alcantara to offer a plea of guilty to the courtin resolution of all matters contained in this Indictment.
MR. HRABCAK: I’m taken by surprise I must admit. I’m going to need time to --I’m not even certain of my -- what my friend is proposing to be honest.
THE COURT: I’m certain of what he is proposing. He is proposing a guilty pleato Count 1 and all the other counts be vacated by the Crown.
MR. HRABCAK: That’s -- if that is the case that’s something for him to discusswith myself. I mean if he wants to plead guilty, put on the record and then
Page: 26
continue on with the trial on the other counts that’s something that the Court canentertain but if my friend is saying he wishes to plead guilty to Count 1 on thecondition that the Crown withdraw the remaining counts that’s something that heand I can discuss next week.
THE COURT: I’m sure. He wanted to put that on the record, that’s fine with me,so I will leave you to discuss it.
MR. HRABCAK: Thank you.
November 12, 2009
[102] The Koker A proceedings before Gill J. continued with argument as to an agreedstatement of facts without the need to call evidence.
November 16, 2009
[103] In the Koker A proceedings before him, Gill J. dismissed the Defence application towithdraw admissions without evidence, but allowed a Defence application with evidence.
November 18, 2009
[104] The proceedings in Koker A continued before this Court with Crown counsel requestingan adjournment for another week as he needed more time to determine whether witnesses couldbe available to commence the trial on December 7, 2009. Following a discussion aboutscheduling issues and the unavailability of RCMP witnesses due to the Winter Olympics, thecase was adjourned to November 30, 2009 due to the unavailability of the Court. Counsel forAlcantara asked whether Crown counsel had a response to the offer which Alcantara had madeon November 10, 2009 to plead guilty to the conspiracy count on the condition that the remainingcounts be withdrawn. Mr. Hrabcak replied that the Crown would not accept that plea offer at thattime , “...although I am still considering it.” He advised that he would have an answer by thefollowing Tuesday.
November 30, 2009
[105] Koker A resumed before this Court. Crown counsel advised the Court that he could begincalling evidence in the trial on December 10, 2009, with a proposed continuation date of January18, 2010. He then summarized the witness availability issues as follows:
MR. HRABCAK: After that I cannot give any assurance at all that I would havewitnesses in February or March given the Olympics. I will still attempt to do sobased upon the dates that we’ve discussed in court, that being the first two weeksof February, and then I believe all of March is available; however, I’m not
Page: 27
available at the last week of March, so the first three weeks of March I wouldconsider looking to get some witnesses, although I cannot guarantee that. So wemay have an absence of evidence in February and March and then recommence inApril.
[106] Defence counsel agreed that it was preferable to commence the trial on December 10,2009, and the proceedings were then adjourned to the accelerated trial dates of December 10-16,2009 and January 20-29, 2010.
December 2, 2009
[107] The sentence hearing in Koker B concluded before Sulyma J. The matter was adjournedto December 4, 2009 for the Court to render its decision.
December 4, 2009
[108] Sulyma J. sentenced all three accused in Koker B. Alcantara was sentenced to a globalterm of 14 years imprisonment less credit for time served in pre-trial custody of five years andtwo months for a net sentence of eight years and 10 months. All outstanding matters in thatprosecution were then concluded. The remaining chronology of the judicial history deals solelywith the case before this Court in Koker A.
December 10, 2009
[109] The trial in the present matter commenced with Alcantara filing a Notice of Intention toRe-Elect. He was then arraigned, formally re-elected to be tried by judge alone and entered aguilty plea to Count 1 (conspiracy) in the Indictment. Alcantara maintained his pleas of not guiltyto trafficking in cocaine and the criminal organization count. Following the admission of factsestablishing the elements of the offence of conspiracy, the Court accepted Alcantara’s guilty pleaand entered a conviction. Crown counsel advised the Court that he intended to continue with thetrial against both accused and proceeded with an opening address and the calling of evidence.
December 17, 2009
[110] The trial continued until December 17, 2009, when it was adjourned to January 20, 2010for further continuation.
January 13, 2010
[111] On January 13, 2010, Crown counsel advised the Defence about new disclosure regardingimplementation of the live monitoring requirement in certain of the wiretap authorizations (theput away issue).
Page: 28
January 20, 2010
[112] The trial resumed with Defence counsel making an application for an adjournment as aresult of the new disclosure which had been received from the Crown. Counsel for Alcantaraadvised the Court as follows:
MR. RICE: Last week, on January the 13 , or at least by way of a letter datedth
January 13 , 2010, from Mr. Hrabcak, on behalf of the Crown, we were madeth
aware of an issue that the Crown has become aware of regarding theimplementation of the wiretap authorizations in this case. It pertains to the policeinterpretation and practice with respect to the implementation of what we call alive monitoring requirement in the wiretap authorizations, and we have beenadvised that it potentially may affect 71 of the evidentiary intercepted privatecommunications that form the part of the foundation of the prosecution’s case. Wehave been provided to this point with electronic disclosure of session reportsprepared by the RCMP, my understanding, at the request of the Crown. And Ihave only had the opportunity of briefly reviewing the various reports contained inthe electronic disclosure, which, certainly, in total, exceed a couple of thousandpages of material. I understand, in speaking with Mr. Hrabcak, that the Crown hasrequested further material related to this issue, which they’ve not yet received butanticipate receiving, so we are expecting further disclosure on this point.
. . .
Given this development, and given the amount of material that we now have toassess by way of this new information, I expect that we would not be in a positionto proceed further until at least April.
[113] The adjournment application triggered the following exchange between the Court andCrown counsel, who conceded that the Defence would need some time to review its position:
THE COURT: But what about pertaining to the guilty plea on the first count? Imean, isn’t it conceivable that some of this -- these issues around certainintercepts might be related to --
MR. HRABCAK: Yeah. Well, certain --
THE COURT: -- the guilty plea that’s been entered, and so consequently, it seemsto me that Mr. Rice might want to review his position with respect to everythingat this point.
Page: 29
MR. HRABCAK: Oh, and I don’t--I don’t take exception with that. Yes, I’dexpect that Mr. Rice would be starting, back from the start to determine whetheror not any of the steps that were taken he wishes to step back from.
THE COURT: Right.
MR. HRABCAK: That’s a determination that he will have to make, and he willneed time to make that. I’m not suggesting that this is something that can bedetermined overnight, and I’m not taking any exception that Mr. Rice needs sometime to deal with that.
[114] The Defence agreed to proceed with the evidence of one additional Crown witnesswithout prejudice to any application which might be made arising out of the new disclosure. Thetrial was then adjourned to January 25, 2010, on which date it was further adjourned to April 6,2010.
[115] Immediately after the application for an adjournment was granted, Crown counsel andcounsel for Caines attended before Gill J. to adjourn Caines’ matter in Koker A.
February 16, 2010
[116] Proceedings in Koker A in front of Gill J. were adjourned so that Caines could evaluatethe consequences to him of the late disclosure.
April 6, 2010
[117] The proceedings resumed before this Court with Mr. Lazin advising that Caines would bebringing an application to vacate his guilty plea before Gill J. and then would be bringing anapplication for joinder before this Court.
April 7, 2010
[118] Gill J. declared a mistrial in the Koker A proceedings before him and struck Caines’guilty pleas.
April 12, 2010
[119] The Crown consented to the joinder of Caines in the present proceedings and the casereverted to the previous style of cause as R. v. Caines, Alcantara and Knapczyk.
[120] Also on that date, Alcantara filed a Charter application to vacate his guilty plea to Count1 (conspiracy) pursuant to ss. 7, 11(d) and 24(1) of the Charter (Motion #2); an application for ajudicial stay of proceedings under ss. 7, 11(b), 11(d) and 24(1) of the Charter based on delay
Page: 30
(Motion #3) and an application for the exclusion of evidence pursuant to ss. 7, 8, 11(d) and 24(1)and (2) of the Charter based on unlawful search and seizure (Motion #5). A Garofoli application(Motion #4) was filed October 8, 2010.
[121] Caines had requested further disclosure from the Crown at some point after March 10,2010, which had not been received by this date. Counsel for Caines sought a two weekadjournment pending receipt of the further disclosure. An adjournment to April 20, 2010 wasgranted.
April 20, 2010
[122] The Defence proposed a schedule whereby its disclosure motions would begin on June 1,2010 and continue for seven to ten days. Over the summer, they would await the disclosure andfurther prepare.
May 18, 2010
[123] Alcantara and Caines filed a joint notice of motion seeking an order for productionpursuant to ss. 7 and 24(1) of the Charter (Motion #1).
May 28, 2010
[124] Caines filed a Charter application alleging breaches of ss. 7, 8, 11(a) and 11(b), andseeking a judicial stay of proceedings under s. 24(1) (Motion #3).
June 1, 2010-June 14, 2010
[125] The disclosure motion proceeded on various dates from June 1, 2010 to June 14, 2010, atthe conclusion of which the Court set deadlines for the Crown to comply with the orders granted.The deadline for disclosure of the final outstanding information was set for August 19, 2010.
June 24, 2010 and June 28, 2010
[126] The case continued with two case management conferences, at the conclusion of whichthe Court fixed a “Revised Proposed Pre-Trial Motions and Trial Schedule.” The pre-trialmotions were booked to commence on September 1, 2010 and conclude on March 31, 2011, withthe trial proceeding April 11, 2011 to June 16, 2011.
August 20, 2010
[127] The disclosure motion resumed, at which time Crown counsel provided an updateregarding the status of the Crown’s compliance with the order for production. The Defenceindicated it would need time to review the disclosure provided. The proceedings then adjourned
Page: 31
to September 1, 2010, which was the date scheduled for the commencement of the application tovacate Alcantara’s guilty plea.
September 1, 2010
[128] Pre-trial motions commenced.
September 24, 2010
[129] Knapczyk filed a Charter application alleging a breach of s. 11(b) and seeking a judicialstay of proceedings under s. 24(1) (Motion #3).
[130] Alcantara was allowed to vacate his guilty plea to Count 1 in the Indictment (R. v.Alcantara, 2010 ABQB 616). Also, on that date, the Court confirmed that Mr. Juneja couldcontinue in his representation of Mr. Knapczyk for the duration of the delay motion (R. v.Caines, 2010 ABQB 612).
October 8, 2010
[131] The Court issued a decision (R. v. Caines, 2010 ABQB 646) pertaining to a voir direhearing as to the relevance and admissibility of session history reports relating to wiretapinterceptions in a separate prosecution.
September-December 16, 2010
[132] The delay motion proceeded.
III. The Issue
[133] The issue is whether the delay in the prosecution and trial of the charges against Caines,Alcantara and Knapczyk is unreasonable and contrary to s. 11(b) of the Charter.
IV. The Law
A. Charter Provisions
[134] The Charter provides that:
7. Everyone has the right to life, liberty and security of the person and the rightnot to be deprived thereof except in accordance with the principles of fundamentaljustice.
Page: 32
. . .
11. Any person charged with an offence has the right
. . .
(b) to be tried within a reasonable time;
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have beeninfringed or denied may apply to a court of competent jurisdiction to obtain suchremedy as the court considers appropriate and just in the circumstances.
B. Section 11(b) Discussion
[135] In R. v. Morin, [1992] 1 S.C.R. 771 at paras. 26-31, Sopinka J. set out the purposes ofs. 11(b) of the Charter and the approach to be used in a s. 11(b) analysis:
The primary purpose of s. 11(b) is the protection of the individual rights ofaccused. A secondary interest of society as a whole has, however, been recognizedby this Court. I will address each of these interests and their interaction.
The individual rights which the section seeks to protect are: (1) the right tosecurity of the person, (2) the right to liberty, and (3) the right to a fair trial.
The right to security of the person is protected in s. 11(b) by seeking to minimizethe anxiety, concern and stigma of exposure to criminal proceedings. The right toliberty is protected by seeking to minimize exposure to the restrictions on libertywhich result from pre-trial incarceration and restrictive bail conditions. The rightto a fair trial is protected by attempting to ensure that proceedings take place whileevidence is available and fresh.
The secondary societal interest is most obvious when it parallels that of theaccused. Society as a whole has an interest in seeing that the least fortunate of itscitizens who are accused of crimes are treated humanely and fairly. In this respecttrials held promptly enjoy the confidence of the public. As observed by MartinJ.A. in R. v. Beason (1983), 36 C.R. (3d) 73 (Ont. C.A.): "Trials held within areasonable time have an intrinsic value. The constitutional guarantee enures to thebenefit of society as a whole and, indeed, to the ultimate benefit of the accused..."(p. 96). In some cases, however, the accused has no interest in an early trial andsociety's interest will not parallel that of the accused.
There is, as well, a societal interest that is by its very nature adverse to theinterests of the accused. In Conway, a majority of this Court recognized that the
Page: 33
interests of the accused must be balanced by the interests of society in lawenforcement. This theme was picked up in Askov in the reasons of Cory J. whoreferred to "a collective interest in ensuring that those who transgress the law arebrought to trial and dealt with according to the law" (pp. 1219-20). As theseriousness of the offence increases so does the societal demand that the accusedbe brought to trial. The role of this interest is most evident and its influence mostapparent when it is sought to absolve persons accused of serious crimes simply toclean up the docket.
The general approach to a determination as to whether the right has been denied isnot by the application of a mathematical or administrative formula but rather by ajudicial determination balancing the interests which the section is designed toprotect against factors which either inevitably lead to delay or are otherwise thecause of delay. As I noted in Smith, supra, "[i]t is axiomatic that some delay isinevitable. The question is, at what point does the delay become unreasonable?"(p. 1131). While the Court has at times indicated otherwise, it is now acceptedthat the factors to be considered in analyzing how long is too long may be listed asfollows:
1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including
(a) inherent time requirements of the case,
(b) actions of the accused,
(c) actions of the Crown,
(d) limits on institutional resources, and [page788]
(e) other reasons for delay; and
4. prejudice to the accused.
These factors are substantially the same as those discussed by this Court in Smith,supra, at p. 1131, and in Askov, supra, at pp. 1231-32.
[136] Cromwell J. in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 commented at para. 18 thatapplying the factors set out in Morin inevitably leads to a detailed examination of particular time
Page: 34
periods and the reasons why certain delays occurred, but cautioned that in undertaking this typeof analysis, the court should not lose sight of the forest for the trees.
[137] In R. v. Smith, [1989] 2 S.C.R. 1120 at para. 28, Sopinka J. confirmed that it is theaccused who has the ultimate or legal burden of proof on a s. 11(b) Charter application, althougha secondary or evidentiary burden may shift to the Crown, depending on the circumstances of thecase. For example, a long period of delay due to an adjournment requested by the Crownordinarily will call for an explanation from the Crown as to why the adjournment was needed. Ifno satisfactory explanation is given, the Court can infer the delay was unjustified. Sopinka J.emphasized, however, that it is preferable not to decide a s. 11(b) application on the basis of theburden of proof but rather to evaluate the reasonableness of the overall delay having regard to theMorin factors.
[138] Sopinka J. advised in Morin at para. 36 that an inquiry into unreasonable delay should beundertaken only if the period of time in question is of sufficient length to raise the issue ofreasonableness. If the applicant is in custody, a shorter period of delay will raise the issue.
1. Length of the delay
[139] The time period to be examined is from the date of the charge to the end of trial:Argentina v. Mellino, [1987] 1 S.C.R. 536 at 548; R. v. Rahey, [1987] 1 S.C.R. 588 at 633; R. v.Kalanj, [1989] 1 S.C.R. 1594 at para. 16; Morin at para. 32. Sopinka J. clarified in Morin atpara. 35 that “charge” means “the date on which an information is sworn or an indictment ispreferred.” He also stated (at para. 35) that:
Pre-charge delay may in certain circumstances have an influence on the overalldetermination as to whether post-charge delay is unreasonable but of itself it is notcounted in determining the length of the delay.
2. Waiver of time periods
[140] The operative period of delay may be shortened by subtracting periods of delay that havebeen waived. In Morin at para. 38, Sopinka J. set out the test for waiver as follows:
This Court has clearly stated that in order for an accused to waive his or her rightsunder s. 11(b), such waiver must be clear and unequivocal, with full knowledge ofthe rights the procedure was enacted to protect and of the effect that waiver willhave on those rights... Waiver can be explicit or implicit. If the waiver is said tobe implicit, the conduct of the accused must comply with the stringent test forwaiver set out above. As Cory J. described it in Askov, supra, at p. 1228:
... there must be something in the conduct of the accused that is sufficientto give rise to an inference that the accused has understood that he or she
Page: 35
had a s. 11(b) guarantee, understood its nature and has waived the rightprovided by that guarantee.
Waiver requires advertence to the act of release rather than mere inadvertence. Ifthe mind of the accused or his or her counsel is not turned to the issue of waiverand is not aware of what his or her conduct signifies, then this conduct does notconstitute waiver. Such conduct may be taken into account under the factor"actions of the accused" but it is not waiver. As I stated in Smith, supra, whichwas adopted in Askov, supra, consent to a trial date can give rise to an inferenceof waiver. This will not be so if consent to a date amounts to mere acquiescence inthe inevitable.
[141] In R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, Cromwell J. stated at para. 23:“[s]cheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b)purposes, require defence counsel to hold themselves in a state of perpetual availability.”
[142] In R. v. Koruz (1992), 125 A.R. 161, 72 C.C.C. (3d) 353 (C.A.), aff’d [1993] 1 S.C.R.1134, a case decided after Askov but without the benefit of the reasons in Morin, the AlbertaCourt of Appeal held that the approximately eleven-month delay in that case from arraignment tothe first scheduled six week trial date was not an unjustifiable systemic delay, but in any eventthe time period had been waived by the defence. Fraser J.A. (as she then was), for the majority,made the following comments about waiver at para. 55:
The record is clear that Crown counsel discussed the issue of trial dates with thedefence counsel for each defendant and agreed on a date before representationswere made to the court. (It cannot be argued that defence counsel were unaware oftheir clients' rights under s. 11(b). On the first occasion the preliminary inquirywas adjourned, the matter of s. 11(b) was expressly addressed by two of the threecounsel. The third was present during the exchange.) At arraignment, Crowncounsel advised the court that "I have discussed with counsel prospective dates forhearing of this matter and it appears that the most convenient time that can beoffered is September of 1990." None of the defence counsel objected to thisrepresentation. I take this to mean, given the reference to "convenient" that thedates were indeed acceptable to all counsel. This being so, I regard the agreementby defence counsel to the September trial date as tantamount to waiver, fallingsquarely within the comments made by Sopinka J. in Smith, supra, at 1136:
Agreement by an accused to a future date will in most circumstances giverise to an inference that the accused waives his right to subsequently allegethat an unreasonable delay has occurred. While silence cannot constitutewaiver, agreeing to a future date for a trial or a preliminary inquiry wouldgenerally be characterized as more than silence.
[Emphasis in the original.]
Page: 36
3. Reasons for the delay
(a) Inherent time requirements of the case
[143] Sopinka J. in Morin at para. 40 recognized that some delay is to be expected in criminalcases. It takes time for a charge to be processed, for an accused to retain counsel and forapplications for bail to be heard and other pre-trial procedures to be completed. Counsel musthave time to prepare for trial and the trial itself takes time. All of these are inherent timerequirements of the case.
[144] As explained by Sulyma J. in R. v. Chan, 2003 ABQB 759, 342 A.R. 201 at para. 14,relying on Morin:
Inherent time requirements will vary depending on the complexity of the case.Counsel for the prosecution and defence counsel are not expected to devotethemselves exclusively to one case. Intake requirements, including retention ofcounsel, bail hearings, police and administrative paperwork, and disclosure andtranscription of intercepted communications also result in inherent delays.Sopinka J. in Morin at para. 42 noted that as the number and complexity of theseactivities increase, so does the amount of delay which is reasonable.
[145] The inherent time requirements of a matter in relation to disclosure encompasses theCrown’s preparation of disclosure (Morin at para. 42), the parties’ negotiation of the method ofdisclosure delivery (R. v. Siemens (2000), 260 A.R. 57 at paras 111-113 (Q.B.)), the accused’s review of that disclosure (Morin at para. 42) and fine-tuning by the Defence of anyrequests for additional disclosure (Siemens at para. 110).
[146] Of course, a longer inherent time period also is to be expected when a case proceedsthrough the two-stage process involving a preliminary inquiry. As stated by Sopinka J. in Morinat para. 43:
Clearly a longer time must be allowed for cases that must proceed through a"two-stage" trial process than for cases which do not require a preliminaryhearing. Equally, a two-stage process will involve additional inherent delays suchas further pre-trial meetings and added court dates. An additional period forinherent time requirements must be allowed for this second stage. This period willbe shorter than in the case of the one-stage trial process because many of theintake procedures will not have to be duplicated.
[147] In addition, the conduct of the trial itself, including argument, adjudication andsentencing is considered part of the inherent time requirement (Morin at para. 43).
Page: 37
[148] The inherent time requirement does not count against either the Crown or the Defence inassessing unreasonable delay. It simply is deducted from the operative period of delay (R. v.MacDougall, [1998] 3 S.C.R. 45 at para. 44).
[149] Sulyma J. in Chan at para. 464, a case which she described as being in the category ofmost complex of cases, concluded that 18 months was the inherent time required to effectdisclosure and complete other intake requirements such as retaining counsel, for bail hearings tobe conducted, for police and administrative paperwork to be completed, for the accused to reviewdisclosure, for the parties to litigate necessary pre-trial motions and for the completion ofadditional investigative steps.
[150] In R. v. Bains, 2010 BCCA 178, 254 C.C.C. (3d) 170, the appellant was charged withconspiracy to traffic in cocaine. On a s. 11(b) application, the trial judge held that the inherenttime required was 27 months, given the complexity of the charge and multitude of accused. Theappellant did not take issue with that finding on appeal.
[151] In R. v. Bogiatzis, 2002 CarswellOnt 6122 (S.C.J.), a drug conspiracy and criminalorganization case, the trial judge noted that the 10 2/3 months taken by the Crown to providedisclosure was justified and part of the inherent time requirements of the case.
[152] Disclosure took approximately 9 1/3 months in R. v. Adams, 2006 BCSC 350, a caseinvolving multiple accused charged with two counts of conspiracy. Romilly J. commented atpara. 107 that: “Not surprisingly, prosecutions involving wiretaps, as in the case at bar, presentcomplex and at times formidable disclosure endeavours.” The intake period in the ProvincialCourt was held to be 11 months for all but two of the accused. Romilly J. concluded at para. 150that a period of twelve months for the combined intake requirements at the Provincial andSupreme Court levels was justified and reasonable and should be considered as part of theinherent time requirements of the case. The 11 weeks of preliminary inquiry were held to be partof the inherent time period, as were three and a half weeks reserved for pre-trial hearings, oneand one-half months allotted for the preparation of judgments on the issues raised on the variousvoir dires and the almost three months reserved for the jury trial in this matter.
[153] In R. v. Blake, 2010 MBQB 115, 253 Man.R. (2d) 121, the applicant was charged withconspiracy to import ephedrine. Over 85,000 private communications were intercepted in thecourse of the cross-border investigation. Martin J. concluded that the 14 months from arrest tosubstantial completion of disclosure was part of the inherent time requirements of the case.
[154] Finally, in R. v. Ebrekdjian, 2010 ONSC 3097, the applicants were charged with twocounts of conspiracy to traffic in cocaine and two criminal organizations counts. Power J.concluded that the inherent time required for the case was somewhere between about nine and 12months.
(b) Actions of the Applicants
Page: 38
[155] In Morin, Sopinka J. explained at para. 44 that what is of concern in terms of this factorare the actions (or inactions) of an accused which are voluntarily taken and have caused delay.
[156] These actions may include a change of counsel, challenging admissibility of seizedevidence, challenging the validity of a wiretap authorization and adjournments not amounting towaiver (Morin at paras. 44-45).
(c) Actions of the Crown
[157] As stated by the majority in Morin at para. 46: “[t]his factor simply serves as a meanswhereby actions of the Crown which delay the trial may be investigated. Such actions includeadjournments requested by the Crown, failure or delay in disclosure, change of venue motions,etc.” If no satisfactory explanation as to the need for the adjournment or other delay is given, theCourt is entitled to infer it was unjustified (R. v. Smith, [1989] 2 S.C.R. 1120 at 1132-33).
(d) Limits on institutional resources
[158] The Supreme Court of Canada suggested in R. v. Askov, [1990] 2 S.C.R. 1199 that a sixto eight month period of institutional delay between committal and trial might be at the outsidelimit of what is reasonable. However, in Morin, the court emphasized (at para. 48) that this wassimply an administrative guideline and not a limitation period, and that any such guideline wouldrequire adjustment by trial courts to take into account local conditions and to reflect changingcircumstances.
[159] In Morin at para. 47, Sopinka J. commented that:
Institutional delay is the most common source of delay and the most difficult toreconcile with the dictates of s. 11(b) of the Charter. It was the major source ofthe delay in Askov. As I have stated, this is the period that starts to run when theparties are ready for trial but the system cannot accommodate them.
[160] Sopinka J. suggested the following as a guideline for acceptable institutional delay(Morin at para. 55):
In Askov, Cory J., after reviewing comparative statistics suggested that a period inthe range of 6 to 8 months between committal and trial would not beunreasonable. Based on the foregoing, it is appropriate for this Court to suggest aperiod of institutional delay of between 8 to 10 months as a guide to ProvincialCourts. With respect to institutional delay after committal for trial, I would notdepart from the range of 6 to 8 months that was suggested in Askov. In such acase this institutional delay would be in addition to the delay prior to committal.This reflects the fact that after committal the system must cope with a different
Page: 39
court with its special resource problems. It is therefore essential to take intoaccount the inevitability of this additional institutional delay.
[161] He also stated at para. 53:
The application of a guideline will also be influenced by the presence or absenceof prejudice. If an accused is in custody or, while not in custody, subject torestrictive bail terms or conditions or otherwise experiences substantial prejudice,the period of acceptable institutional delay may be shortened to reflect the court'sconcern. On the other hand, in a case in which there is no prejudice or prejudice isslight, the guideline may be applied to reflect this fact.
(e) Other reasons for delay
[162] Sopinka J. in Morin at para. 59 grouped under this category reasons for delay not fallingwithin the other factors, such as actions of the judges.
4. Prejudice to the Accused
[163] This factor relates to prejudice to the accused suffered as a result of the unreasonabledelay, not the criminal proceedings themselves. As stated by L’Heureux-Dubé J. for the majorityin R. v. Conway, [1989] 1 S.C.R. 1659 at para. 19:
... the main purpose for the right to be tried within a reasonable time under s.11(b) of the Charter, namely, to minimize the adverse effect on the personcharged resulting from the pending disposition of an unresolved criminal charge.The focus of the protection is "the impairment or prejudice arising from the delayin processing or disposing of the charges against an accused and not theimpairment or prejudice arising from the fact that he has been charged" (Rahey,supra, at p. 624, per Wilson J.). The right recognizes that, with the passage oftime, subjection to a criminal trial gives rise to restrictions on liberty,inconveniences and pressures detrimental to the mental and physical health of theindividual.
[164] Sopinka J. in Morin at para. 61 confirmed that prejudice may be inferred from prolongeddelay and such an inference is more likely to be drawn the longer the delay.
[165] Prejudice to the liberty and security interests of an accused also may be proved byevidence. In Morin, Sopinka J. stated at para. 63 that:
[T]he accused may rely on evidence tending to show prejudice to his or her libertyinterest as a result of pre-trial incarceration or restrictive bail conditions. Prejudiceto the accused’s security interest can be shown by evidence of the ongoing stress
Page: 40
or damage to reputation as a result of overlong exposure to the “vexations andvicissitudes of a pending criminal accusation,” to use the words adopted by LamerJ. in Mills, supra, at p. 538. The fact that the accused sought an early trial datewill also be relevant. Evidence may also be adduced to show that delay hasprejudiced the accused’s ability to make full answer and defence.
[166] In Godin at paras. 30-31 and 38, Cromwell J. stressed that proof of actual prejudice to theright to make full answer and defence is not required as this is just one of three varieties ofprejudice, all of which must be considered together with the length of the delay and anyexplanations for that delay. The other two varieties are prejudice to an accused’s liberty interestin terms of pre-trial custody or bail conditions and security of the person, “in the sense of beingfree from the stress and cloud of suspicion that accompanies a criminal charge.”
[167] While prejudice to the accused may be inferred, an assertion or inference of prejudicemay be rebutted by the Crown, which may establish by evidence that the delay benefited ratherthan prejudiced the accused. As noted by Sopinka J. in Morin at para. 64, conduct of the accusedwhich falls short of waiver may be relied on to negative prejudice.
5. Balancing
[168] In Morin at para. 32, Sopinka J. explained that:
The judicial process referred to as "balancing" requires an examination of thelength of the delay and its evaluation in light of the other factors... It must then bedetermined whether this period is unreasonable having regard to the interests s.11(b) seeks to protect, the explanation for the delay and the prejudice to theaccused.
V. Analysis
A. Length of the Delay
[169] Alcantara, Knapczyk and Caines all were charged on November 24, 2006. The trialpresently is scheduled to recommence on April 11, 2011 and to conclude on June 16, 2011.Accordingly, the operative time period is about four years and 6.5 months.
[170] The Applicants argue that this period of delay warrants judicial inquiry under s. 24(1) ofthe Charter. The Crown agrees, as do I, that the time period between the date when theApplicants were charged and the projected end of trial is sufficiently long so as to raise the issueof reasonableness.
B. Waiver
Page: 41
[171] The Crown did not allege that the Applicants had waived any of the relevant time periodin this case.
C. Reasons for the Delay
[172] Alcantara argues that the over-arching reasons for delay are the priority given to Koker Band the late disclosure of the put away issue. He argues that the delay caused by the Crown in itspriorizing Koker B was 18 months: (a) the delay between the end of the inherent time period andthe commencement of the Preliminary in Koker A (6 months) and (b) the conduct of the trial (12months). He buttresses his argument with the contention that another alternative open to theCrown would have been to combine the prosecutions of Koker A and B. The delay caused bylater disclosure which caused the adjournment of the trial was eight months, for a total period ofdelay attributable to the Crown of 26 months without factoring in prospective delay. Alcantarasubmits on behalf of all the Accused that the disclosure should have started as of February 13,2006, when the wiretap authorizations ended, not June of 2007.
[173] Alcantara contends that added to the above delay was the further delay of one and onehalf to two and one half months because of the potential conflict of Mr. Chadi representing twoCrown witnesses and multiple alleged co-conspirators.
[174] Caines takes the position that the delay in this case has been occasioned by factors thatare not attributable to the Defence. He suggests that there are four main causes of Crown delay,including: (1) the decision of the Crown to proceed with the Koker B trial first; (2) the Crown’sfailure to bring an early application to disqualify Mr. Chadi; (3) late disclosure of the use of theput-away feature; and (4) Crown delay in complying with further disclosure requests by theDefence arising from the put-away issue, which resulted in the disclosure motion and order forproduction granted by the Court.
[175] Caines attributes a delay of 16 ½ months to the Crown as a result of the priority it gave tothe Koker B prosecution, consisting of: (a) the delay between the end of the inherent period andcommencement of the preliminary inquiry (3 months); (b) the time taken by the conduct of theKoker B preliminary inquiry (1 ½ months); and (3) the conduct of the Koker B trial (12 months).He argues that the time attributable to the Crown for not bringing a timely application to removeMr. Chadi is two months and submits that the Crown delay from late disclosure is eight months,amounting to a total Crown delay of 26 ½ months.
[176] Knapczyk generally adopts the arguments advanced by Alcantara. He says the delayattributable to the Crown includes the delay resulting from the priority which it gave to Koker B,the late disclosure of use of the put away feature and the conflict involving Mr. Chadi.
[177] The Crown takes the position that the inherent time requirements of the case in relation toAlcantara include the following periods:
Page: 42
November 26, 2006 to November 13, 2007 (intake period)-352 days
April 7, 2008 to July 14, 2008 (preliminary inquiry)-98 days
July 14, 2008 to August 29, 2008 (transfer to this Court)-46 days
November 2, 2009 to January 20, 2010 (trial proper)-79 days
April 11, 2011 to June 16, 2011 (projected trial proper)-66 days
[178] The Crown argues the period November 13, 2007 to February 25, 2008 (104 days) is aperiod of delay attributable to the actions of Alcantara or is reasonable institutional delay.
[179] The Crown says the following periods of delay should be attributed to Alcantara asagainst him and to “other reasons for delay” in terms of Knapczyk and Caines:
February 25, 2008 to April 7, 2008 (Alcantara unavailable due to Koker Bpreliminary inquiry)-41 days
August 29, 2008 to June 9, 2009 (Alcantara unavailable for trial because of KokerB trial)-284 days
[180] The Crown submits that the following periods of delay should be attributed to all threeApplicants:
June 9, 2009 to November 2, 2009 (Alcantara unavailable due to conflict inDefence counsel’s schedule)-146 days
September 10, 2010 to April 11, 2011 (pre-trial motions)-213 days
[181] The Crown acknowledges that the period January 20, 2010 to September 10, 2010 (227days) can be attributed to it.
Stage 1: November 24, 2006 (charge) to October 31, 2007 (end ofintake period)
(a) Arguments of the parties
[182] The Applicants concede that this case falls into the complex category due to the numberof accused and charges. They acknowledge that the time required for the Crown to makedisclosure and for Defence counsel to brief the material would be inherently longer than in lesscomplex cases. Also, they agree that other intake requirements such as retaining counsel and
Page: 43
completion of show cause hearings might take longer in cases of multiple accused, although thatwas not the situation here.
[183] Alcantara submits that, considering the complexity of the case and the volume ofdisclosure, the initial inherent time requirements for the present case was 10 months fromNovember 26, 2006 to September 28, 2007. During this period, he retained counsel, a showcause hearing was conducted in the Provincial Court and bail review applications subsequentlywere heard in the Court of Queen’s Bench. As well, the majority of disclosure was made duringthis ten month period.
[184] Alcantara contends that he moved expeditiously with the setting of dates for thepreliminary inquiries. On May 4, 2007, the preliminary inquiry in Koker B was scheduled forFebruary 25, 2008 to April 4, 2008, while the preliminary inquiry in Koker A was scheduled forApril 7, 2008 to May 22, 2008.
[185] Caines submits that 18 months, the intake period found by Sulyma J. in R. v. Chan, 2003ABQB 759 at para. 464, 342 A.R. 20, represents the outer limits of the inherent timerequirements for this case as it also embraced the period of pre-trial motions in Chan. Hecontends, however, that in contrast to the situation in Chan, the method of delivering disclosurewas more efficient in the present proceedings (the hard drive having been delivered to theDefence on June 1, 2007 and August 27, 2007), there are fewer accused and counsel involved,and counsel for the Defence were prepared to set dates early and they worked co-operatively.Caines submits that Blake was a far more complex case and the inherent time there was found tobe 14 months. Based on Chan, Blake, Bains, Adam and Ebrekdjian, Caines agrees withAlcantara’s submission that the inherent time for disclosure and to prosecute a case such as thepresent one is ten months.
[186] The Crown asserts that the almost one year period from November 26, 2006 to November13, 2007, when Mr. Rice went on the record as counsel for Alcantara in Koker A, should beincluded in the inherent time requirements of the case and treated as neutral delay. During thattime frame, the Crown organized and provided disclosure, judicial interim release applicationswere addressed, preliminary hearing dates were reserved, and Alcantara retained new counsel(his original counsel having been Mr. Moustarah).
[187] The Crown acknowledges that this is a lengthy intake period, but notes that thisprosecution is complex and involves conspiracy and organized crime charges, a large amount ofevidence, a significant number of witnesses and complicated pre-trial motions.
(b) Decision on Stage 1
[188] In my view, the initial intake period ran from November 24, 2006, the date when theApplicants were charged, through to the end of October 2007. During that period, Caines andKnapczyk retained counsel, Alcantara retained his initial counsel, a show cause hearing was held
Page: 44
and dates were obtained for the preliminary inquiry. The hard drive containing the majority ofdisclosure was delivered to the Defence on June 1, 2007 and August 27, 2007.
[189] The time required for review of disclosure by the Defence is considered part of theinherent time requirements of the case. It is apparent from the Crown’s remarks before CaffaroP.C.J. on May 1, 2007 that it was hoping to run the preliminary inquiry in Koker B in lateSeptember and October of that year, with the Koker A preliminary inquiry to be heldimmediately afterwards. As the same disclosure applied for both cases, I infer from the Crown’sremarks that it believed the Defence could review the disclosure and both the Crown and theDefence could prepare for at least one of the preliminary inquiries by late September 2007. Thatmight have been the case if full disclosure had been made by early May. However, given that thehard drive with much of the disclosure was not delivered to counsel for Caines and Knapczykuntil June 1, 2007, the Crown may have been somewhat optimistic in its estimate. The Defencedoes not dispute that the initial intake period was ten months. I am of the view, however, that itextended to the end of October 2007, allowing for a reasonable time for Defence review of thedisclosure.
Stage 2: November 1, 2007 to April 6, 2008 (day before start of KokerA preliminary inquiry)
(a) Events
[190] On May 4, 2007, the preliminary inquiry in Koker B was scheduled for February 25, 2008to April 4, 2008, with a conference set for November 1, 2007, while the inquiry in Koker A wasscheduled for April 7, 2008 to May 22, 2008, with the conference set for December 4, 2007.
[191] Clayton Rice did not go on the record as counsel for Alcantara until November 13, 2007,although obviously he had been retained at an earlier date as he received disclosure from theCrown on August 27, 2007 and became counsel of record for Alcantara in Koker B on September27, 2007.
(b) Arguments of the parties
[192] The Applicants maintain that part of the delay from the end of what they contend was theinherent time period on September 28, 2007 to the start of the Koker A preliminary inquiry onApril 7, 2008 was the Crown’s decision to proceed with the Koker B prosecution first.
[193] The Applicants cite Askov, R. v. Pusic (1996) 30 O.R. (3d) 692 at para. 56 (Gen. Div.)and R. v. Lee, 2010 ONCJ 163 at para. 24 as establishing that where the prosecution givespreference to another case in the system, the consequences of that prioritization may be assessedagainst the Crown.
Page: 45
[194] Alcantara recognizes that as he was an accused in both cases, they could not proceed atthe same time. However, he submits that the time between February 25, 2008 and April 6, 2008was a period when the Koker A matter lay dormant.
[195] Alcantara relies on R. v. W.B. (2000), 145 C.C.C. (3d) 498 at paras. 74-77 (Ont. C.A.).The appellant in that case had been charged under an indictment with offences involving twocomplainants. He was successful in having the charges relating to the different complainantssevered. The Court of Appeal concluded that the Crown’s initial decision to join the two sets ofcharges was not unreasonable, nor was its subsequent decision to proceed to trial first on themore serious set of charges. However, it also held that the Crown’s later failure to take steps togive the second case some priority over others in the system could be considered in the balancingexercise.
[196] Further, Alcantara argues that the Crown could have combined Koker A and B in oneprosecution as he faced charges in both, and Beau Yakimyshyn, one of the accused in Koker B, isan unindicted co-conspirator in Koker A. Alcantara submits that if the Crown had exercised itsdiscretion in that manner, there would have been seven accused, so the manageability criteria inR. v. Pangman, 2000 MBQB 71, 149 Man.R. (2d) 68, would still have been met.
[197] In Pangman, the Court raised severance of it own motion because of the number ofaccused and complexity of the charges. While acknowledging that there is no science to thedecision on the maximum number of accused against whom a trial reasonably can proceed,Krindle J. concluded at para. 30 that a trial of seven or eight accused, while difficult, should bemanageable for the jury. He commented that the interests of justice would require severance foranything beyond that number.
[198] The Applicants also argue that there is nothing in the record to indicate whycommencement of the preliminary inquiry in this case was delayed for 11 months from May 4,2007, when they pleaded not guilty and elected trial by judge alone, to April 7, 2008, aside fromCrown priorities and limits on institutional resources. They suggest it can be inferred that part ofthe delay was to find a three month block of time during which to hold the preliminary inquiriesback to back, which was the Crown’s objective.
[199] Alcantara and Knapczyk take the position that the approximately six months fromNovember 29, 2007 to the start of the preliminary inquiry in this matter is attributable to theCrown and limits on institutional resources.
[200] Caines submits that the Crown arbitrarily chose to proceed with the prosecution in KokerB first and that from May 1, 2007, when he was in a position to set a preliminary inquiry date,until April 7, 2008, he was at the mercy of the Koker B file. He too points out that Koker B wasdormant from February 25, 2008 to April 4, 2008. He claims that a period of about three monthsfrom the end of the inherent time period is attributable to the Crown’s priorities and limits oninstitutional resources.
Page: 46
[201] The Crown says that even if the Court agrees with the Applicants that the initial inherentperiod ended on September 27, 2007, it was prepared to proceed with the preliminary inquiry asat that date. It says this can be inferred by its request to the Provincial Court in early May 2007for dates in September and October 2007 in regard to the Koker B preliminary inquiry, with theKoker A preliminary inquiry to follow immediately afterwards.
[202] The Crown points out that Mr. Rice went on the record for Alcantara in Koker B onSeptember 27, 2007, suggesting Alcantara would have counsel in Koker A shortly. It says thedelay between September 27, 2007 and November 13, 2007 was caused by Alcantara and shouldbe considered, as against Knapczyk and Caines, as a neutral period of delay due to “otherreasons.” The Crown argues it cannot be held responsible for that delay. It was Alcantara’sresponsibility to retain counsel. There is no suggestion the Crown delayed or interfered with hisattempt to retain new counsel.
[203] The Crown takes the position that the time period between November 13, 2007, which itcontends was the end of the initial inherent time period, to February 25, 2008, the start of theKoker B preliminary inquiry, should be attributed to actions of Alcantara, reasonable limitationsof institutional resources or a combination of both.
[204] The Crown submits it can be inferred that Mr. Rice would have required a portion of thetime between November 13, 2007 and February 25, 2008 to prepare for the preliminary inquiry.If that is the case, that time is properly attributable to Alcantara’s late retention of counsel asagainst him. Otherwise, the time is attributable to limits on institutional resources and, as it isunder the eight to ten month guideline found to be an acceptable period of delay at the provincialcourt level, this time should be classified as neutral delay.
[205] The Crown again submits with respect to Knapczyk and Caines that the time period fromNovember 13, 2007 to February 25, 2008 was due to limitations of institutional resources. Itaccepts all parties should have been prepared to proceed to the preliminary inquiry as ofNovember 13, 2007. It contends this is a reasonable period of delay based on the guideline forthe Provincial Court system set out in Morin.
[206] The Crown argues there was valid reason to keep Knapczyk and Caines as co-accusedwith Alcantara, despite any delay caused by Alcantara’s change in counsel on November 13,2007. They were charged with being in a common enterprise as co-conspirators in a conspiracyand co-accused in a criminal organization charge. The evidence against one is relevant againstthe others. To severe the charges against Knapczyk and Caines from those against Alcantarawould have meant the Crown would have had to run two or three lengthy complex prosecutionswith essentially the same evidence in each.
[207] The Crown also argues that the time period from February 25, 2008 to April 7, 2008, thestart of the Koker A preliminary inquiry, should be attributed as against Alcantara to his own
Page: 47
actions and should weigh against him. It states that neither Alcantara nor his counsel wereavailable to have the Koker A preliminary inquiry scheduled during this time period as they wereinvolved in the Koker B preliminary inquiry.
[208] The Crown maintains that any delay caused by unavailability of an accused involved inmultiple prosecutions should be counted against the accused rather than the Crown, in the sameway that it would be if the accused failed to retain counsel in sufficient time to proceed with ascheduled trial date. The Crown concedes that if it is established the delay was caused by Crownnegligence in scheduling the separate prosecutions, a portion of the time may be attributable to it.
[209] The Crown submits that it was available to proceed with both preliminary inquiriessimultaneously. It had assigned separate prosecutors to the two prosecutions, which would haveallowed both preliminary inquiries to proceed at the same time. It says its scheduling of the twopreliminary inquiries consecutive to each other was nothing more than its acquiescence to theinevitable.
[210] The Crown takes the position that its decision to proceed with Koker B first cannot beattributed to any improper purpose or Crown negligence. It points out that Alcantara consented tothe order of proceeding with the prosecutions. It argues that there was little to distinguish KokerA from Koker B: both involve serious charges; both concern a similar number of accused personsand unindicted co-conspirators; both involved a detained accused; and that nothing stands out tomilitate in favor of one proceeding first. To accede to the notion that the Crown must bearresponsibility for delay occasioned by its exercise of discretion in such circumstances wouldmean that one or more prosecutions in a multi-pronged investigation would always be susceptibleto dismissal for delay because of the sequencing chosen by the Crown. The Crown suggests thisresult is not logically tenable.
[211] The Crown argues that the February 25, 2008 to April 7, 2008 time period should beattributed to “other reasons for delay” as against Knapczyk and Caines. The delay was caused byactions of Alcantara, but there were valid reasons not to sever the charges against Knapczyk andCaines, as discussed above. The Crown also notes that Knapczyk and Caines did not apply tosever their charges from those of Alcantara to obtain an earlier hearing date.
(c) Evidence of Sherry Stasiuk
[212] Ms. Stasiuk, currently a business analyst for Court Management with Alberta Justice,testified on this application. She has been with Court Services since 1980 and was a trialscheduler for ten years. As part of her duties, she was responsible for setting dates for matters toproceed in the Provincial Court. She recalled being asked on Project Koker to set back-to-backdates for two sets of charges. In May 2007, dates in the Provincial Court were set based on policeavailability, court time and counsel availability. A matter requiring one day of court time wouldreceive an earlier court date than one requiring 15 days of court time.
Page: 48
[213] Ms. Stasiuk said that she gave Mr. Gregory Rice the earliest consecutive back-to-backdates that she had available. She recalled that he was not happy that the dates were so late. Shecould not remember if Defence counsel were present at the time, but she presumed they weresince she indicated their names on the scheduling notice and scheduled a pre-trial conference,which would have required that she know the availability of Defence and Crown counsel.
[214] Ms. Stasiuk explained that when setting a date for a preliminary inquiry, normally shewould have gone into JOIN, one of the Courts’ computer system, she would have put in thedocket number and then would have checked officer availability. She advised that on May 4,2007, when she scheduled the preliminary inquiry in the present matter for April 7, 2008 to May22, 2008, police availability was not a factor in the scheduling as that information had not beenput into the system so far in advance.
[215] The preliminary inquiry in Koker B was scheduled for 28 days, starting on February 25,2008. Ms. Stasiuk testified that she could have scheduled the Koker A preliminary inquiry first ifthose had been her instructions. She had no idea why one of the Koker matters was scheduledbefore the other. Initially, she said that it was probable an earlier date could have been found forthe first preliminary inquiry but for the instructions she received from the Crown to set thematters back-to-back. After reviewing an accumulated times report for May 4, 2007, sheconfirmed that as at that date she had a three week block available from December 3 to 21, 2007(15 sitting days). The preliminary inquiry for Koker A was scheduled for 30 days, however.December 21 was the last sitting day before the end of the year. Additional dates were availablest
on January 17, 18, 24, 25 and 28, with a further eight days available from January 30 through toFebruary 8, 2008. There were no further dates available in February without using the actualKoker B dates.
[216] Ms. Stasiuk said that in her experience in scheduling inquiries and trials, she could notrecall ever scheduling a long inquiry or trial in such broken segments. She testified thatpreliminary inquiries always run on consecutive sitting days. She has scheduled shorter trials andsplit the trial dates up, but not for something requiring the amount of time necessary for theKoker A or Koker B matters. She could not recall having offered counsel split times and said sheprobably did not do so. As a result, she would not have been aware of whether counsel wasavailable on the December and January dates she listed above.
(d) Decision on Stage 2
[217] In my view, the Crown acted reasonably in separating the Koker A and Koker Bprosecutions rather than charging all of the accused in the two matters on one indictment. Sevenaccused would have been at the very upper end of what the court in Pangman considered mightbe manageable. The Crown was entitled to exercise its discretion in that regard.
Page: 49
[218] In R. v. Guilbride, 2006 BCCA 392, 211 C.C.C. (3d) 465, the British Columbia Court ofAppeal indicated at para. 110 that: “[a]bsent a challenge for abuse of process, the Crown is freeto determine how it will prosecute a case, and delay must be assessed on the basis of the chargesas the Crown has framed them.”
[219] It was reasonable for the Crown to want to schedule the preliminary inquiries in bothmatters back to back in order to maximize efficiency. In any event, it is clear from Ms. Stasiuk’sevidence that even if she had not been instructed to provide back-to-back dates and even if theKoker B matter had not been scheduled first, there was no 30 day period available for the KokerA preliminary inquiry before February 25, 2008. It also made sense to run preliminary inquiriesinvolving charges of this complexity continually rather than in segments.
[220] Given this evidence, I conclude that the period from November 1, 2007 to February 24,2008 must be attributed to institutional delay and that such period was reasonable considering thepreliminary inquiry was anticipated to take 30 days.
[221] Alcantara retained new counsel on or before August 27, 2007 and the Crown argues thatthe time necessary for Clayton Rice to review disclosure and prepare for the preliminary inquiryin Koker A should be counted against Alcantara.
[222] In Chan at para. 407, Sulyma J. discussed the issue of dominant or overriding cause fordelay, stating:
I reject Mr. Bloos' argument that where the "dominant cause" of delay is aconsequence of Crown action or inaction, other activity occurring within thoseCrown-action delay periods is irrelevant for purposes of the Morin delaycalculation. I do not accept that Crown-action delay necessarily absorbs inherentor Defence delay. In my view, Morin mandates that all reasons for delay beexamined and weighed in determining whether the delay involved has beenunreasonable.
However, I do acknowledge that a number of cases use language that suggestsconcurrency and dominant cause principles, including Antinello, Sander, Court,Siemens, and Tapp. While the terms "concurrent cause" and "dominant cause" arenot employed, the courts do refer to a "root cause" or to a particular causeovershadowing another. Glithero J. in Court found that non-disclosure in that casewas so extensive he was unable to perform the traditional Morin time analysis. Nosuch difficulty arises in the present case. In undertaking the Morin analysis, I willhave consideration to concurrent causes of delay and the weight to be assigned toeach cause in examining particular periods of time and the whole of the delay.
[223] In my view, the institutional delay was the more significant cause of delay in this period.The evidence is that, even if Alcantara had not retained new counsel and even if Koker A had
Page: 50
proceeded first, the preliminary inquiry in this matter could not have commenced prior toFebruary 25, 2008.
[224] As Alcantara was an accused in both matters, he cannot argue that the Crown wasresponsible for the period of delay between the start of the Koker B preliminary inquiry and thestart of the Koker A preliminary. In my view, as against Alcantara, that period of delay should beregarded as “other reason for delay” given that he and his counsel, who acted in both matters,were unable to attend both preliminary inquiries simultaneously. In terms of his submission thatKoker A was inactive from February 25, 2008 to April 6, 2008, I note that pre-preliminaryinquiry conferences were held during that time.
[225] Caines and Knapczyk submit that, as against them, the delay from February 25, 2008 toApril 6, 2008 should be attributable to the Crown as it was the Crown’s choice to proceed withthe Koker B matter first.
[226] In R. v. Ghavami, 2010 BCCA 126, 253 C.C.C. (3d) 74, most of the delay complained offlowed from the Crown’s decision to prosecute two accused and others on a federal indictmentwhen those two accused were facing a concurrent provincial indictment. The court commented atpara. 41 that: “[i[n the absence of an allegation of abuse of process, the Crown's chargingdecision cannot be challenged,” but noted that this rule does not preclude the court on a s. 11(b)application from bringing into the balance the Crown's conduct of the prosecution so long as thefocus remains on delay and the causes of that delay. It reiterated at para. 54 that any delayflowing directly out of a charging decision is not attributable to the Crown, and, therefore, suchdelay takes on a lower weight in the balancing under s. 11(b). The court was of the view that thecharging decision establishes the inherent time requirements for the case given that the numberand type of charges, number of accused, and nature of the offences dictate complexity, timerequired for preparation, and intake requirements.
[227] It was within the Crown’s discretion to keep Koker A and Koker B as separateprosecutions and to include the charges against Alcantara in the present Indictment. As Alcantaraalso was one of the accused charged in Koker B, the Crown had to choose one of the matters toproceed first as it could not run them simultaneously. There has been no suggestion that it actedimproperly in choosing to schedule the Koker B preliminary inquiry before that of Koker A.While it is possible that the preliminary inquiry in one of the matters could have been scheduledfor the mornings and the preliminary inquiry in the other for the afternoons, there is no evidencethat such scheduling would have resulted in the Koker A preliminary inquiry concluding before itactually did.
[228] I agree with the Crown that, as against Caines and Knapczyk, the period betweenFebruary 25, 2008 and April 6, 2008 should be attributed to “other reasons for delay.”
Stage 3: April 7, 2008 (start of preliminary inquiry) to July 14,2008 (committal to stand trial)
Page: 51
(a) Events
[229] The preliminary inquiry in this matter commenced on April 7, 2008. The three Accusedwere committed to stand trial on July 14, 2008.
(b) Arguments of Caines
[230] Caines suggests that if Koker B had not existed (and the Crown had brought theappropriate motion with respect to Mr. Chadi at the earliest date possible), Koker A would havebeen at the committal stage when the committal in Koker B occurred and he would have been ina position to set dates for trial or pre-trial motions as early as May 30, 2008, which was the nextarraignment date in the Court of Queen’s Bench after the Koker B committal. Therefore, hecontends the entire delay from May 30, 2008 to August 29, 2008 is solely attributable to theCrown.
(c) Decision on Stage 3
[231] As previously stated, Alcantara was involved in both prosecutions. The Crown had toselect one of the matters to proceed first. In my view, it was reasonable for the Crown to proceedagainst all three Accused under one Indictment. Caines and the other Accused did not apply forseverance (during this time period). Any delay occasioned by Koker B proceeding first at thepreliminary inquiry stage already has been accounted for as “other reasons for delay”. In myview, analysis of the remainder of the timeline should be undertaken on the basis of what, in fact,occurred rather than what might have occurred if Koker A had proceeded first.
[232] I conclude that the time period from April 7, 2008 to July 14, 2008 taken for thepreliminary inquiry in the present matter and for the Provincial Court Judge to render hisdecision on committal was part of the inherent time requirements of the case.
Stage 4: July 15, 2008 (day after committal to stand trial) toSeptember 5, 2008 (adjournment request)
(a) Events
[233] The Indictment in Koker A was filed on August 22, 2008.
[234] On August 29, 2008, the Crown and Mr. Gubbins, as agent for counsel for Alcantara,asked for an adjournment of the proceedings until September 5, 2008.
(b) Arguments of the parties
[235] Alcantara suggests that the time that elapsed pending assignment of a trial judge in thiscase falls under the category of institutional delay, but concedes the delay was marginal.
Page: 52
[236] The Crown submits that the time period from July 14, 2008, when the Applicants werecommitted to stand trial, until August 29, 2008, the first date for arraignment, should beattributed to inherent time requirements of the case. During this time period, the prosecution wasmoved from the Provincial Court system to the Court of Queen’s Bench for trial. The Crownsuggests this was done in an expeditious manner and was reasonably required to advance theprosecution to the trial stage.
(c) Decision on Stage 4
[237] In my view, the delay from July 15, 2008 to August 22 2008 was part of the inherent timerequirements of the case as it is attributable to the Crown preparing and filing the Indictment.
[238] The delay from August 23, 2008 to the next arraignment date of August 29, 2008 wasinstitutional.
[239] It appears from the transcript of the comments made on August 29 by Mr. G. Rice forth
the Crown and Mr. Gubbins that Defence counsel had been discussing possible trial dates, takinginto consideration the pre-trial motions in Koker B set for February 2 to May 29, 2009. Mr.Hrabcak was not in attendance on August 29 , but Mr. G. Rice advised that Mr. Hrabcakth
apparently had been under the impression that Defence counsel would not be in a position toschedule the trial on that date. Mr. G. Rice and Mr. Gubbins both asked that the matter go over tothe next arraignment date, although Mr. G. Rice, who appeared for Mr. Hrabcak, did have Mr.Hrabcak’s calendar and presumably could have agreed to trial dates if Defence counsel had beenprepared to set them.
[240] The Crown and the agent for counsel for Alcantara both asked for the adjournment. Thecomments of counsel for Alcantara on September 5, 2008 suggest that even by then Alcantaraand the Crown were not in a position to agree to trial dates. The difficulty in scheduling mayhave arisen as a result of Alcantara’s involvement in both Koker A and Koker B prosecutions,but given the comments made by Ms. Karout as agent for Mr. Chadi on September 5, 2008, theadjournment also may have been sought because the Crown and Mr. Chadi were attempting toresolve the matter as against Caines before Mr. Chadi decided whether to withdraw as counseldue to his conflict of interest.
[241] This short time period may simply be accounted for by the exigencies of schedulingamong multiple counsel at the tail end of the summer break. I conclude that this time period, ifnot actually waived by the Defence, should be considered as “other reasons for delay.”
Stage 5: September 6, 2008 (day after adjournment request) toOctober 24, 2008 (setting of trial dates)
(a) Events
Page: 53
[242] As noted above, an agent for Mr. Chadi appeared on the September 5, 2008 arraignmentdate and advised the Court that Mr. Chadi was requesting a four week adjournment. The Courtadjourned the matter to the next arraignment date, September 26, 2008.
[243] On September 26, 2008, Mr. Chadi applied to be removed as counsel of record for Cainesand Knapczyk due to conflict of interest. Counsel for Alcantara advised the Court that he was nottoo concerned with the previous three-week period of delay, but was concerned with any longerdelay as they were on the verge of scheduling trial dates.
[244] It was not until October 24, 2008 that the tentative date of November 2, 2009 wasselected for commencement of the trial. This was confirmed on November 28, 2008, when Mr.Juneja advised the Court that he had been retained by Knapczyk.
(b) Facts in the present case relevant to the conflict issue
[245] Caines was charged in Information No. 061444279P1, sworn on November 24, 2006. Hewas arrested on December 5, 2006, after turning himself in to the police. Information No.070060157P1 was sworn on January 8, 2007 as a replacement for Information No. 061444279P1.Caines was jointly charged with Alcantara and Knapczyk in this new Information withconspiracy to traffic in cocaine and substantive trafficking. Caines also was charged in a separatecount with a criminal organization offence (charges currently before this Court).
[246] Knapczyk retained Mr. Chadi as counsel starting December 4, 2006 and Caines retainedMr. Chadi as counsel starting December 5, 2006. By February 26, 2007, Mr. Chadi was counselof record for both Caines and Knapczyk. The Crown did not object to Mr. Chadi representingeither, although Mr. Chadi previously had represented Marche, one of the unindicted co-conspirators and a witness the Crown intended to call with respect to this matter.
[247] From the date the first information was filed on November 24, 2006, Defence and Crownwere aware that the unindicted co-conspirators include Aaron McDonald (“McDonald”), JodySmith, Michael Marche (“Marche”), Cal Gregoire (“Gregoire”), Jeremy Cardinal (“Cardinal”),Charles Weston Flight (“Flight”), John Norman Caines, Ricco King, Melissa Diane King, MarkAndrew Hoskins (“Hoskins”), Farhan Sattar, Kamran Sattar, Jamie Richard Correia, PatrickFelix, Anthony Saunders, Beau Yakimishyn, Josh Preston and Nicholas Bela Van Den Hurk.
[248] The following description of the counts against Caines (Counts #1, 2, 4-11), Alcantara(Counts #1-3) and Knapczyk (Counts #1-3) was available to the Defence at least by August 27,2007 through disclosure of the Report to Crown Counsel Narrative in Koker A:
Count # 1: Conspiracy to traffic cocaine between the dates of: 22 August 2005-14 February 2006
Count # 2: Trafficking (cocaine) between the dates of:
Page: 54
22 August 2005-14 February 2006
Count # 3: Aiding the commission of an offence for a criminal organizationbetween the dates of 22 August 2005-14 February 2006
Count # 4: Instructing the commission of an offence for a criminalorganization between the dates of 22 August 2005-14 February2006
Count # 5: Possession of proceeds of crime between the dates of:22 August 2005 -17 December 2005
Count # 6: Possession for the purpose of trafficking (cocaine)(re: Aaron MCDONALD on 15 September 2005)
Count # 7: Possession for the purpose of trafficking (cocaine)(re: Charles FLIGHT on 27 October 2005)
Count # 8: Possession for the purpose of trafficking (cocaine)(re: Michael MARCHE on 24 November 2005)
Count # 9: Possession for the purpose of trafficking (cocaine)(re: KING’s rental property, Fort McMurray on 1 December 2005)
Count # 10: Possession for the purpose of trafficking (cocaine)(re: CARDINAL seizure, Fort McMurray on 17 January 2006)
Count #11: Obstruction of justice: 20 October 2005.
[249] The dates above in Counts #1 and 2 were amended in the present Indictment to July 1,2005 to March 31, 2006.
[250] The disclosure provided to Knapczyk and Caines at least by June 1, 2007 and toAlcantara at least by August 27, 2007 contained an executive summary of the Report to CrownCounsel, including a document described as “source materials in support of W.T. 1713” andentitled “Overview of Relevant Seizures.” The document states that:
While WT 1709, 1712 and 1713 were in effect, the investigative team made anumber of substantive seizures in relation to Caines and his network of traffickers.The seizures are as follows:
(a) On September 15, 2005, Fort McMurray Drug Sectioninvestigators executed a warrant at Aaron Patrick McDonald
Page: 55
(“McDonald”) and Letisha Dawn Peters’ (“Peters”) residence,seizing cocaine, cash, a handgun, and other items. While thisinvestigation was independent of Project Koker, the police allegethe seized cocaine belonged to Caines.
(b) On October 27, 2005, Banff investigators stopped a vehicle drivenby Charles Weston Flight (“Flight”) and executed a warrant onbehalf of the Koker investigative team. Cocaine and marihuanawas seized from the trunk of the car. The police allege Flight hadreturned from British Columbia after picking up the cocaine onbehalf of Caines.
(c) On November 10, 2005, at the request of the Koker investigativeteam, Red Deer Drug Section investigators stopped a vehicledriven by Caines, and seized $95,600.00 in cash from the vehicle.
(d) On November 24, 2005, Red Deer investigators stopped a vehicledriven by Michael Francis Marche (“Marche”) and executed awarrant on behalf of the Koker investigative team, seizing cocainefrom the vehicle.
(e) On December 1, 2005, Fort McMurray investigators received acomplaint about a suspicious substance found at an abandonedrental property. The investigators attended at the scene and seizedcocaine from the property. The rental property is alleged to havebeen owned by Ricco King. The police contend the cocainebelonged to Caines.
(f) On January 17, 2006, Fort McMurray investigators executed awarrant at a residence and seized cocaine, $12,000.00 in cash and amoney counting machine. While this investigation wasindependent of Project Koker, the police allege the seized cocainebelonged to Caines.
[251] The Report to Crown Counsel, which was disclosed to the Defence, also referred to theanticipated role of Michael Marche as a Crown witness, as well as to the following allegedrelationships between various individuals:
1. Marche is a “co-operating witness for the prosecution:”
...on 23 February 2006, Michael Marche provided a sworn statement to Cpl.Anderson of the Edmonton Drug Section ... . MARCHE is a former trusted
Page: 56
member of CAINES’ network and is now a cooperating witness for theprosecution.
In the statement, MARCHE identified himself as a significant cocainetrafficker in CAINES network. MARCHE stated that he had received acall from Caines on 15 September, advising Marche that an anticipatedshipment of cocaine had come in, and that MARCHE was to attendMcDONALD’S residence to pick up his supply. MARCHE advised that heattended 123 Gypsy Place in Fort McMurray, as instructed by CAINES,and subsequently provided information to investigators that resulted in theaforementioned CDSA Search Warrant.
2. The seizures of cocaine are said to be that of “...Caines’ network oftraffickers...” including McDonald, Flight, Marche and Ricco King.
3. There is a transcript of an interview in which the lead investigator,Corporal Anderson, advises Caines of the theory of the police, naming theco-conspirators as McDonald, Marche, Gregoire, Cardinal, Flight, JohnCaines, the Kings, Hoskins, and others, as well as contending that Cainesattempted to obstruct justice through his dealings with Berube.
4. The Report speaks to the charges against Flight and John Caines, and thatCaines, Alcantara and Marche are alleged unindicted co-conspirators inthat prosecution.
5. The Report contends that John Caines worked in concert with Flight in theCaines operation.
6. The Report contends that Cardinal was a trafficker in Fort McMurray,working in the Caines network.
[252] On June 14, 2007, Anderson P.C.J. wrote to Crown and Defence counsel confirming eachof their retainers. He referred to Mr. Chadi as counsel for Caines, Knapczyk, Flight and JohnCaines. He wrote:
Mr. Chadi has advised the Court that he has satisfied himself he is not acting in aconflict of interest and has the consent of each of his four clients to act for theother. The Crown is not alleging a conflict of interest which I understand toinclude an implicit representation that the Crown does not foresee calling any oneof the four accused against any of the others, with some being charged on separateinformations. [Emphasis added.]
Page: 57
[253] On November 22, 2007, Caines signed a “Consent Regarding Independent Legal Advice”respecting Mr. Chadi’s joint representation of him and Knapczyk, which stated:
I, Jeffrey Mark Caines, confirm that I spoke to Ajay Juneja, Barrister and Solicitoron the 15 day of November 2007 and understand that Mr. Chadi represents bothth
myself and Alan Peter Knapczyk regarding criminal charges stemming from andbetween the years of 2005 and 2006. These charges pertain to Conspiracy toTraffic, Criminal Organization, Trafficking in Cocaine etc.
There is presently a Preliminary Inquiry set for April 7, 2008 until May 22, 2008in Edmonton, Provincial Court and I acknowledge and waive my rights toIndependent Counsel and consent to Mr. Chadi acting for myself and Mr.Knapczyk regarding said Preliminary Inquiry.
[254] On November 22, 2007, Knapczyk signed a “Consent Regarding Independent LegalAdvice” mirroring that of Caines.
[255] On November 22, 2007, Mr. Juneja signed a Certificate of Independent Advice certifyingthat: Knapczyk attended before Mr. Juneja respecting charges of conspiracy to traffic, criminalorganization and trafficking in cocaine; his co-accused is Caines; Knapczyk appears tounderstand the charges and that he and his co-accused have both retained Mr. Chadi and wishhim to represent them at the preliminary inquiry; he wishes to make no statement himself oragainst Caines, though he understands that he can do so; he wishes Mr. Chadi to represent himdespite the fact Caines is his co-accused and also represented by Mr. Chadi; that Mr. Juneja issatisfied Knapczyk is fully apprized of potential consequences and is doing so with fullknowledge and voluntary mind.
[256] On December 21, 2007, the Crown wrote to Mr. Chadi indicating that the waivers andcertificates were deficient in that (a) they referenced the preliminary hearing only and mustreference the trial; (b) the independent counsel was the same person (Mr. Juneja). On January 23,2008, the Crown again wrote seeking the amended waivers and certificates. On February 21,2008, the Crown wrote, noting that it “was on the basis of your representations that a properwaiver and affidavits of independent advice would be obtained from both Jeff Caines and AlanKnapczyk that the Crown was prepared to proceed without raising the conflict issue.”
[257] On January 23, 2008, the Crown wrote to Mr. Chadi and Mr. Clayton Rice advising thatthe Crown wished to address the issue of conflict at a case management meeting scheduled forJanuary 24 and asking that the revised documents be provided before the meeting. th
[258] On February 21, 2008, the Crown again wrote to Mr. Chadi noting that his agent hadassured the Crown at the last case management hearing that the waivers and affidavits would beforwarded to the Crown imminently, and providing a deadline of February 26, 2008.
Page: 58
[259] On February 22, 2008, Caines signed a new Consent form referencing both thepreliminary hearing and trial, with Mr. Brownlee signing the Certificate of Independent LegalAdvice.
[260] On February 25, 2008, Knapczyk signed a new Consent form referencing both thepreliminary hearing and trial, with Mr. Juneja signing the Certificate of Independent LegalAdvice.
[261] On April 3, 2008, Anderson P.C.J. wrote to Philp P.C.J., the judge presiding over thepreliminary hearing, stating:
The issue of conflict was canvassed at several stages during the case managementconferences. It was raised because not only is Mr. Chadi acting for the twopersons charged jointly on this information; he also acts for two of the individualsnamed in the alleged conspiracy. In a parallel prosecution, Mr. Chadi’s conflictedposition became irresolvable, shortly before the scheduled preliminary inquirysuch that the preliminary inquiry had to be adjourned so that both could get newcounsel.
I have been advised by Counsel that the conflict issue will not arise during thecourse of this preliminary inquiry and the accused have been advised that if it doesarise such that Counsel can not continue, they must expect that the preliminarywill continue.
[262] Anderson P.C.J. was referring to John Caines and Flight as the other two individualsnamed in the alleged conspiracy for whom Mr. Chadi was acting.
[263] The Koker A preliminary inquiry commenced on April 7, 2008 before Philp P.C.J.. OnApril 22, 2008, the Crown called Michael Marche to the stand. The record of the proceedings forthat day shows Mr. Hrabcak and others attended for the Crown, Mr. Rice for Alcantara, Mr.Chadi for Knapczyk (likely for Caines as well, although the record does not say so), and Mr.Juneja for Caines and Knapczyk. Mr. Hrabcak examined Marche in chief. The following day,April 23 , in an effort to employ the “Dix” procedure whereby independent counsel would cross-rd
examines the witness, Mr. Juneja cross-examined Marche. Mr. Chadi was not present. Marchewas then cross-examined by Mr. Rice and re-examined by the Crown. On April 24 , the Crownth
examined Debbie Weiss, followed by cross-examination by Mr. Rice. Mr. Chadi was acting forCaines and Knapczyk and had no questions, nor was there any re-direct by the Crown.
Page: 59
(c) Facts relevant to the conflict issue relating to other casesin which Mr. Chadi acted as defence counsel forunindicted co-conspirators and an intended witness inKoker A
[264] In addition to being counsel of record for both Caines and Knapczak, Mr. Chadirepresented a number of individuals who are unindicted co-conspirators in the Koker Aprosecution in separate proceedings against them for charges relating to events that underliecertain of the charges in the Informations and present Indictment. One of those unindicted co-conspirators, Marche, also is a prospective Crown witness in Koker A.
[265] The role of Mr. Chadi in the various related prosecutions, including his representation ofCaines and Knapczyk in the present prosecution (Koker A), commenced in 2001 and continueduntil September 26, 2008, when he was permitted to withdraw as counsel for Caines andKnapczak. The time frames and interconnections are complex. The parties being represented, thedifferent prosecutions, and the time frames involved are set out in the chronology below and ineven greater detail in Appendix A.
[266] The five events the Crown seeks to prove against Caines in Counts #6 to 10 of the presentIndictment reference the same events that were the subject of charges brought individuallyagainst McDonald, Marche, Cardinal, Flight and John Caines, as summarized below and detailedin Appendix A.
[267] The five events the Crown seeks to prove against Caines in Counts #6 to 10 of the presentIndictment reference the same events described in the Overview of Relevant Seizures in relationto McDonald, Marche, Cardinal, Flight and King.
[268] The events the Crown seeks to prove against Caines in Count #8 of the presentIndictment reference the same events of November 24, 2005 that were the subject of chargesarising on that same date against Hoskins.
[269] It is further my understanding that the event involving the obstruction of justice regardingMelanie Berube that the Crown seeks to prove against Caines in Count 11 of the Indictment isalleged to be obstruction (that arose on October 20, 2005) respecting charges against Caines andBerube that arose in 2001, which concluded for Berube by January 31, 2003 and for Caines in2008.
[270] In the following chart (taken from material gathered by counsel for Caines and providedto the Court in relation to the charges against Melanie Berube (“Berube”) and the unindicted co-conspirators Hoskins, John Caines, Flight, Marche, Gregoire, McDonald and Cardinal), the firstcolumn identifies the accused in related proceedings. Those whose names are bolded wererepresented by Mr. Chadi. The earliest date an alleged offence is said to have arisen, the chargedate, the approximate start of Mr. Chadi’s representation of the accused and the end date of his
Page: 60
representation [I note that there were periods of time within those time frames when one or moreof the accused whose names are bolded were represented by other counsel], together withinformation concerning the proceedings, are given in the other columns:
Related Proceedings in Which Jamel Chadi Acted for an Accused
Name of
Accused
Alleged
Date of
Offence
Date of
Charge
Mr. Chadi
Started
Acting
M r.
Chadi
Stopped
Acting
Details
Caines and
Melanie
Berube*
Apr. 20,
2001
Apr.
20,
2001
Apr. 25,
2001
Oct. 1,
2008
Charges were possession of cocaine for the
purpose of trafficking. Caines also was
charged with trafficking in cocaine. Mr.
Chadi represented the two accused until at
least February 2002. He acted for Berube at
the preliminary inquiry on December 3,
2002. Caines and Berube were committed to
stand trial on that date. The Berube
committal was quashed prior to January 21,
2003. Mr. Chadi recommenced acting for
Caines until October 27, 2005, when the
charges against Caines were stayed by the
Crown. The charges were reactivated on
October 25, 2006 against Caines. Mr. Chadi
again acted for Caines until October 1, 2008,
when the charges were concluded. *Count
11 in Koker A alleges that on October 20,
2005, Caines offered Berube a bribe in
exchange for her evidence
Aaron
McDonald*
and Letisha
Peters
Sept. 15,
2005
Sept.
16,
2005
Oct. 11,
2005
June 28,
2006
Charges were related to various alleged drug
and firearms offences, including possession
of cocaine for the purpose of trafficking in
Fort McMurray. Mr. Chadi represented the
two accused until they entered guilty pleas to
certain of the charges and other charges were
withdrawn on June 28, 2006. *McDonald is
an unindicted co-conspirator in Koker A
Michael
Marche*
and Debbie
Weiss
Nov. 24,
2005
Nov.
24,
2005
Nov. 30,
2005
Dec. 20,
2005
Charges were possession of cocaine for the
purpose of trafficking. A stay of proceedings
was entered on December 20, 2005. Mr.
Chadi represented both accused. Marche
gave sworn statement to the police on Feb.
23, 2006. *Marche is an unindicted co-
conspirator in Koker A and is an intended
Crown witness.
Page: 61
Caines,
Knapczyk
and
Alcantara
(Koker A)
Jul. 1,
2005
Nov.
24,
2006
Feb. 26,
2007
Sept. 26,
2008
Charges are alleged drug offences and
criminal organization offences. Mr. Chadi
went on the record as counsel for Caines and
Knapczyk by or before February 26, 2007
and appears to have been acting for them
before that date. On September 5, 2008, he
applied to withdraw from the record due to
conflict of interest and was given leave to do
so on September 26, 2008.
Harry
Armstrong
Breakell,
Jeremy
Cardinal*
and Melissa
Dawn
Shephard
Jan. 17,
2006
Jan. 18,
2006
Jan. 24,
2006
Jan. 7,
2008
Charges were possession of drugs for the
purpose of trafficking and being in
possession of the proceeds of crime in Fort
McMurray. Mr. Chadi and then A. Gill of
Mr. Chadi’s office acted for all three. On
February 1, 2008, Cardinal pleaded guilty to
certain counts while all counts against
Breakell and Shephard were withdrawn.
*Cardinal is an unindicted co-conspirator
in Koker A .
Cal
Gregoire*
Oct. 8,
2006
? Nov. 7,
2006
Mar. 12,
2007
Charges were for assault, resisting a police
officer and other offences. A. Gill of Chadi
and Co. represented Gregoire until new
counsel appeared on March 12, 2007.
*Gregoire is an unindicted co-conspirator
in Koker A.
Charles
Weston
Flight and
John
Norman
Caines*
Oct. 18,
2005
Nov.
24,
2006
Nov. 30,
2006
Mar. 31,
2008
Charges were for conspiring with Caines,
Marche and others to traffic in cocaine and
for possession of the proceeds of crime. Mr.
Chadi represented both accused. The Crown
addressed Anderson P.C.J. on February 22,
2008 about a conflict in Mr. Chadi
representing both accused. On March 31,
2008, Mr. Chadi withdrew from the record
for John Caines. On April 1, 2008, Flight,
representing himself, entered pleas of guilty
to certain charges. *Flight and John Caines
are unindicted co-conspirators in Koker
A.
Page: 62
Ricco
King*,
Melissa
Diane
King*,
Mark
Andrew
Hoskins*
and others
Oct. 28,
2005
Nov.
24,
2006
Dec. 12,
2006
Sept. 17,
2008
Koker C: Charges were for conspiring with
Caines, Marche and persons unknown to
traffic in cocaine. Melissa King and Hoskins
also were charged with possession of the
proceeds of crime. Mr. James, counsel for
co-accused Ricco and Melissa King, wrote to
the Crown querying why the Crown had not
objected to Mr. Chadi acting for Hoskins
given his prior representation of Crown
witnesses Marche and Weiss. At the
preliminary inquiry on September 15, 2008,
Mr. Chadi applied to withdraw, referring to
independent counsel having cross-examined
Marche and Weiss in the Koker A
preliminary inquiry. He indicated that the
spectre of Caines being called by the
Defence put him in an untenable position. On
September 17, 2008, Mr. Chadi’s application
to withdraw was granted. Guilty pleas were
entered on February 5, 2009 with S. Virk
acting as counsel for Hoskins. *Hoskins and
the Kings are unindicted co-conspirator in
Koker A.
(d) Arguments of the parties
[271] It is argued by the Defence that this period of about seven weeks delay is attributable toMr. Chadi being in a position of conflict of interest, and the responsibility for that rests with theCrown.
[272] Alcantara originally submitted that there was a period of delay from September 5, 2008until October 24, 2008 which was attributable, as against him, to “other reasons for delay” orpossibly Crown delay as being the consequence of Mr. Chadi failing to deal with his conflict ofinterest issues at an earlier date and the Crown acquiescing in that failure. Alcantara now takesthe position that the delay occasioned by the conflict problem extended from September 5, 2008to November 28, 2008, when new counsel for Knapczyk was on board, and that it is delayattributable to the Crown’s failure to object to the Chadi conflict at an early stage.
[273] Alcantara notes that ss. 11(b) and 7 of the Charter protect liberty, security and fair trialinterests, and argues that the conflict issue engaged his fair trial interests. He points to Askov atpara. 43, where Cory J. stated that s. 11(b) is primarily concerned with an aspect of fundamentaljustice guaranteed by s. 7. The interplay between these sections of the Charter was described inthe following manner by Lamer J. in Conway at para. 65:
In my view, the fundamental purpose of s. 11(b) is to secure, within a specificframework, the more extensive right to liberty and security of the person of whichno one may be deprived except in accordance with the principles of fundamental
Page: 63
justice. The purpose of s. 11(b) can, in other words, be ascertained by reference tos. 7 of the Charter. Section 11(b) is designed to protect, in a specific manner andsetting, the rights set forth in s. 7, though, of course, the scope of s. 7 extendsbeyond those manifestations of the rights to liberty and security of the personwhich are found in s. 11. Hence, the focus for the analysis and properunderstanding of s. 11(b) must be the individual, his or her interests and thelimitation or infringement of those interests.
[274] Alcantara also refers to Morin at para. 27, where Sopinka J. reiterated that the individualinterests that s. 11(b) seeks to protect are “...(1) the right to security of the person, (2) the right toliberty, and (3) the right to a fair trial.”
[275] Finally, he refers to the comments of La Forest J. in R. v. Beare; R. v. Higgins, [1988] 2S.C.R. 387 at para. 39 that while the common law is not determinative of whether a particularpractice violates a principle of fundamental justice, it is a major repository of the basic tenets ofour legal system. As I understand this aspect of Alcantara’s argument, he is saying that thecommon law rules concerning conflict of interest infuse the fair trial interests protected by ss.11(b) and 7 of the Charter.
[276] Alcantara argues that there are two aspects to the evidence on the issue of the conflictsinvolving Mr. Chadi: (1) the conflicts that arise as a result of his representation of Berube andMarche are so apparent they leap off the page; and (2) the overall history of the variousinterrelated proceedings demonstrates a context of systemic conflicts. He contends that theCrown ought to have brought both of these conflicts to the attention of the Court and its failure todo so ought to be given weight in the overall assessment of reasonableness of the delay in thebalancing process.
[277] Caines maintains that the delay between September 5, 2008 and October 24, 2008 isattributable to the Crown alone, based on its failure to remove Mr. Chadi earlier on in theproceedings, particularly given that the issue was raised by Anderson P.C.J. during a casemanagement meeting on March 5, 2008.
[278] Caines points out that, as early as November 2005, when Marche and Weiss were chargedwith possession of cocaine for the purpose of trafficking, Corporal Anderson of the RCMP knewthat Marche and Caines were at least acquainted.
[279] Caines argues that the Crown knew, even prior to his arrest on December 5, 2006, thatMr. Chadi had represented many of the individuals involved in this prosecution as accused,unindicted co-conspirators or potential Crown witnesses, but did nothing to disqualify Mr. Chadifrom acting for anyone in this matter.
[280] He asserts that, because of this conflict, the Crown should have brought an application todisqualify Chadi & Co. years ago, citing in support of his argument R. v. Edkins, 2002 NWTSC
Page: 64
9; R. v. Baltovich (2003), 170 O.A.C. 327 (C.A.); and R. v. Shambray, 2005 MBQB 1, [2005] 6W.W.R. 386.
[281] Caines submits that the Crown should have raised the conflict at the earliest practicablestage (R. v. Brissett (2005), 74 O.R. (3d) 248 (S.C.J.)). He cites Brissett at para. 23 for theproposition that: “[w]hen the prosecution has notice of sufficient facts to found the application,the disqualification motion should be brought on notice ‘well before the start of the trial.’” [282] Caines points to certain pivotal dates in arguing that the Crown should have been astuteto the egregious extent of the conflicts in which Mr. Chadi had placed himself. Caines says thatby December 20, 2005, when the charges against Marche were stayed, it was clear to the Crownthat Marche would be an important witness in the Koker A prosecution. Marche gave a swornstatement to the police on February 23, 2006. Caines submits that at least by February 26, 2007,when Mr. Chadi became his counsel of record and counsel for Knapczyk in the Koker Aprosecution, Mr. Chadi’s conflicts involved: two accused, Caines and Knapczyk, charged withconspiracy; his former client Marche, who is a Crown witness; and his former clients McDonald,Cardinal, Gregoire, Flight, John Caines and Hoskins, all of whom are unindicted co-conspiratorsin Koker A.
[283] Caines notes that disclosure was provided commencing December 4, 2006 and thedisclosure hard drive was provided to his counsel on June 1, 2007, including the Report toCrown Counsel from the police, a document that is 285 pages in length [I note that the Slavinaffidavit suggests the Report was provided to all counsel on January 26, 2007]. In the Report, thedifferent threads in the case were tied back to Caines and demonstrated the alleged associationsbetween Caines, the indicted and unindicted co-conspirators, and the witness Marche. TheReport to Crown Counsel referred to the anticipated role of Marche as a Crown witness.
[284] Caines argues that the Certificates of Independent Legal Advice and Consents signed byhimself and Knapczyk on November 22, 2007 concerning Mr. Chadi’s representation of the twoof them were ineffective as the Certificates did not advert to the conflict respecting Marche andcertain unindicted co-conspirators [I note that Mr. Chadi apparently advised Anderson P.C.J.before June 14, 2007 that he had agreed to be counsel of record for John Norman Caines, Flight,Caines and Knapczyk and had the consent of each to act for them and the others].
[285] Caines points to the March 4, 2008 case management meeting, during which AndersonP.C.J. raised the problem of Mr. Chadi’s conflict in representing Caines and Knapczyk. Duringthe continuation the following day, the Crown said he did not foresee a conflict given they wouldbe of like mind in their defence and the waivers covered off the potential conflict. Mr. Chadiacknowledged Judge Anderson’s experience, and said that “... you have my undertaking thatevery precaution in this regard will be undertaken so that this matter can move forward.”
[286] Caines argues that the procedure employed of having independent counsel cross-examineMarche at the Koker A preliminary inquiry before Philp P.C.J. on April 7, 2008 did not meet the
Page: 65
procedural requirements contemplated by the Dix procedure, and could not cleanse the taint ofconflict. [287] The Indictment was filed in Koker A on August 22, 2008. The matter was put on theCourt of Queen’s Bench arraignment list for September 5, 2008. Caines refers to the inquiryinitiated by the Court on that date about whether Mr. Chadi was in a conflict of interest position.Ms. Karout, for Mr. Chadi, said that Mr. Chadi was involved in resolution discussions pertainingto Caines, but should there be no resolution, “of course, Mr. Chadi would have to get off therecord for one of the two...if not both... .” Counsel for Alcantara observed two conflicts - onebetween Caines and Knapczyk, and the other because Mr. Chadi was counsel for a major Crownwitness (Marche). Sanderman J. agreed with counsel’s observations concerning the two conflicts.
[288] Finally, Caines argues that the extent of the conflict is further shown by the need for Mr.Chadi to withdraw from the Koker C proceedings in which he was representing Hoskins at thecommencement of the Koker C preliminary hearing in Calgary on September 15, 2008. Mr.Chadi advised the Court at that time that he was in an “untenable position” as a result of aconflict and could not continue to act for Hoskins. Counsel for King advised the Court that Mr.Chadi had previously been counsel for Marche and Weiss, Crown witnesses, and was thencounsel for Caines, an unindicted co-conspirator in Koker C. He also raised the concern thatMarche’s statement to Corporal Anderson implicated (no doubt, he said, it was completelyunwarranted) Mr. Chadi in the conspiracy. The Court granted Mr. Chadi’s application for leaveto withdraw.
[289] The Crown contends that the time period from August 29, 2008 to June 9, 2009 isattributable to actions of Alcantara and should weigh against him as he and his counsel wereunavailable to proceed to trial on Koker A during that period.
[290] The Crown asserts that this time period should be attributed to “other reasons for delay”as against Knapczyk and Caines as the delay was caused by Alcantara and there were validreasons not to sever the charges against Knapczyk and Caines from those against Alcantara.
[291] In terms of the conflict of interest issue, the Crown does not dispute that a conflict ofinterest with Mr. Chadi was highlighted and resolved between August 29, 2008 and October 24,2008 by Caines and Knapczyk obtaining new counsel. It submits the conflict of interest did notcontribute to any additional delay given it was impractical to schedule the trial on Koker Aduring that time period due to the actions of Alcantara.
[292] Further, the Crown says that Knapczyk and Caines likely were not available to proceed totrial in this time period due to their own actions. Prior to the preliminary inquiry, they were madeaware of a potential conflict of interest with their counsel, Mr. Chadi. Nevertheless, they chose toproceed with Mr. Chadi as their counsel until Mr. Chadi removed himself as counsel onSeptember 26, 2008. On October 24, 2008, Mr. Lazin officially went on the record as counsel for
Page: 66
Caines. Knapczyk appeared with his current counsel, although Mr. Juneja had not yet been fullyretained. A trial date was scheduled in anticipation that Mr. Juneja would be retained in duecourse, as he was on November 28, 2008. The Crown suggests that, realistically, Mr. Lazin andMr. Juneja would not have been available to commence the Koker A trial prior to February 2,2009.
[293] The Crown argues there is no proof that Mr. Chadi’s withdrawal resulted in actual delayin the setting of the trial dates.
(e) Comments on previous representation of witness and theconflict issue
[294] The Court has the inherent jurisdiction, stemming from the role of lawyers as officers ofthe Court, to control the conduct of counsel in legal proceedings in the public interest. Theirconduct in legal proceedings may affect the administration of justice and is subject to thissupervisory jurisdiction (MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 at para. 18). Evenwhere there is no motion for disqualification before the Court, the Court has the inherentjurisdiction to require counsel to withdraw from proceedings (R. v. Dix, 1998 ABQB 92 at para.33, 218 A.R. 18).
[295] The court in MacDonald Estate at para. 13 identified three competing interests: (1) theconcern to maintain the high standards of the legal profession and the integrity of our system ofjustice; (2) the countervailing value that the litigant should not be deprived of his or her choice ofcounsel without good cause; and (3) the desirability of permitting reasonable mobility in the legalprofession. The court at para. 45 set out two questions that typically must be answered indetermining whether there is a disqualifying conflict of interest: “(1) Did the lawyer receiveconfidential information attributable to a solicitor and client relationship relevant to the matter athand? (2) Is there a risk that it will be used to the prejudice of the client?”
[296] Where a previous relationship existed which is sufficiently related to the retainer fromwhich it is sought to remove the solicitor, the Court should infer that confidential informationwas imparted unless the solicitor satisfies the Court that no information was imparted that couldbe relevant (MacDonald Estate at para. 46).
[297] The retainer in question here is the representation by Mr. Chadi of Caines and Knapczyk.The Court can infer that confidential information was imparted to Mr. Chadi by Marche, as wellas by the others Mr. Chadi represented in individual but related proceedings and who are nowunindicted co-conspirators in the Koker A prosecution.
[298] In MacDonald Estate at para. 47, the second question posed is whether the confidentialinformation will be misused:
Page: 67
... A lawyer who has relevant confidential information cannot act against his clientor former client. In such a case the disqualification is automatic. No assurances orundertakings not to use the information will avail. The lawyer cannotcompartmentalize his or her mind so as to screen out what has been gleaned fromthe client and what was acquired elsewhere. Furthermore, there would be a dangerthat the lawyer would avoid use of information acquired legitimately because itmight be perceived to have come from the client. This would prevent the lawyerfrom adequately representing the new client. Moreover, the former client wouldfeel at a disadvantage. Questions put in cross-examination about personal matters,for example, would create the uneasy feeling that they had their genesis in theprevious relationship.
[299] In my view, these observations apply in respect of Mr. Chadi being in an adverserelationship to and having to cross-examine his former client, Marche.
[300] In Brissett, Hill J. wrote at para. 45:
An attack on the credibility of the former client witness, or the real potential forsuch confrontation, in the context of counsel having had access to relevantconfidential information in the prior retainer, squarely raises conflict of interestwith counsel in an adversarial stance to his former client: R. v. York, supra atpages 3-4; R. v. Edkins, supra at para. 11. Indeed, it has been suggested that thewitness may be in a position to assert "countervailing constitutional rights":Proulx and Layton, Ethics and Canadian Criminal Law, supra at 292-3. Can it beshown that "a reasonably informed person would be satisfied that no use ofconfidential information" would occur? (R. v. Parsons, supra at page 5).
[301] In R. v. Con-Drain Co.(1983), 2008 ONCJ 114, the court dealt with an application by theCrown to remove counsel who had represented both the corporate and individual defendants inproceedings under the Occupational Health and Safety Act. The Crown alleged conflict ofinterest as charges were stayed against the individual defendant and he became a Crown witness.The motion requesting counsel’s removal was granted because of the risk that relevantconfidential information would be used to the prejudice of the former individual defendant andbecause counsel would have a right to cross-examine him as a Crown witness. The courtexpressed the concern that even if lawyer/client confidences were not misused incross-examination, the witness might be prone to his former lawyer's suggestions due to fear ofmisuse or due to trust arising from their lawyer/client relationship (at para. 33).
[302] The Crown argues that the conflict presented by Mr. Chadi’s prior representation ofMarche was resolved at the preliminary inquiry by using the Dix procedure.
[303] The Dix procedure takes its name from the decision of Veit J. in Dix. In that case,Mr. Dix was faced with two counts of first degree murder. Late disclosure revealed that a
Page: 68
jailhouse informant was to provide crucial evidence against Mr. Dix. Counsel for Mr. Dix hadrepresented the informant some six years prior on a parole violation, and his partners had actedfor the informant about four years prior. On the Crown’s application to have the court requirethat counsel for Mr. Dix withdraw from the case, Veit J. considered the guidelines established bythe Supreme Court of Canada in Macdonald Estate for determining whether a lawyer should bedisqualified from acting because of conflict of interest.
[304] Veit J. found that defence counsel’s situation was not like that of counsel in MacDonaldEstate. The lawyer in MacDonald Estate had moved to another firm that was acting against theformer client and in the same lawsuit, whereas in Dix the case before the court was unrelated tothe case in which defence counsel had represented the former client.
[305] Veit J. denied the Crown’s application and instead accepted the defence proposal thatindependent counsel cross-examine the informant. In addition, she directed that elaborateprocedures be implemented to ensure that no disclosure of confidential information would occurby the "tainted" lawyer to the lawyer conducting the cross-examination of the informant.Specifically, she accepted defence counsel’s undertaking that he and his associates would notpass on any privileged or confidential information relating to the informant to the independentcounsel conducting the cross-examination. She required defence counsel and his associates whohad represented the informant in the past to file affidavits in which each of them swore to thefacts relating to their treatment of information concerning the informant. Defence counsel wasdirected to give written instructions to everyone in his firm that the firm’s files relating to theinformant would remain sealed and was to tell all employees of the office that disciplinary actionwould ensue if there was a breach of that direction. Finally, the court ordered that theindependent lawyer hired to cross-examine the informant would receive full crown disclosurerelating to the informant from the Crown directly and not from defence counsel or his associates.In this way, the confidentiality of the informant’s previous relationship with counsel for Dix wasmaintained but at the same time Dix was assured his right to counsel and entitlement to a speedyfair trial.
[306] There is a significant difference between Dix and the present case. In this case, the Crownwitness at issue, Marche, is alleged to be part of the conspiracy while in Dix, the Crown witnesshad previously been represented in unrelated matters. The conflict in Dix arose late in theproceedings and came as a surprise to defence counsel. The conflict respecting Marche wasobvious to all at least by the time disclosure of the Report to Crown counsel was provided inJune 2007, and likely much sooner.
[307] Mr. Chadi represented Marche with respect to charges of cocaine trafficking in FortMcMurray laid on or about November 24, 2005. In the Koker A prosecution, Marche is said tohave been trafficking in the Caines organization and his activities are said to have given rise toCount #8 against Caines in the Information before the Court at the preliminary inquiry and in theIndictment before this Court. Marche testified at the preliminary and is expected to testify at trial.
Page: 69
[308] There were no consents or certificates of independent advice in respect of the Marcheconflict, either signed by and for Marche, Knapczyk or Caines. There is no evidence thatprocedures were undertaken, as in Dix, to ensure the confidentiality of Marche was protectedexcept that independent counsel undertook the cross-examination.
[309] I conclude that Mr. Chadi had a conflict of interest with respect to the representation ofCaines and Knapczyk in the Koker A prosecution because he was former counsel to Marche, akey Crown witness, a fact known to Mr. Chadi from the Information and confirmed whendisclosure was received by him on or before June 1, 2007. That disclosure also contained anallegation by Marche of Mr. Chadi’s involvement in the conspiracy (an allegation that isunproven). The Dix procedure employed was minimal, and no consents were obtained fromMarche or Caines or Knapczyk relative to that conflict. The moment that Mr. Chadi obtained theknowledge that Marche would be a Crown witness, he should have recognized the conflict andnot taken on the representation of Caines and Knapczyk.
[310] I note that Caines and Knapczyk do not raise the Marche conflict issue for any purposeother than in relation to the delay occasioned by the change of counsel for Knapczyk. Whatevermay have been the consequences at the preliminary hearing, in the proceedings before me,counsel collectively have been diligent in their representations and, as the record will show, todate no stone has been left unturned.
(f) Comments on unindicted co-conspirators and the conflictissue
[311] In Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001) at p. 307, MichaelProulx and David Layton emphasize that the duty of loyalty to a former client is not limited toparties who are charged on the information and can extend to unindicted co-conspirators.
[312] What of the potential conflict between Mr. Chadi’s representation of Caines andKnapczyk and his prior or concurrent representation of other alleged unindicted co-conspirators?If they were called as witnesses for the Crown or the Defence, there would be a conflict on thesame basis as there was arising from Mr. Chadi’s past relationship to the witness Marche. This isa potential conflict but was there also an actual conflict?
[313] While I do not need to decide this point, counsel have tendered extensive evidence andargument to demonstrate that Mr. Chadi’s representation of unindicted co-conspirators also led tohis being in conflict in the Koker A proceedings. When Mr. Chadi undertook the representationof Caines and Knapczyk, he had represented or was representing McDonald, Cardinal, Gregoire,Flight, John Caines and Hoskins in relation to their independent charges arising from events thatare alleged to form part of the conspiracy count. In the Koker A prosecution, it is alleged that thedrugs that were found in the possession of the co-conspirators belonged to Caines.
Page: 70
[314] As noted in McDonald Estate, at para. 46, where a previous relationship existed that issufficiently related to the one in issue, the Court should infer that relevant confidentialinformation was imparted in the first retainer. It can be assumed that Mr. Chadi receivedconfidential information relevant to the Koker A prosecution during his representations of certainof the alleged unindicted co-conspirators. Were the interests of the alleged co-conspirators interse congruent? Were their interests congruent with or in conflict with those of Caines andKnapczyk? Whose interests are paramount? Are the interests of some sacrificed to the interestsof others? Is the alleged criminal organization or conspiracy a hierarchical one? These areobvious questions that arise in this situation.
[315] The facts in this case are complex and the actions of the alleged conspirators andunindicted co-conspirators are inextricably interwoven because the facts relating to the chargesfaced by McDonald, Marche, Gregoire, Cardinal, Flight, John Caines and Hoskins are alleged toform part of the charges faced by Caines in the Koker A prosecution before the Court. In asituation such as this, where one counsel represents certain of the alleged conspirators and has, ordoes represent certain alleged unindicted co-conspirators, there are at least two broad bases ofconflict relating to the unindicted co-conspirators which must be examined.
[316] First, there is the potential that the unindicted co-conspirators may become witnesses, asis the case with the witness Marche.
[317] Second, there is the duty of loyalty owed to the other clients or former clients. In thesituation of multiple concurrent and successive representations in which Mr. Chadi placedhimself, there existed the problem that Mr. Chadi would bring knowledge that he obtained in hisrepresentation of the alleged unindicted co-conspirators in the individual prosecutions involvingthem to his representation of Caines and Knapczyk. Use of information from former or currentclients would have been a breach of Mr. Chadi’s oath of confidentiality to those clients, unlessinformed consents were given based on full disclosure. As the Court in McDonald Estate notedat para. 47, the “... lawyer cannot compartmentalize his or her mind so as to screen out what hasbeen gleaned from the client and what was acquired elsewhere.”
[318] Some of the problems presented by multiple concurrent and successive representations inconspiracy cases are illustrated in the Koker and related prosecutions in which Mr. Chadiwithdrew as counsel due to conflict either at or after the preliminary hearing, including: Koker A;the Flight and John Caines matter; and Koker C.
The Flight and John Caines Conflict
[319] Mr. Chadi went on the record for Flight and John Caines on December 1, 2006.
[320] On June 14, 2007, Anderson P.C.J. wrote to Crown and Defence counsel confirming eachof their retainers. He referred to Mr. Chadi as counsel for Caines, Knapczyk, Flight and JohnCaines. He wrote: “ Mr. Chadi has advised the Court that he has satisfied himself he is not acting
Page: 71
in a conflict of interest and has the consent of each of his four clients to act for the other”(emphasis added).
[321] On November 13, 2007, Anderson J. was conducting a case management meeting in thematters of Koker A, Koker B, and the case of R. v. John Caines and Charles Weston Flight. Heconfirmed that Mr. Chadi was representing Caines, as well as John Caines and Flight, whosepreliminary inquiry was scheduled for March 3 - 14, 2008. Three months previously, Mr. Chadihad committed to file consents regarding the multiple representations, but had not yet done so.He agreed to do so respecting the representation of the two Caines, Knapczyk, and Flight by thefollowing week. On March 4th, Anderson J. held a pre-preliminary conference in the Koker Amatter, scheduled to commence April 7th. He stated that the preliminary in the Flight and JohnCaines matter was to commence Monday, March 3 , but was put over for a week to sort out ard
conflict, and the matter might or might not be able to proceed. Anderson J. observed:
THE COURT: That is right. However, they will have to have him here tomorrowat 1:30. Okay. Here is what brought us here, as I mentioned, an issue of conflictarose about a week and a half ago in a preliminary inquiry for a different Mr.Caines -- I assume they are related. I do not know -- and a Mr. Flight, who arejointly charged with a conspiracy and some other charges, I believe. Thatpreliminary inquiry was scheduled to commence on Monday of this week, and thatcommencement date has been put over a week while the issue of conflict is sortedout. The -— and it may or may not be able to proceed. It punctuated, however, thefact that if a conflict rears its head in actuality in proceedings, particularly at theeleventh hour, it can cause cases to go sideways very quickly, and that isparticularly of concern where accused persons are in custody and particularlywhere the accused persons in custody are not the person to whom the conflictrelates, and for that reason, I wanted to address as quickly as possible mostspecifically any question of conflict that could exist in this prosecution becauseMr. Chadi acts for --
[322] On March 5th, at a continuation of that pre-preliminary conference in Koker A, Mr.Chadi stated that:
When we deal with the matters, and quite frankly I never envisioned that it couldhappen even in Flight and in Caines, but it did and obviously we're extremelycareful in how we assess this second matter...
[323] Ultimately, on March 31st, 2007, Mr. Chadi withdrew from representation of John Cainesdue to conflict. Flight, unrepresented, entered pleas on April 1, 2008.
[324] Mr. Chadi was on the record for both Caines and Knapzcyk in Koker A by February 26,2007 (and appears to have been acting for them well before that date). Part of the Crowndisclosure in Koker A included the theory that John Caines and Flight were working in the
Page: 72
Caines organization. It is alleged that Flight worked in the conspiracy, gathering funds, as well astransporting and delivering cocaine, and that John Caines worked with him, in the gathering andaccounting of money from people in the Jeffrey Caines' network. Flight is an unindictedco-conspirator in the Koker A prosecution.
[325] Anderson P.C.J. wrote that Mr. Chadi had advised he had the consent to represent Flight,John Caines, Caines and Knapczyk. No signed consents to that effect were put in evidence in thiscase. Assuming that informed consents were in place, a conflict still arose resulting in theeventual withdrawal by Mr. Chadi from representation of Flight and John Caines.
The Hoskins Conflict in Koker C
[326] The next conflict that arose was in the Hoskins matter, in the Koker C prosecution.
[327] The information, laid November 24, 2006, included allegations that Ricco King, MelissaKing, Hoskins and others conspired with Caines, Marche and persons unknown to traffic incocaine. Mr. James, counsel for the Kings, wrote to the Crown querying why the Crown had notobjected to Mr. Chadi acting for Hoskins, given his prior representation of Crown witnessesMarche and Weiss. At the preliminary inquiry on September 15, 2008, Mr. Chadi applied towithdraw. He indicated that the spectre of Caines being called by the Defense put him in anuntenable position. On September 17, 2008, Mr. Chadi’s application to withdraw was granted.
[328] The problem of conflict presented by multiple concurrent and successive representation inconspiracy cases goes beyond the witness issue as in the Marche example, and the co-accusedissue, as in the Caines and Knapczyk example. It extends to the issues that arise between allegedconspirators and alleged unindicted co-conspirators. It is a question of multiple loyalties arisingincident to the various solicitor-client relationships. Absent consent to release confidentiality bythose concerned, the confidentiality of the relationship must be maintained.
[329] In R. v. Neil, [2002] 3 S.C.R. 631 at para. 19, the court identified the following aspects ofthe duty of loyalty owed by a lawyer to his or her client: (1) the duty of confidentiality; (2) theduty to avoid conflicting interests; (3) the duty of commitment to the client's cause from the timeof retainer, “i.e. ensuring that a divided loyalty does not cause the lawyer to ‘soft peddle’ his orher defence of a client out of concern for another client;” and (4) the duty of candour with theclient on matters relevant to the retainer. At para. 27, Binnie J. discussed the British case ofBolkiah v. KPMG, [1999] 2 A.C. 222 (H.L.):
More recently in England, in a case dealing with the duties of accountants, theHouse of Lords observed that "[t]he duties of an accountant cannot be greater thanthose of a solicitor, and may be less" (p. 234) and went on to compare the dutyowed by accountants to former clients (where the concern is largely withconfidential information) and the duty owed to current clients (where the duty of
Page: 73
loyalty prevails irrespective of whether or not there is a risk of disclosure ofconfidential information). Lord Millett stated, at pp. 234-35:
My Lords, I would affirm [possession of confidential information] as thebasis of the court's jurisdiction to intervene on behalf of a former client. Itis otherwise where the court's intervention is sought by an existing client,for a fiduciary cannot act at the same time both for and against the sameclient, and his firm is in no better position. A man cannot without theconsent of both clients act for one client while his partner is acting foranother in the opposite interest. His disqualification has nothing to do withthe confidentiality of client information. It is based on the inescapableconflict of interest which is inherent in the situation. [Emphasis added inNeil.]
[330] The narrow question of whether there is impermissible conflict in a situation ofsuccessive representations in related matters where there is not necessarily adversity in thepresent and former clients’ interests is squarely dealt with in the Bolkiah case at pp. 2-3:
Where the court’s intervention is sought by a former client, however, the positionis entirely different. The Court’s jurisdiction cannot be based on any conflict ofinterest, real or perceived, for there is none. The fiduciary relationship whichsubsists between solicitor and client comes to an end with the termination of theretainer. Thereafter the solicitor has no obligation to defend and advance theinterests of his former client. The only duty to the former client which survives thetermination is a continuing duty to preserve the confidentiality of informationimparted during its subsistence. [Emphasis added.]
[331] The court in Bolkiah confirmed that it is the solicitor’s duty to preserve theconfidentiality of former clients, and that the court should intervene unless there is no risk ofdisclosure (at p. 3). The court indicated that the lawyer’s duty to the former client is not to makeany use of the confidential information, without the consent of the former client, other than forhis benefit. The former client is entitled to prevent his former lawyer from exposing him to anyavoidable risk, including the increased risk of use of the information to his prejudice arising fromthe former lawyer’s acceptance of instructions to act for another client with an adverse interest ina matter to which the information is or may be relevant. The court noted that the English test fordisqualification set out in Rakusen's case, [1912] 1 Ch. 831, has been replaced in Canada by thetwo rebuttable presumptions set out in MacDonald Estate: (1) that confidential information willhave been communicated by the former client in the course of the retainer and (2) that lawyerswho work together share confidences. The court went on to state:
It is in any case difficult to discern any justification in principle for a rule whichexposes a former client without his consent to any avoidable risk, however slight,that information which he has imparted in confidence in the course of a fiduciary
Page: 74
relationship may come into the possession of a third party and be used to hisdisadvantage. Where in addition the information in question is not onlyconfidential but also privileged, the case for a strict approach is unanswerable.Anything less fails to give effect to the policy on which legal professionalprivilege is based. It is of overriding importance for the proper administration ofjustice that a client should be able to have complete confidence that what he tellshis lawyer will remain secret. This is a matter of perception as well as substance.It is of the highest importance to the administration of justice that a solicitor orother person in possession of confidential and privileged information should notact in any way that might appear to put that information at risk of coming into thehands of someone with an adverse interest.
Many different tests have been proposed in the authorities. These include theavoidance of "an appreciable risk" or "an acceptable risk." I regard suchexpressions as unhelpful: the former because it is ambiguous, the latter because itis uninformative. I prefer simply to say that the court should intervene unless it issatisfied that there is no risk of disclosure. It goes without saying that the riskmust be a real one, and not merely fanciful or theoretical. But it need not besubstantial. This is in effect the test formulated by Lightman J. in Re a Firm ofSolicitors [1997] Ch. 1, at p. 9 (possibly derived from the judgment ofDrummond J. in Carindale Country Club Estate Pty. Ltd. v. Astill (1993) 115A.L.R. 112) and adopted by Pumfrey J. in the present case.
[332] While it is unnecessary for disposition of the issues before me to deal with the conflictsissue beyond that of Marche, the Defence led extensive evidence to show that when Mr. Chadiultimately withdrew from his representation of Caines and Knapzcyk, he was in the midst ofmultiple conflicts of which the Crown was aware, given its role of prosecuting all but theGregoire matter, which was a provincial prosecution. As there is a public policy issue raised onfacts in this case that rather dramatically illustrate the problem of conflict in conspiracy cases, Ihave taken the opportunity to discuss the conflicts issue in some depth. A more detailed analysisof the McDonald, Gregoire, Cardinal, and Berube matters is unnecessary.
[333] Counsel are correct that it is necessary for both the Defence and the Crown to carefullyconsider the complexities presented by multiple concurrent and successive representations inconspiracy cases, in the interests of avoiding delay and adjournments, but also to protect andadvance the principled goals of conflict management as set out in MacDonald Estate: (1) thevalue of maintaining the high standards of the legal profession and the integrity of our system ofjustice; (2) the countervailing value that the litigant should not be deprived of his or her choice ofcounsel without good cause; and (3) the desirability of permitting reasonable flexibility withinthe legal profession. The submissions of counsel that the common law rules against conflict ofinterest infuse the fair trial protections in s. 7 and 11(b) of the Charter is compelling. A fair trialrequires that counsel be without conflict.
Page: 75
(g) Comments on co-accused conflict issue
[334] Representing co-accused in a criminal trial does not necessarily give rise to a conflict thatrequires recusal or removal of counsel.
[335] In R. v. Graff (1993), 135 A.R. 235 (C.A.), the appellant and her daughter entered pleasof guilty to conspiracy to murder. The appellant appealed on the basis that her sentence should bevacated due to conflict of interest. The court held that the facts did not disclose a real or apparentconflict between the two accused persons. As the Crown in this case argues, different levels ofculpability are not enough to demonstrate conflict; it must be shown that interests are at odds, sothat joint representation is not possible.
[336] The Supreme Court of Canada affirmed the finding in Graff in R. v. Neil, 2002 SCC 70,[2002] 3 S.C.R. 631, in which Binnie J. wrote for a unanimous court at para. 39:
In R. v. Graff (1993), 80 C.C.C. (3d) 84, the Alberta Court of Appeal held that ina post-conviction situation, if an accused is to challenge a conviction or sentenceon appeal, he or she must show more than a possibility of conflict of interest;while actual prejudice need not be shown, the appellant must demonstrate theconflict of interest and that the conflict adversely affected the lawyer'sperformance on behalf of the appellant. See also Silvini, supra, at p. 551, perLacourcière J.A.; Widdifield, supra, at p. 173; R. v. Barbeau (1996), 110 C.C.C.(3d) 69 (Que. C.A.), at p. 81, per Rothman J.A. It is not necessary for the accusedto demonstrate actual prejudice because "[t]he right to have the assistance ofcounsel is too fundamental and absolute to allow courts to indulge in nicecalculations as to the amount of prejudice arising from its denial": Glasser v.United States, 315 U.S. 60 (1942), at p. 76.
[337] In R. v. Widdifield, (1995), 25 O.R. (3d) 161 (C.A.), the court dismissed an appeal wherea couple alleged that their joint representation had led to an unfair jury verdict. Doherty J.A., forthe court, found no evidence of a real or apparent conflict of interest, but commented at paras.23-24 and 38:
... A lawyer can render effective assistance only when that lawyer gives theaccused's cause the undivided loyalty which is a prerequisite to proper legalrepresentation. Within the limits imposed by legal and ethical constraints, thelawyer must champion the accused's cause without regard to counsel's personalinterests or the interests of anyone else... This duty of undivided loyalty not onlyserves and protects the client, but is essential to the maintenance of the overallintegrity of the justice system...
While there can be no absolute bar against the joint representation of co-accused,joint representation puts counsel's obligation of undivided loyalty to each client at
Page: 76
risk... In attempting to serve two masters, counsel may do a disservice to theinterests of one or both. Counsel who undertake the joint representation ofco-accused assume the heavy burden of ensuring that they are not placed in aposition of representing interests which are or may be in conflict: Rules ofProfessional Conduct of the Law Society of Upper Canada (1992), Rule 5. Wherecounsel fails to perform that duty and undertakes the representation of interestswhich do or may conflict, the court will order counsel removed from the record...
. . .
It is incumbent on an appellant to point to a specific instance or instances wherethe appellant's interests and those of the co-accused diverged, requiring counsel tochoose between them... That is not to say that an appellant must demonstrate thatcounsel consistently favoured the co-accused's interests. If, at any point in thecourse of the joint retainer, counsel, when faced with conflicting interests, took acourse of action which adversely impacted on the effectiveness of counsel'srepresentation of the appellant, then the appellant has established the necessaryadverse effect.
[338] The court in Widdifield at para. 33 distinguished between the functions of a trial judgeand an appellate court when faced with a conflict of interest claim, stating that where the issue israised at trial, the court must be concerned with actual conflicts of interests and potentialconflicts that may develop as the trial unfolds. In deciding whether counsel should be allowed toact for co-accused, the trial judge must speculate to a degree as to the issues which may arise inthe trial. The trial judge must proceed with caution. When there is any realistic risk of a conflictof interests, the trial judge must direct that counsel not act for one or possibly either accused.
[339] According to the authors of Ethics and Canadian Criminal Law at p. 295, any conflict ofinterest scenario that could reasonably occur at trial will be sufficient to require the removal ofcounsel.
[340] In Alberta Union of Provincial Employees v. United Nurses of Alberta, Local 168, 2009ABCA 33, 307 D.L,R. (4th) 44, the court commented at para. 30 that waivers and consents mayovercome many problems relating to conflicts of interests, but there are situations where consentis simply ineffective as matters unfold in such a way that the lawyer, due to his or her fiduciaryduties or the passage of confidential information, cannot continue to act.
[341] In R. v. Robillard (1986), 14 O.A.C. 314, 28 C.C.C. (3d) 22 (Ont. C.A.), the court, on thebasis of public interest in the fairness of the trial, removed conflicted counsel despite a waiversigned by a Crown witness who had been that counsel’s client.
[342] In R. v. Parsons, (1992), 100 Nfld. & P.E.I.R. 260,72 C.C.C. (3d) 137 ( C.A.), the courtdeclined to remove counsel in a murder case although that counsel had acted for the accused’s
Page: 77
father in a matrimonial matter. The father had signed a waiver of solicitor-client privilege. Thewaiver had been signed with full consent and no confidential information could be used by theaccused’s counsel at the trial.
[343] Waivers were signed in this case by both Caines and Knapczyk. The waivers do not dealwith the Marche conflict or the multiple concurrent and successive representation issues (exceptit is said that each of John Caines, Flight, Caines and Knapczyk consented to the representationof the others). It may be that this is a case contemplated by the Alberta Union of ProvincialEmployees decision, where consent is simply ineffective or inadequate to the job of waiving themulti-layered interests at stake.
[344] Both judges before whom this matter came in preliminary proceedings, very experiencedin criminal law matters, immediately expressed concern about whether Mr. Chadi was in aconflict position by acting for both Caines and Knapczyk, on one occasion with knowledge of theproblem pertaining to the Marche conflict. It may be they were concerned because the chargesinclude conspiracy and the accused persons, presumed to carry out different roles in the allegedconspiracy, may be at odds, or they may have been concerned because the Indictment allegesmembership in a criminal organization and the Crown’s theory alleges a hierarchical structure.
[345] These judicial inquiries are consistent with the view expressed in Ethics and CanadianCriminal Law at p. 344, that: “...in some instances the judge may have a positive obligation toinquire into the possibility of conflict, most especially where a single counsel appears formultiple clients.”
[346] It is unnecessary for me to decide whether Mr. Chadi was in a position of conflict inundertaking the representation of both Caines and Knapczyk. Mr. Chadi ultimately applied towithdraw from the record due to conflict; the Crown would say that a conflict developed by theend of the preliminary inquiry. However, it is apparent that the efforts to deal with the conflict inrepresenting Caines and Knapczyk at once fell short of the mark. As I have noted above, withthese facts before the Court, a propitious opportunity arose to consider the issues relative torepresentation of co-accused in a complicated conspiracy case.
[347] Time passed while new counsel was retained. Account must be taken of that time if itresulted in a delay in the prosecution of this matter.
(h) Responsibility for raising the conflict issue
[348] The next question is whether the responsibility to take steps to remove Mr. Chadi ascounsel fell to the Crown or whether Caines and Knapczyk bear the responsibility.
[349] The court in Con-Grain Co. at para. 20 expressed the view that there is an obligation onthe parties to raise the matter of conflict "at the earliest practicable stage," citing Neil at para. 38.
Page: 78
It commented that when there are sufficient facts at hand, the disqualification motion should bebrought on notice before the start of the trial. According to the court at para. 21:
... The law requires both parties to be vigilant in avoiding conflict issues. It is notonly the duty of the Crown to raise potential conflicts of interest. There is also aheavy onus on the defence to ensure that there is no conflict posed by jointrepresentation of co-accused: R. v. W.(W.) (1995), 100 C.C.C. (3d) 225 (Ont.C.A.).
[350] In R. v. Atkinson, (1991) 5 O.R. (3d) 301, 68 C.C.C. (3d) 109 (C.A.), aff’d [1992] 3S.C.R. 465, the court reviewed certain s. 11(b) determinations made at trial. The trial judge hadfound that the Crown was responsible for raising a conflict issue as early as possible, attributingthe resulting delay to the Crown. The Court of Appeal found that the trial judge had erred inattributing the delay to the Crown, given that defence counsel had known about the conflict forthe same period of time but had steadfastly denied the conflict while continuing to act.
[351] In R. v. Beauchamp, [2008] O.J. No. 5315 (S.C.J.) (QL), Smith J. ruled on certainperiods of delay, one of which was attributable to a hearing on conflicted counsel. In finding thatthe delay was attributable either to an inherent time requirement or to the defence, Smith J.concluded at para. 31 that the responsibility to avoid a conflict of interest rests with the lawyerinvolved and, therefore, the delay was not attributable to the Crown. The delay was regarded asneutral as against other accused persons and the Crown and allocated to the accused whosecounsel was in conflict.
[352] In R. v. Edkins, 2002 NWTSC 9, cited by counsel for Caines, the issue before Vertes J.was whether counsel for the defendant should be removed for a conflict as he had acted for aCrown witness in the past. However, Vertes J. was not determining whether delay wasattributable to the Crown. In concluding that defence counsel would have to be removed due tothe conflict, Vertes J. commented (at para. 7) that Crown counsel had a duty, as an officer of thecourt, to raise the concern about a potential conflict of interest as soon as she became aware of it.
[353] R. v. Chang, [2005] O.T.C. 899 (S.C.J.) involved a s. 11(b) application for a stay ofproceedings related to delays caused in a gang trial with multiple defendants. Chang was beingtried with two co-accused who were using the same lawyer and the Crown had waited for a yearafter the arrest to apply for the removal of defence counsel due to conflict. The Crown arguedthat the delay was caused by the inaction of Chang’s co-accused. Keenan J. granted Chang a stayof proceedings in view of the three year, nine month delay, concluding at para. 44:
There was more than the inherent time requirements of retaining and instructingcounsel after the charge has been laid in this case. There was an extraordinarydelay in resolving the status of counsel for Combden and DeFranco. There is noexplanation why the information about the potential conflict had not been given atleast orally to Mr. Sosna much earlier in the proceedings. ... There is no
Page: 79
responsibility for that delay attributable to Mr. Chang or his counsel. Theresponsibility rests with the Crown for failure to deal with the issue of conflict andrequire prompt replacement of the defence counsel.
[354] R. v. Stewart (1999), 100 O.T.C. 194 (S.C.J.), aff’d (2001), 148 O.A.C. 234 (C.A.),involved an appeal from a ruling on a s. 11(b) Charter application. Caputo J. noted that theCrown had made two applications to remove successive defence counsel by reason of a conflict.The issue was whether the applications were necessary, reasonable and meritorious. Caputo J.agreed with the trial judge that the Crown had had good reason to believe there was a conflict ofinterest in terms of the first lawyer and, therefore, that delay was considered inherent delay (atpara. 77). However, he found that the Crown should have known that the second applicationwould be unsuccessful on the basis of the first conflict finding. As a result, that period of delaywas attributable to the Crown (at para. 103).
[355] In R. v. Krisza, [2009] O.J. No. 2205 (S.C.J.) (QL), the Crown appealed a stay ofproceedings granted to the defence on the basis of a successful s. 11(b) application for delay. Onelawyer had represented all 11 defendants on charges relating to illegal hunting and animalcruelty, and eventually withdrew due to conflict. The trial judge had determined thatresponsibility for the resultant delay should be shared between the defence and the Crown.Kruzick J., on appeal, found that the trial judge had reached a reasonable compromise bysplitting the difference between the two sides. The trial judge had found that the lawyer, when hecame on the file, was acting in good faith. Kruzick J. considered that the trial judge wasreasonable in finding that the prosecution had an obligation to act to have the lawyer removedwhen that became apparent.
[356] A review of these authorities suggests the obligation to raise the conflict issue and pressfor determination is a shared obligation. The authors of Ethics and Canadian Criminal Law takethat view (at pp. 297, 343 and 344):
Counsel must be wary of representing multiple accused, and should only do soafter extremely careful consideration of the conflict-of-interest issue. By the sametoken, Crown counsel confronted with a case of multiple representation shouldmake it a practice to address conflict-of-interest concerns promptly, at least withdefence counsel if not with the court. Trial judges would also do well to makeformal inquiries whenever co-accused share a single counsel.
Defense counsel who have any real concern as to whether a disqualifying conflicthas arisen has a duty to alert the court. ... When a conflict problem arises duringthe course of an ongoing trial, this duty requires that defense counsel inform thecourt immediately.
Moreover, the Crown shares with all counsel the duty to raise conflict issues withthe court where necessary to maintain the integrity of the administration of justice.
Page: 80
The Crown should act promptly in bringing the conflict matter to the court’sattention. [R. v. Chen cited, (2001), 53 O.R. (3d) 264.]
In fact, in some instances the judge may have a positive obligation to inquire intothe possibility of a conflict, most especially where a single counsel appears formultiple clients.” [Widdifield, Robillard, cited, and R. v. Henry, (1990), 61C.C.C. (3d) 455, where the lawyer was allegedly involved in the offence.]
[357] The conflicts that arise where one counsel or firm carries out multiple concurrent andsuccessive representations in conspiracy cases may involve conflicts between accused andwitnesses, as in the Marche example; or conflicts between accused and unindicted co-conspirators, as in the John Caines and Flight example; or conflicts between two co-accused onthe same information and Indictment, as in the Caines and Knapczyk example. There may beactual conflicts in the sense of patent adversity of interests; or more subtle conflicts that arise byvirtue of the confidential information obtained in one representational capacity being used,advertently or inadvertently, but without consent, in the conduct of concurrent or subsequentretainers.
[358] It is logical to conclude that in conspiracy cases which are necessarily hierarchical innature (as this one is alleged to be), people have different roles and interests and that one lawyercannot represent many or all of them without risk of compromising the interests of some infavour of those of others. The concern is that the interests of the powerful would trump those ofthe least powerful. For example, in a set of complex interrelated cases, the cross-examinationcould be conducted to the benefit of one client while to the detriment of another, and the latter isnone the wiser.
[359] Defence counsel’s strategies cannot be permitted to sabotage the interests of justice andthe individual fair trial interests of each accused person who finds him or herself in the criminaljustice system. Nor should convenient disposition of matters where one counsel undertakesmultiple representation influence the Crown with respect to its duties.
[360] Conflict management ensures the timely and orderly conduct of criminal proceedings. Inmy view, it is necessary that these conflict issues be raised by both Crown and Defence, or by thecourt, so as to avoid delay, but also to enhance the administration of justice and the truth seekingpurpose of trials. As counsel has argued, ultimately it is a question of trial fairness.
(i) Evidence of Carol Zelant
[361] Carol Zelant, the Criminal Trial Co-ordinator for the Court of Queen’s Bench inEdmonton, gave evidence during the present voir dire. She testified that she is allowed to bookeight long trials (six days or more) per week. The usual time lag for long trials is less than threemonths. For example, as of October 13, 2010, she could schedule a long trial for January 2011. InMay 2008, the earliest time for a long trial would have been December 1, 2008. According to
Page: 81
Ms. Zelant, the time lag is the same for very long trials, defined as ones anticipated to last 25days or more.
[362] The first appearance to set dates for Koker A was on October 24, 2008. The earliest that along trial or very long trial (25 days or longer) could have been scheduled at that time wasFebruary 2, 2009. In November or December 2008, the earliest a long or very long trial couldhave been scheduled was April 6, 2009. Ms. Zelant could not say why Koker A was scheduled inOctober 2008 for November 2009.
(j) Decision on Stage 5
[363] On September 5, 2008, Mr. Chadi applied to be removed as counsel for Caines andKnapczyk. It was not until October 24, 2008 that a tentative date for commencement of the trialwas scheduled for November 2, 2009. This date was confirmed on November 28, 2008, whenMr. Juneja advised the Court that he had been retained by Knapczyk.
[364] There is no direct evidence that the delay in scheduling the trial caused by Mr. Chadi’sapplication to withdraw as counsel due to conflict resulted in any actual delay in the proceedings.All counsel estimated the trial in Koker A would take eight months to complete. When theApplicants were first arraigned on August 29 , Alcantara already had scheduled his Koker B trialth
to commence on February 2, 2009, which was less than six months away. As a result, therewould have been insufficient time to complete the Koker A trial prior to commencement of theKoker B trial without requiring that it be split over a significant period of time. The evidentiaryportion of the Koker B trial continued to June 9, 2009, past the estimated end date of May 29,2009. I agree with the Crown that, practically speaking, the trial in Koker A could not have beenscheduled to start before September 2009.
[365] However, I am prepared to infer, based on the evidence of Ms. Zelant that in 2008 a longtrial could be obtained within three to five months of arraignment, that the seven week delay inscheduling the trial in the present matter pushed the trial date back by at least that amount anddid, in fact, constitute real delay.
[366] In terms of Caines and Knapczyk, the responsibility for this seven week delay is sharedby them and the Crown.
[367] Mr. Chadi had the primary responsibility to raise the conflicts inherent in multipleconcurrent and successive representations in related proceedings of witnesses, allegedconspirators, and alleged unindicted co-conspirators. Acting as case managers, Andersen P.C.J.and Sanderman J. raised the issue, but the Court’s information is limited unless the issues areraised squarely before it.
[368] Mr. Chadi did recognize that he faced a conflict by his prior representation of animportant Crown witness, Marche, in the Koker A prosecution. More was required than
Page: 82
independent counsel for the cross examination of Marche. No procedures were employed toprotect his confidentiality interests, as in the Dix case, and no consent was obtained fromMarche.
[369] Mr. Chadi faced conflicts because of multiple concurrent and successive representation ofaccused persons who were unindicted co-conspirators in the Koker A prosecution. He shouldhave obtained Consents from these former clients (as he did with John Caines and Flight) beforerepresenting Caines and Knapczyk. The Consents signed by Caines and Knapczyk did not dealwith the other unindicted co-conspirators for whom Mr. Chadi previously had acted (although itis said they consented to concurrent representation of John Caines and Flight).
[370] Mr. Chadi then faced the potential conflicts inherent in the representation of two accusedin a complex conspiracy case. Caines and Knapczyk consented to that dual representation, but theConsents did not touch on the Marche conflict or the other alleged unindicted co-conspiratorspreviously represented by Mr. Chadi. Despite the Consents, the conflicts prevailed and Mr. Chadiwithdrew from the representation of Caines and Knapczyk prior to the scheduling of trial dates,causing an adjournment for the two Accused to obtain new counsel. Mr. Chadi is responsible forthe time that was required to obtain new counsel.
[371] The Crown, however, shares this responsibility. The Crown was in possession of all ofthe relevant facts involving Mr. Chadi’s multiple concurrent and successive representationalroles. Indeed, because the facts that underlay the charges against the unindicted co-conspiratorsalso will form part of the Crown’s case in the Koker prosecutions, I must conclude that theCrown had full knowledge of the various representations undertaken by Mr. Chadi when hebecame counsel of record in the various related matters (with the exception of Gregoire). Thesematters should have been raised by the Crown for determination by a judge long before theconflicts required Mr. Chadi to withdraw.
[372] In terms of Alcantara, the time period of September 6, 2008 to October 24, 2008 iscategorized as both “other reasons for delay” and Crown delay.
Stage 6: October 25, 2008 (day after trial date scheduled) toNovember 10, 2009 (trial to commence)
(a) Events
[373] Pre-trial motions in Koker B were scheduled from February 2, 2009 to May 29, 2009 andclosing arguments in that case did not conclude until June 9, 2009.
[374] Pre-trial conferences occurred in both cases between November 28, 2008 and January 29,2009.
Page: 83
[375] On September 14, 2009, Caines entered guilty pleas to two counts in the Indictmentbefore Gill J.
[376] A pre-trial conference was held in Koker A on October 14, 2009.
[377] The case was adjourned by agreement of all counsel on October 14, 2009 for thecommencement of pre-trial motions on November 9, 2009, when it was further adjourned toNovember 10, 2009.
(b) Arguments of the parties
[378] Alcantara and Caines submit this period of delay was due to the decision of the Crown toproceed with Koker B first. It would have been impractical to schedule the trial in the presentmatter immediately after that in Koker B due to the length of the anticipated trial and imminentsummer recess. They contend this one year delay should be attributed to the Crown.
[379] The Crown contends the period from February 2, 2009 to June 9, 2009 was due to actionsof Alcantara and should be attributed to “other reasons for delay” as concerns Knapczyk andCaines.
[380] The Crown says the period from June 9, 2009, when the evidentiary portion of Koker Bfinished, to November 2, 2009, when the Koker A trial commenced, is attributable to actions ofthe Applicants. It says that, theoretically, the Applicants were available to proceed with theKoker A trial after June 9, 2009, but Defence counsel’s schedule prevented the trial fromcommencing prior to November 2, 2009, as reflected in Mr. Lazin’s comments of November 28,2008 that: “... the dates [November 2, 2009 to June 30, 2010] that were originally set were theearliest dates that were set given all counsel’s schedules.”
[381] The Crown points out that the trial dates were scheduled on October 24, 2008, whichmeans that as of that date, the earliest date to commence the trial that Defence counsel couldaccommodate was November 2, 2009. As a result, the Koker A trial could not be broughtforward after the Koker B trial concluded due to Defence counsel’s unavailability.
(c) Decision on responsibility for delay
[382] Ms. Zelant testified that as of October 24, 2008, the earliest trial date that could beobtained for a long trial was February 2, 2009. Accordingly, in my view, the period from October25, 2008 to February 2, 2009 was one of institutional delay.
[383] As pre-trial motions in Koker B were scheduled from February 2, 2009 to May 29, 2009and closing arguments in that case did not conclude until June 9, 2009, Alcantara was notavailable for the trial of Koker A to proceed until after June 9, 2009. Given the anticipated length
Page: 84
of the trial and the imminent summer recess at the end of June, the Koker A trial could notreasonably be scheduled before September 2009.
[384] Alcantera was involved in Koker B and, therefore, not available until the trial in thatmatter concluded on June 9, 2009. As in my decision on Stage 2, I consider the period fromFebruary 3, 2009 to June 10, 2009 to be due to “other reasons for delay” as against all threeAccused.
[385] The trial could not be scheduled between June 10, 2009 and September 1, 2009 since thesummer recess intervened. This period of time is attributable to institutional delay.
[386] Due to counsels’ calenders, the first date in the fall of 2009 that the trial could proceedwas November 10, 2009. Having a trial date acceptable to all counsel’s calendars is a feature ofthe system under which defence counsel and Crown counsel provide service to their clients in anorderly fashion. It is not a question of fault; it is one of the inevitable exigencies of running acase involving experienced counsel and several Accused, each of whom have their choice ofcounsel.
[387] In R. v. Heikel (1992), 125 A.R. 298 (C.A.), an appeal of a stay of proceedings grantedbased on a s. 11(b) breach, Fraser J.A. for the majority stated at p. 9:
Steps in the trial process cannot be doled out in 4 month bite-sized chunks of timeto suit defence counsel's schedule and then be treated as part of the overall delayfor the purpose of enhancing an accused's claim under s. 11(b).
In this case, there are three ways to regard the accommodation of defencecounsels' scheduling requirements. It may be treated as a case of waiver of anyintervening time periods. Or it can be regarded as falling within the category ofactions of the accused. Or it can be attributed to delays caused by "other reasons".Neither of the first two bolsters the defendants' alleged breach of s. 11(b). And thethird should be taken into account in determining whether the delay has beenunreasonable.
[388] In Guilbride at para. 108, the British Columbia Court of Appeal held that the Crown isnot responsible for delay caused by defence counsel's calendar and that such delay should betreated as neutral in the s. 11(b) calulation.
[389] In R. v. Port Chevrolet Oldsmobile Ltd., 2009 BCCA 357, 246 C.C.C. (3d) 355,Chiasson J.A., who delivered the judgment of the court, indicated at paras. 85 and 86:
The appellants assert that this Court in R. v. Farewell, 2008 BCCA 9, 229 C.C.C.(3d) 17, used the phrase "neutral delay" as a synonym for inherent delay. I do notread the Court's comments as doing so. In para. 89 the Court stated that generally
Page: 85
delay caused by a co-accused is neutral delay "which [does] not count againsteither party in the s. 11(b) reasonableness assessment". To similar effect, inGuilbride this Court described the time required to accommodate the schedulingconflicts of defence counsel as neutral.
In my view, the phrase "neutral delay" refers to delay that is not attributable to theCrown or the accused and is not systemic or inherent; it fits under the heading"other reasons for delay" in the Morin list ... In my view, the judge did not err inher use of the phrase in this case.
[390] None of the parties here argued that the period of time from September 2, 2009 toNovember 10, 2009 was waived by the Defence. In my view, it should be regarded as “otherreasons for delay” in regard to all three Accused.
Stage 7: November 11, 2009 (day after trial to commence) toSeptember 26, 2010 (day before commencement of delay motion)
(a) Events
[391] The trial was scheduled to start on November 10, 2009 with pre-trial motions.
[392] Caines was severed from the Indictment and entered a guilty plea before Gill J. to twocounts in the Indictment.
[393] Alcantara and Knapczyk abandoned their Charter applications. Alcantara offered to pleadguilty to Count 1 in the Indictment in resolution of the case against him.
[394] Commencement of the trial was moved up to December 10, 2009. On that date, Alcantarafiled a Notice of Intention to Re-Elect. He was then arraigned, formally re-elected to be tried byjudge alone and entered a guilty plea to Count 1 (conspiracy to traffic in cocaine) in theIndictment. The Court accepted Alcantara’s guilty plea and entered a conviction on Count 1. TheCrown began its case against both accused. It made an opening statement and called evidence.The trial continued until December 17 and then was adjourned to January 20, 2010 due to theth
Court calendar and unavailability of the trial judge.
[395] On January 20, 2010, the Defence advised the Court that on January 13, 2010 it hadreceived a letter from the Crown advising of new disclosure, which revealed that monitors ofintercepted communications used a "put-away" function to record and store telephone calls forlater review while the wire authorization required live monitoring of calls.
[396] On January 25, 2010, one witness was called by the Crown. As a result of the latedisclosure, the Defence asked for time to analyze their positions.
Page: 86
[397] Caines withdrew his guilty pleas and re-joined this trial. The Defence brought a numberof consequential disclosure applications over the course of approximately five months. Alcantarabrought an application to vacate his guilty plea. Alcantara and Knapczyk brought pre-trialmotions as the late disclosure gave rise to standing and certain other arguments. The pre-trialmotions were scheduled for hearing and decision between September 1, 2010 and March 31,2011. The trial is now scheduled to commence on April 11, 2011 and to conclude on June 16,2011.
[398] The order of disclosure in this prosecution is set out in the Flavin affidavit. Disclosureproceeded from November 24, 2006 through to provision of the hard drive containingcomprehensive (full) disclosure to Caines and Knapczyk on June 1, 2007 and to Alcantara onAugust 27, 2007. It continued through 2008 and 2009. The trial commenced on November 10,2009. As stated, on January 13, 2010, the Accused were notified about the Special I put-awayissue. The disclosure letter read:
The issue in question is that some calls that were required by the terms of theauthorization to be live-monitored were not continuously listened to by themonitor throughout the call. Rather, the monitor initially listened to the call, butsometime after confirmation was made that the target was a speaker, the monitorstopped listening to the call; however, the call continued to be recorded and wasultimately listened to in its duration at a later time. This was accomplished by themonitor pressing the system’s “put away” button. Calls where this occurred willbe referred to in this letter as “set aside calls”.
At our request, the RCMP conducted an audit of all the calls intercepted in theProject Koker investigation that were subject to the live monitoring requirement.Pursuant to the request, the RCMP generated a “Session History Report” for eachof the lines that were subject to the live- monitoring provision ... . The reports areorganized by phone line and include all the calls intercepted where the monitorstopped listening to the call before the telephone call ended.
. . .
I have enclosed, as disclosure, a disk containing the Session History Reportsreferred to above.
. . .
To assist you in considering your position on this matter, I would point out that:
1. While we acknowledge that this “set aside” approach has been called intoquestion in litigation in Ontario, we do not accept that it is contrary to theterms of the authorization. ...
Page: 87
2. Even assuming for argument that this set aside approach was contrary tothe relevant wiretap orders under which this investigation was carried out,and even making the worst possible assumption about the bona fides of thepolice, we do not believe that the Issue has any realistic potential to resultin the exclusion of evidence ...
[399] A session history report is a log of all activity occurring on a particular session and anysubsequent activity. It can be generated into a report by running a program on the CenCIS IIsystem and requesting such a report.
[400] Alcantara’s application to vacate his guilty plea was dealt with between September 1,2010 and September 24, 2010, when I rendered my decision on that application (2010 ABQB616).
(b) Arguments of the Parties
[401] Caines and Alcantara argue that the time period of about eight months from January 20,2009, the date the trial before this Court was adjourned, to September 27, 2010, the date whenthe present application commenced, is a period of Crown delay that should be given even greaterweight in the overall assessment of reasonableness.
[402] The Crown submits that the 84 days from November 2, 2009 to January 25, 2010 areattributable to inherent time requirements of the case as what occurred during that time periodwere trial events.
[403] The Crown suggests that the time period from January 25, 2010 to September 1, 2010 isrightly attributed to it, although it contends the Applicants should share responsibility for thedelay. It concedes the disclosure should have been completed prior to November 2, 2009. Itmaintains that some of the further disclosure requested in relation to use of the put-away featureis of questionable relevance.
[404] The Crown notes the Defence is required to exercise due diligence in seeking disclosure.It asserts Defence counsel ought to have known the Crown inadvertently failed to discloseinformation relating to whether the intercepted private communications were live monitored andwere required to notify the Crown of the missed disclosure. It maintains this shared responsibilityfor the late disclosure significantly mitigates and reduces the weight attributable to the delay.
(c) Chronology of use of put away feature of CenCIS I and IIequipment at Special I, K Division, RCMP, Edmonton
2003 - 2008
Page: 88
[405] Putting away live monitor calls due to a shortage of manpower had been a practice priorto Project Koker, as indicated by Ms. Millar, who supervised the monitoring group from August2005 to February 2006. According to Ms. Monikowski, an intelligence monitor in those years,every monitor on every project requiring live monitoring from 2003 to June 2008 used the putaway feature as a regular tool to deal with staff shortages. Ms. Morrison, now senior electronictechnical support person with Special I in Edmonton, confirmed that the put away feature wasavailable commencing in 2003 with version 3.2 of CenCIS II (at present they are using version3.8). During the Koker investigation, Special I went from version 3.2 to 3.4 of CenCIS II.
January 5, 2005
[406] Ms. Blair, then the Supervisor of the Monitoring and Transcribing Unit, sent a memo toher staff stating that: "...[if] time permits, do not ‘put away’ calls that are identified as targets.When you do ‘put away’ a target call, please go in and check periodically to ensure that it is stillour target on the line. If time permits, please listen to the live call periodically." According to Ms.Hering, an intelligence monitor, the use of the put away feature became a topic of discussion inSpecial I, Edmonton after that memo.
January 28, 2005
[407] At a meeting attended by Ms. Hering, Ms. Blair indicated that use of the put away featurewas preferred, next to listening to the live call, and how the monitors were to use it, as it was notphysically possible to listen live to all calls due to the volume.
April 2008
[408] About April 8, 2008, Sergeant Rodrigue, in charge of the Policy Center for Interception ofCommunications with the RCMP in Ottawa, was alerted to the problem arising in an Ontariocourt case as a result of a monitor having put away calls without first ensuring the named targetwas on the line. Within Special I, there were differences of opinion with respect to whether useof the put away function constituted adherence to the authorization.
June 3 and 4, 2008
[409] At the annual meeting of RCMP and other intelligence professionals from across Canada,called the POWPM, Sergeant Rodrigue advised the Special I personnel to read their court ordersand ensure they could use the put away function and, if unsure, to talk with their affiant or Crowncounsel. Sergeant Gosselin and Ms. Millar, the monitor supervisor, attended the meeting fromEdmonton. They were advised to stop using the function on live monitored calls, a change inpolicy that was implemented immediately. Ms. Millar's normal practice was to return and debriefthe staff on practices that were to be adopted. Monitors were told there was some legal concernabout whether use of the put away feature was in compliance with wiretap authorizations.
Page: 89
June 19, 2008
[410] Sergeant Rodrigue took steps to determine the extent of the use of the put away feature.She sent an e-mail to Sergeant Gosselin in Edmonton, as well as other managers of Special Iunits across Canada, asking for a list of outstanding projects affected by the use of the put awayfeature; whether monitors had put away calls without ensuring the targets were on the line; andwhether any of those projects were before the courts then or would be in the near future.
June 27, 2008
[411] Sergeant Rodrigue sent an e-mail to NCOs and intercept monitor supervisors acrossCanada and management, requesting that intercept monitor supervisors and project roomcoordinators review their judicial order and "...adhere precisely to the live monitoring clausesordered... ." If there were any doubts about how to handle the live monitoring clauses, theyshould "...immediately contact their affiant or Crown assigned to the case." The e-mail alsodirected that the affiant or Crown be made aware if they were still using the put away callfunctionality. This was forwarded to Ms. Hering and other intelligence monitors in the Edmontonoffice.
July 3, 2008
[412] Sergeant Rodrigue received a reply from Ms. Millar through Sergeant Gosselin: "Wehave put away calls on every file with live lines since we got VB [voice box] in 2003." Itcontinued: "The following are the cases currently ‘active’ (i.e. in disclosure, awaiting court) thatcould be affected:...E7..., Koker - Edmonton Drugs."
[413] Sergeant Rodrigue sent a further e-mail to Sergeant Gosselin asking whether he had had achance to talk about this with one of the Crown. She stated in the e-mail that she asked thequestions to make sure that Department of Justice would be involved. She could not recall if shewas advised by Sergeant Gosselin whether he had discussions about this with the Crown.
November 3, 2008
[414] Sergeant Rodrigue sent an e-mail to Ms. Millar referencing the e-mail from Lynn Fedor,which was intended to ensure all officers in command, NCOs and intercept monitors wereadhering precisely to the live monitoring clauses. Also, in November, Ms. Morrison in technicalsupport became aware of the put away issue.
November 16, 2008
[415] Sergeant Rodrigue sent an e-mail to Special I NCOS, officers in command and RCMPmembers who were wireroom supervisors requesting that intercept monitors review their specificjudicial orders and adhere precisely to live monitoring clauses. She wrote: "If you have any
Page: 90
doubts on how to handle the ‘live Monitoring’ clauses related to each project, immediatelycontact your Affiant or the Crown assigned to the project. Make sure they ‘fully’ understand howthe ‘put away’ functionality works."
[416] At that time, she was waiting for a court resolution of the issue. The e-mail was redflagged “high priority.” Halifax was then using the specially drafted clause allowing use of thefunction.
[417] Sergeant Rodrigue sent e-mail on November 16, 2008 to others, including SergeantGosselin, stating that unless specifically authorized by the judge to continue recording a namedperson on a live monitoring line when they were not listening to the call, the put away functionwas not to be used.
January 2009
[418] Ms. Morrison believes she tested the system for a dual monitor capability at this time, asher records indicate they had a case involving live monitor conditions.
January 5, 2010
[419] Assistant Commissioner Doug Lang issued an order to all the intercept monitorsupervisors (and possibly NCOs) not to use the put away function. Current RCMP policy is thatthe authorization must permit the recording of live conversation without listening.
Later in 2010
[420] At some point in 2010, in the months leading up to Sergeant Gosselin's retirement,Special I, Edmonton started reviewing all past cases to see if the put away feature had been usedon live monitored calls.
(d) When use of the put away feature should have beendisclosed
[421] From 2003 through 2008, the put away function was used at Special I in Edmonton topark calls and record them, even though the authorization called for live monitoring. The Blairmemo of 2005 asked that the monitors check periodically to ensure the target was on the line.
[422] In April 2008, Sergeant Rodrigue of the Policy Center for Interception ofCommunications became aware of legal concerns arising in an Ontario case from use of the putaway feature in the face of a live monitor clause in the wire authorization. She looked into theproblem and raised it at the national conference, the POWPM, in June 2008, where intelligencepersonnel discussed it and resolved that the put away feature should not be used. SergeantRodrigue sent e-mails across the country in June, July and November of 2008 emphasizing that
Page: 91
authorizations be strictly observed and advising that the affiant or Crown be called if there wasdoubt respecting the live monitor clause.
[423] Sergeant Gosselin, Ms. Millar (the monitor supervisor) and the monitors in EdmontonSpecial I were aware from and after June 2008 that the put away function should not be used asthere was a concern its use would not be in compliance with live monitor clauses in wireauthorizations. On July 3, 2008, Ms. Millar responded to the Rodrigue inquiries, stating: “Thefollowing are the cases currently ‘active’ (i.e. in disclosure, awaiting court) that could beaffected:...E7..., Koker-Edmonton Drugs.”
[424] I conclude that Edmonton Special I RCMP members knew about use of the put awayfeature in Koker A at least by July 3, 2008. Allowing a reasonable time for the RCMP to consultwith the Crown and for the Crown to respond, I find that this information should have beendisclosed to the Defence by the end of August 2008.
[425] There is no evidence that the Public Prosecution Services of Canada (PPSC) in Edmontonknew of the put away issue before December 2009, when Crown counsel in the prosecution ofKoker A were notified. Defence counsel were notified on January 13, 2010.
[426] However, the law is clear that a failure to disclose by the police is failure to disclose bythe Crown. In R. v. T. (L.A.) (1993), 14 O.R. (3d) 378 at para. 9 (C.A.), Lacourcière J.A statedfor the court that: “... the Crown has a duty to obtain from the police - and the police have acorresponding duty to provide for the Crown - all relevant information and material concerningthe case.” In R. v. R.P.S., 2010 ABQB 418 at para. 35, Thomas J. wrote:
In addition to the content and the timing of disclosure, there is also the question ofwho is required to disclose relevant information to the defence. Although the dutyis often attributed to the Crown only, the Supreme Court of Canada held in the R.v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 (“McNeil”) case at para. 52 that thepolice have a “corollary duty to disclose to the prosecuting Crown all materialpertaining to the investigation of an accused.” This duty arises from the uniquerole of the police in investigating crime. Especially pertinent to this case is theprinciple from McNeil that the Crown may not hide behind the fact that the policefailed to disclose information to the Crown. As the majority in McNeil held atpara. 24:
It is now widely acknowledged that the Crown cannot explain a failure todisclose relevant material on the basis that the investigating police forcefailed to disclose it to the Crown.
(e) The due diligence argument: the Applicants’responsibility for late disclosure
Page: 92
[427] As noted, the Crown suggests that the time period from January 25, 2010 toSeptember 10, 2010 (i.e. 227 days or roughly seven months and three weeks) is rightly attributedto it, although it contends the Applicants should share responsibility for the delay. The Crownargument is that Defence was aware the authorizations affecting Caines contained live monitorprovisions, and had counsel exercised due diligence they would have requested data showingwhether the lines had been live monitored.
[428] The Crown contends that the Defence was aware from the case law, including R. v.Thompson, [1990] 2 S.C.R. 1111, that failure to observe monitor conditions in a wireauthorization may amount to a Charter breach and lead to exclusion of the evidence. In ProjectKoker, authorization 1709 contained live monitor conditions. Ensuring compliance with wireauthorization conditions is a key to making full answer and defense. To test compliance, theremust be live monitor data, and counsel ought to have known to request it. The InstallationReports were provided in disclosure by Ms. Morrison, containing information regardingconfiguration of lines. The Intercept Monitoring Instructions refer to live monitoring. In theCrown’s view, this information, cumulatively, should have triggered the request for the data.There should have been an inquiry by the Defence into the reasonableness of the search that wasconducted. In short, the Crown argues that this is a situation where all parties missed thedisclosure.
[429] The Defence disputes that it failed to exercise due diligence. It entered a list of 18Defence counsel who have been involved in the Koker A, B, and C prosecutions, including someof the most senior defence counsel in Alberta, and many of whom are experienced in defendingaccused persons in drug prosecutions involving wiretaps. Ms. Flavin confirmed that no Defencecounsel sought disclosure of the session history reports or other data that would demonstrateobservance of live monitor conditions in wire authorizations. Indeed, Crown counsel in this casedid not seek disclosure of the session history reports, although he too is well seasoned in thesematters.
[430] In January 2010, Ms. Morrison, the senior technical support person in Special I, providedsession history reports for disclosure to counsel on Koker A. Up until that time, herunderstanding had been that such reports were intended as a technical aid, an internal verificationof data, rather than being a disclosure issue. It appears that she (and Special I) did not make theconnection between live monitor conditions and the discloseable nature of data tracking theimplementation of such conditions. She could not recall having had a conversation with anyoneinvolved in Project Koker between 2005 and 2009 advising that the CenSIS II system couldproduce session history reports.
[431] Clearly, the Defence must be an active participant in the disclosure process and mustexercise due diligence in performing that role. As Cory J. stated in R. v. Dixon, [1998] 1 S.C.R.244 at para. 37: “[w]hen counsel becomes or ought to become aware, from other relevantmaterial produced by the Crown, of a failure to disclose further material, counsel must notremain passive. Rather, they must diligently pursue disclosure diligently.”
Page: 93
[432] In my decision in a previous voir dire in this case (2010 ABQB 646), I reviewed (at paras.23-34) arguments made by the Crown concerning Defence responsibility for requestingdisclosure of session history reports or data showing whether lines were in fact live monitored.The Crown argued that the Dixon principle applies to knowledge that defence counsel has ofinformation in wiretap cases generally, and to specific knowledge that a particular counsel hasbecause of his or her role in a previous wiretap case. At paras. 30 and 34, I stated:
In my view, however, whether or not counsel knew or ought to have known torequest particular disclosure must be decided on the basis of counsel's knowledgeas proven by the Crown and not simply on the basis that defence counsel isexperienced in wiretap cases.
. . .
The Dixon case refers to circumstances where counsel becomes aware or ought tobecome aware "from other relevant material produced by the Crown" or "on thebasis of other disclosures" that the Crown has failed to disclose further material.In those circumstances, counsel is obliged to diligently pursue that disclosure. Iwill assume for the purposes of this application, without deciding the issue, thatthe Dixon principle also extends to knowledge that the defence has acquired otherthan from the disclosure already provided in the case before the court or from hisknowledge of that case.
[433] The Crown established in that voir dire that in October of 2006, counsel for Mr.Alcantara, in his role as defence counsel in Project Imminent, received disclosure of sessionhistory reports identifying live monitoring data. However, I found (at para. 38) that those sessionhistory reports did not reveal the use of the "put away" function in the face of a live monitorcondition. As a result, counsel for Mr. Alcantara was not shown to have had knowledge of theput away feature. I concluded (at para. 39) that it had not been proved that counsel for Mr.Alcantara ought to have known that he should request disclosure of the session history reports inthe context of this case. In fact, I noted that it had not been established that any counsel in thiscase was aware of the use of the "put away" function until the late disclosure of that fact by theR.C.M.P. in January 2010.
[434] For purposes of the present motion, the Edmonton Office of the PPSC does not allegethat it ever provided session history reports to Mr. Lazin on any file prior to January 14, 2010 orto Mr. Juneja prior to January 13, 2010.
[435] I cannot find that Defence counsel in this case failed to exercise due diligence becausethey did not request data which would show whether or not the live monitor clauses had beenobserved.
Page: 94
[436] First, as noted above, there was a large amount of disclosure in this case.
[437] Second, while the question of compliance with wire authorizations has been in play sincethe Thompson case was decided in 1990, there is no evidence that the narrow refined technicalfunction of putting away calls was known to anyone other than Special I personnel until the issuearose in a court case in Ontario in April of 2008. It was more than a year and one half later thatthe Crown assigned to Koker A became aware of the use of the functionality.
[438] Third, I find that Ms. Morrison, as a technical support person, did not perceive the linkbetween live monitor conditions and the session history reports that track implementation ofthose conditions. As a result, the data reports were not viewed as documents required to bedisclosed by Special I. Crown counsel did not seek data (session history reports) confirming therewas compliance with the live monitor conditions. Neither did any of the experienced counselwho have appeared over time representing the accused in the three Koker prosecutions.
[439] I cannot find lack of due diligence on the part of Defence counsel in failing to requestdata to confirm live monitoring occurred, since there is no evidence that they were aware of theput way feature or that session history reports might reveal use of this feature.
(f) Decision on Stage 7
[440] I have determined that disclosure of use of the put away feature in Koker A should havebeen made by the end of August 2008, after Special I Edmonton became aware of the issue andhad an opportunity to consult with PPSC in Edmonton about it.
[441] I infer from the fact that Caines sought to vacate his guilty plea and rejoin this trial,Alcantara applied to vacate his guilty plea, and the Applicants all renewed their various Charternotices once disclosure was made of use of the put away feature in Koker A, that had suchdisclosure been made in a timely fashion, Caines would not have entered the guilty plea on twocounts in the Indictment, Alcantara and Knapczyk would not have abandoned their Charterapplications, Alcantara would not have re-elected to be tried by judge alone and he would nothave entered a guilty plea to Count 1in the Indictment. (Indeed, I ruled previously in the decisionpermitting Alcantara to withdraw his guilty plea that these steps would not have been taken in thefirst place.) Contrary to the Crown’s view that these were “trial” activities and that the time fromNovember 11, 2009 to December 10, 2009 should be counted as a period of inherent delay, I amof the view that this period of delay is attributable to the Crown.
[442] The trial commenced on December 10, 2009 and continued through to December 17,2009. One witness also testified on January 25, 2010. While it is possible that the witnesseswhose testimony was heard, or some of them, may have to be recalled in order to allow cross-examination by Caines, he agreed in rejoining the trial to limit the need for that. Accordingly, Iam prepared to find that at least the period from December 11, 2009 to December 17, 2009 wasone of inherent delay.
Page: 95
[443] On December 17 , the trial was adjourned to January 20 due to the Christmas break andth th
the Court’s unavailability. The time period December 18, 2009 to January 20, 2010 is one ofinstitutional delay and/or is attributable to “other reasons for delay.”
[444] On January 20, 2010, the Court was advised of the late disclosure of the use of the putaway feature. On January 25 , the Defence asked for time to consider its position. Over the nextth
five months, the Applicants brought a series of consequential disclosure applications that werelargely successful (although some were unopposed by the Crown in the interest of efficiency).While the time taken by those applications can be considered inherent delay, if the Defence hadreceived timely disclosure from the Crown of use of the put away feature, those applicationslikely would have been made from September 2008 through to the end of January 2009, during aperiod of delay caused by the withdrawal of Mr. Chadi due to conflict and a period ofinstitutional delay, both of which I consider to be overriding causes of delay. These motions foradditional disclosure would have been brought in the ordinary course in criminal motions court.
[445] The application to vacate Alcantara’s guilty plea commenced September 1, 2010 andresulted in a decision on September 24 (2010 ABQB 616).th
[446] An issue about Mr. Juneja facing investigation by the Law Society of Alberta arose onSeptember 14 . Mr. Juneja was granted permission by the Law Society of Alberta to continue toth
represent Knapczyk to the conclusion of the delay motion. I affirmed that conclusion by adecision filed September 24, 2010 (2010 ABQB 612). Having received independent legal advice,it was Mr. Knapczyk’s wish to have Mr. Juneja continue to represent him. As the records show, Ihave no doubt that Mr. Knapczyk proceeded with Mr. Juneja with his eyes wide open. Mr. Junejaparticipated in the trial, adopting the arguments of his co-counsel where appropriate, andotherwise presenting evidence and arguments as suited his client’s interests. Mr. Knapczykabsented himself from the proceedings for the most part.
[447] While the time taken to deal with this issue might be attributed to “other reasons fordelay” with respect to all of the Applicants, the overriding cause of delay up to September 24th
was Alcantara’s application to vacate his guilty plea, which in turn was attributable to the Crown.
[448] In my view, the period from January 21, 2010 to September 26, 2010 is attributable tolate disclosure of the use of the put away feature and is the responsibility of the Crown.
Stage 8: September 27, 2010 (commencement of delay motion)to June 16, 2011 (anticipated end of trial)
(a) Events
Page: 96
[449] Evidence on the delay motion was entered and the application was argued fromSeptember 27, 2010 until December 16, 2010.
[450] The Applicants have filed other applications which are scheduled for the period up toMarch 31, 2011, including a Garofoli application (Motion #4); a Charter search and seizuremotion (Motion #5) and a Charter abuse of process motion (Motion #6).
[451] The trial proper is scheduled to commence on April 11, 2011 and end on June 16, 2011.
(b) Arguments of the Parties
[452] The Crown argues that the time period from September 28, 2010 to April 11, 2011(anticipated start of trial) should be attributed to the actions of the Applicants. That time periodhas been set aside to conduct a number of pre-trial motions brought by them. The Crown assertsthese are actions of the Applicants and should weigh against them, citing Morin at paras. 44- 45.
[453] The Crown concedes the eight day period from January 5, 2011 to January 13, 2011 isproperly attributed to it as the prosecutor was not available to proceed with the pre-trial motionsduring that time period.
[454] The Crown submits the time period from April 12, 2011 to June 16, 2011, when the trialproper is anticipated to end, is part of the inherent time requirements of the case.
(c) Decision on Stage 8
[455] The pre-trial motions originally were scheduled to commence November 2, 2009 and tocontinue for four months. Instead, they began on September 27, 2010 and are set to continue untilat least March 31, 2011. These are voluntary actions of the Applicants and, according to Morin atparas. 44-45, must be weighed against them. In Conway, L'Heureux-Dubé J. stated for themajority at para. 45 that in an assessment of reasonableness under 11(b) of the Charter, theCrown and the accused must bear the consequences of any tactical decisions which they havemade in the conduct of the trial.
[456] I regard the period from April 1, 2011 to April 10, 2011, when all counsel will bepreparing for trial, to be part of the inherent time requirements of the matter, as is the period fromApril 11, 2011 to June 16, 2011 for conduct of the trial itself.
D. Prejudice to the Applicants
[457] The Crown acknowledges that based on the overall length of the delay, the Court couldinfer prejudice to all of the Applicants. However, it asserts that minimal prejudice resulted fromthe delay caused by the late disclosure.
Page: 97
[458] Each of the Applicants provided affidavit evidence as to the prejudice they allege wascaused by the delay of these proceedings.
1. Mark Jeffery Caines
(a) Evidence and arguments of Caines
[459] Caines swore an affidavit on September 13, 2010 and a supplementary affidavit onNovember 22, 2010. Caines was born in Corner Brook, Newfoundland on June 24, 1973.According to his earlier affidavit, he used to have a perfect life. From 2001 on, he was in acommon law marriage with his best friend and they co-parented a child for the first three andone-half years of her life.
[460] Caines turned himself in to the police on December 5, 2006. Except for a period of aboutthree weeks, he has been in custody at the ERC or Drumheller Correctional Facility since thattime.
[461] Caines described his introduction to life in the ERC as traumatic. He was confined onarrest in close, crowded quarters where there was blood and vomit, there was tension, isolationand fear. He was strip-searched and placed on the “gang unit” with a member of the Warriors, anative gang, whose rules Caines agreed to follow. The first night, he began to doubt his ownsanity. The next morning, he witnessed a violent assault in the food line and was splattered withblood, although the guards did not intervene.
[462] Caines deposed that, while living on this unit, he was locked up for 23 hours a day andallowed out only four times a day, for 15 minutes each time, to use the shower or phone. Hecould only read, although it was difficult to concentrate. Open visits with his wife and daughterwere not permitted.
[463] Caines attested to the impact on his health: he could not exercise; he gained weight and,due to his size, the thin mattress did not support him, so he suffered neck and back pain, as wellas sleeplessness.
[464] Caines described the night of March 12, 2007, when the cell doors on the unit wereunlocked by mistake. The prisoners left their cells, covered with blankets and sheets, and a riotensued, resulting in damage to fixtures, fire, and violence to the extent that one prisoner mayhave died from these events. The riot was quelled by the guards in full riot gear using tear gas.He was semi-conscious after the tear gas was sprayed and contends that he was violentlyassaulted to a state of unconsciousness by a riot guard, although he had remained in his cell andhad not been a participant in the riot as he was in fear of the Native gangs.
[465] Caines deposed that he awoke in a holding cell amidst blood and vomit, was tied with hishands and feet shackled behind him for 24 hours, while in excruciating pain with no medical
Page: 98
assistance. The remnants of the scent of tear gas remained in his cell and there was no cleanbedding or clothing provided. Life in the ERC became intolerable after the riot: residue from thefire and the pepper spray on the unit caused physical discomfort, hand sets from the phones werenot replaced for four weeks, and televisions were smashed. His depression deepened. His life onthe outside was disintegrating and his wife was destitute.
[466] Caines deposed that about four months after incarceration, he witnessed three gangmembers stabbing an inmate who ran behind him for protection, causing him to fear for his ownsafety, to be depressed and to withdraw from his family.
[467] After he had been incarcerated for seven months, the inmates flooded the unit with waterto protest the conditions. Caines said that due to the resulting mould, he developed skinconditions and other ailments requiring frequent medical attention. He suffered fromsleeplessness, as well as foot and back pain because he could not get prescription footwear for hisflat feet.
[468] Caines deposed that his lawyer stopped visiting him, contributing further to hisdepression and irrationality. He was in the ERC for a year before a bail application was made on November 16, 2007. Over Crown objections, he was granted bail on January 23, 2008. The bailconditions required cash and sureties in the sum of $1,000,000.00. When the conditions for bailhad been met, the Crown reactivated a charge that had been stayed, and as he was being released,he was “gated.” He was released on those other charges on January 31, 2008.
[469] The order for judicial interim release was in force until it was revoked on February 22,2008, as a result of a successful Crown review. Returning to the ERC, Caines says that hebecame further depressed and had suicidal thoughts. He was incarcerated in another gang unitthat was worse than the first, with more fights and stabbings resulting in more lock downs, sothat privileges, such as phones and showers, were sometimes removed for days.
[470] After 16 months in the ERC, Caines attests that he was taken to the “segregation unit”and placed on “administrative segregation” or in “the hole.” There had been a fight among gangmembers at the Edmonton Maximum Security Institution and there was fear that this violencewould spill over to the ERC. He was taken to the segregation unit for his own protection.
[471] In September 2008, Caines was taken to Fort McMurray, where he was tried on a chargethat arose in 2001. On October 1, 2008, he was sentenced to four years in custody and transferredto Drumheller Institution, where he was given the unit representative job. His parole release datewas June 2, 2010, but he could not be paroled due to the present charges.
[472] In about the spring of 2009, Caines’ wife left him. He deposed that his depressioncontinued. Once his sentence was served, he was transferred back to the ERC while shackled andhandcuffed, without seat belts in the transport vehicle. On arrival, he was locked in a “dry cell”
Page: 99
(without a toilet) in case he had drugs, and then returned to the gang unit. On March 28, 2010, hesought bail. The Crown opposed the application and it was denied.
[473] Caines stated in his September affidavit that his daughter was then seven years old. Hedeposed that his mind had been affected by his 45 months in custody and that he had paid$300,000.00 in legal fees.
[474] In his November 2010 affidavit, Caines attested to events that occurred around the timethese issues were being canvassed in Court. He said that on November 13 , two guards came toth
his cell and strip searched him. He said they found nothing. He was then taken to be searched bythe drug dog. After the dog handler touched Caines’ leg, the dog sat, which it does if it smellssomething. He deposed that he was told the direction from the “DDO” was that he be takendirectly to a “dry cell.” He was advised that contraband had been found in his cell. He claimedthat his roommate, the leader of the Red Alert, had hidden tobacco in a peanut butter sandwichand the roommate was going to take responsibility for the tobacco. Caines deposed that he wasthen strip searched again but still nothing was found. It was his impression that his treatment wasthe result of his previously having brought to the Court’s attention what conditions he had beensubjected to at the ERC. Caines deposed that while he was in the dry cell, he was not allowed tocontact his lawyer for about eight hours and was not allowed to go to the washroom. Accordingto him, it was out of desperation that he contrived a story that he had swallowed drugs, hopingthat he would be sent to the hospital where he could go to the washroom. He was dry celled thenext day and not allowed to call his lawyer for hours.
[475] Caines deposed that on November 18 , his cell was the subject of a targeted search whileth
he was in court. He said that he had spilled protein powder on his desk. He was told thesubstance was suspected of being heroin, although analysis produced a negative result.
[476] On the Friday, after court ended, he had Warden’s Court with respect to the tobaccoincident. His roommate did not take responsibility for the tobacco so Caines was punished by aloss of privileges. He argued with his roommate. Caines said that he was then attacked by anumber of members of the Red Alert and he received numerous injuries. He said the guardscharged both him and his roommate with infractions and he was put into administrativesegregation.
[477] Caines testified that the September affidavit represented his version of his experience atthe ERC. He agreed with Crown counsel that while he was sometimes locked up for 23 hours aday, at other times he was locked up for 18 hours a day or was out of his cell for most of the daywhen working as a cleaner. The cleaner job was a reward for good behaviour. This depended onthe rotation and that, in turn, was dictated by the behaviour of the inmates. He clarified that whenhe was first brought to the ERC, he was on quite a violent unit where the prisoners were lockedup from 18 to 23 hours a day. He agreed that what he described in his affidavit was the worstcase scenario.
Page: 100
[478] Caines said that he lost his cleaner’s job when he was sent to Fort Saskatchewan (on July27, 2007). When he returned to the ERC (around November 5, 2007), he was placed on adifferent unit where there were a lot of long-term inmates who occupied the cleaner job. He did ayear on 4B when he was not a cleaner and then was transferred to Drumheller, where he served a30-month sentence. When he went back to the ERC, he was not a cleaner from June to August2010. In the last few months, he has gotten the job.
[479] Caines said that on July 25, 2008, when he was told that he would be a cleaner, there wasan incident on the unit which led to a lockdown. He was moved to segregation for a couple ofmonths for threatening to “shit bomb” the staff on 4B. He was charged and convicted of that onappeal. He explained that the charge arose after the lockdown when the guards were controllingthe toilets and would not allow the prisoners on the unit to flush them for two days.
[480] The Crown suggested to Caines that the impression he was trying to convey in hisaffidavits was that he was scared and intimidated while in the ERC. Caines said that indeed hewas afraid and intimidated. However, he admitted in cross-examination that he was never pushedaround by any Alberta Warrior members and that he often was a cleaner and not locked up.
[481] Caines agreed that he had more freedom for the four to five months in 2007 when he wasat Fort Saskatchewan. His file indicated he was returned to the ERC as staff at FortSaskatchewan felt he seemed to think he was running the unit, was too comfortable there and wasdemanding. Caines explained that the inmates at the Fort were in the 18 to 22 year old age rangewhile he was closer to 40, the unit representative, and he just tried to do his best.
[482] As to the injuries he alleged resulted from the guards’ action after the March 12, 2007,riot, he agreed he did not ask for treatment for his injuries, which he claimed were bruises and abloody nose.
[483] Caines acknowledged that he attempted in his affidavits to portray himself as an inmatewho did not cause disturbances or difficulties with other inmates or with the guards. He said hewas a fairly well-behaved inmate most of the time, but agreed to having to be reminded onoccasion to wear his coveralls rather than sweatpants and a t-shirt; to having been in a verbalaltercation with another inmate; to having been convicted of failing to give a required urinesample because the request was made at 7:00 a.m.; and to being rude to a guards on occasion aswell. He admitted to having marijuana in his system on one occasion when he was asked for aurine sample. In addition, he agreed that the drug dog signaled that there was a drug on his deskon November 18, 2010 and a quick “nic test” indicated it was heroine, although it proved not tobe.
[484] Christopher Ryan Flamant is a serving prisoner at the Drumheller Institution. Flamantwas at the ERC on Unit 4C where he shared a cell with Caines as a cleaner. He described the unitas violent, stressful, tense, and scary at times; a place where he witnessed about three fights aweek and saw homemade weapons on two occasions. At that time, Unit 4C included inmates
Page: 101
belonging to three groups: the White Aryan Resistance (WAR); the Red Alert; and the Warriors.These groups were unfriendly towards each other so that the members were kept separate whenout on rotation.
[485] Flamant was living with Caines when the door mechanisms failed and the riot ensued.Inmates covered their heads with shirts, saran wrap, pillow cases, to hide their identity. A firewas started on one of the benches, lasting about one-half hour, and the smoke made breathingdifficult. Blankets were burned, causing more smoke. One inmate was walking around with twopipes in his hands, either because of fear or aggression. Items such as garbage cans were flyingaround the unit. The observation windows to the guards’ station were obscured by newspapers.
[486] According to Flamant, Mr. Caines was not masked but rather was asking people to lockup, although they did not listen. What he believed to be tear gas was unbearable, hard on theeyes, hard for breathing. Flamant stuffed blankets under the cell doors and over his head toprevent the gas from entering his mouth and eyes. The inmates flushed the toilets to bring freshair into the cell. Eventually, the guards in swat uniforms and riot gear quelled the riot. Theinmates were removed to a dry cell, a concrete empty cell, where they remained for 24 hours.According to Flamant, Caines was in his cell or watching from the walkway, and as far as heremembered, Caines did not go downstairs.
[487] Stephan Vollrath is a serving prisoner. He is 27 years of age and has spent about nine orten years on remand. He testified that he was housed on unit 4B at the time of his testimony, agang unit. He acknowledged being a member of the Red Alert. Mr. Vollrath says that he hasspent his whole life in jail. The choices there are to suck it up or flip out and go to the hole. Heattested to violence on the gang unit, stabbings, beatings, any kind of violence. He said that hehas seen blades, shanks, people crawling to the bubble covered in blood, and that most peoplethere are gang members. In his view, Unit 4B is the hardest.
[488] Leonard Goueffic has been the Director in charge of Programs and Services at the ERCsince March 2009, after a lengthy career at the Fort Saskatchewan Correctional Center. He gaveextensive evidence about the physical layout at the ERC and the routines in place.
[489] Mr. Goueffic’s evidence about Units 4A-D did not materially differ from that of theinmates, except that he tended to report less time where inmates are confined to cells. He saidthat inmates of the same gang stripe are housed together, as well as some with no gangaffiliation.
[490] Unit 4B has a capacity of 48 inmates. More often than not, there is a top/bottom rotationso that one half of each unit is out of their cell at any given time. A top/bottom rotation means atwelve-cell rotation or 24 inmates out at one time (rotation of the top tier, then bottom tier, andso on). A six-cell rotation means at least 12 inmates out at one time.
Page: 102
[491] When there is an assault, drugs or other disruption, the rotations increase. If the unit goesto a four-group rotation, the amount of time for one inmate out of the cell is one hour. The onehour is available for a shower, for watching tv in the common area, for accessing books, fortelephone calls, and visits to the gym only every third or fourth day.
[492] Mr. Goeuffic acknowledged that there are more serious fights and more weapons on the4 floor, and more assaults by weapon on the 4 floor. Unit 6D is for administrative segregation,th th
and sometimes overflows to Unit 5D. Inmates are placed on administrative segregation for theirown protection or because of deteriorating behaviour or while awaiting hearing of disciplinarycharges. Unit 5D is disciplinary segregation, “the hole,” where inmates are on 23 hour lock up forup to 14 days.
[493] Mr. Goeuffic confirmed that Caines was not an active participant in the riot that occurredon Unit 4C. The airborne irritant distributed during the riot on March 12, 2007 was pepper sprayreleased in a gaseous form. He saw nothing to indicate the clean up or removal of the materiallater.
[494] According to Mr. Goeuffic, Units 4B and 4C are maximum security units. For long termremand inmates like Caines, there is little suitable programming, except for some specializedprograms pertaining to addictions, domestic violence, and some distance learning facilitatedthrough Norquest College, although course work is not easy in such small living quarters.
[495] Mr. Goeuffic confirmed that Caines was “dry celled” on three occasions when transferredfrom Drumheller to ERC for this trial, but no contraband was found. Dry celling is a process ofplacing inmates in isolation for three bowel movements or three days if they are thought to be“packing” drugs. He had not seen any history from any source indicating that Caines had been inpossession of any narcotics while in an institution, although there was an instance of refusing toprovide a urine sample. [496] In addition to the prejudice to this liberty and security interests, Caines submits that latedisclosure of the put-away feature impaired the ability of the Defence to assess the case to bemet. He contends that the critical decisions which he made prior to the disclosure are examplesof actual prejudice to his right to make full answer and defence.
(b) Arguments of the Crown
[497] The Crown acknowledges that based on the overall length of delay in this case, the Courtcan infer prejudice to Caines. It admits the delay has affected his liberty interest. He is currentlydenied judicial interim release in the Koker A prosecution and has been throughout theproceedings other than for a three week period in 2008. However, the Crown notes that Caineswas a serving prisoner between October 1, 2008 and June 2, 2010 on an unrelated matter.Further, he received credit for a period of pre-trial custody in that case, which was used to reducehis four year sentence. Therefore, the Crown argues the applicable prejudice to Caines arises
Page: 103
from the fact he will be required to experience an extra seven and one-half months of pre-trialcustody due to the delay caused by the late disclosure.
[498] The Crown argues the disclosure delay will have only a minimal effect on Caines’security interest. It notes his main complaints are associated with his incarceration prior to June2, 2010. Also, a majority of his past incarceration is attributable to his sentence in unrelatedproceedings. The Crown asserts that Caines has not suffered any prejudice in terms of trialfairness due to the late disclosure. His guilty plea has been vacated and he has been returned tothe same position he was in prior to the delay.
(c) Decision on prejudice to Caines
[499] The chronology of Caines’ incarceration is:
December 5, 2006 Date Caines turned himself in to the police and wasarrested.
December 7, 2007 Judicial interim release granted ($61,250.00 cash,$1,000,000.00 in securities).
January 31, 2008 Released from custody.
February 22, 2008 Judicial interim release vacated after a Court of Queen’sBench review of the grounds of his original release.
October 1, 2008 Sentenced on other matters (served at the DrumhellerInstitution, except for Court appearances when he wastransported to the ERC).
May 31, 2010 Released on parole to ERC.
June 16, 2011 End of trial.
Total Time in Custody: From and including December 5, 2006, to and includingJanuary 31, 2008.
From and including February 22, 2008, to and includingJune 16, 2011.
= 1632 days in custody (including time as serving prisonerof 608 days: from and including October 1, 2008 to andincluding May 31, 2010).
Page: 104
[500] Caines has suffered significant prejudice. He has established that conditions at the ERCare egregious. The harsh conditions in which remand inmates find themselves there have beenthe subject of previous observations by this Court. Although Caines may have exaggerated as tosome aspects of his experience, certain conclusions may be drawn from his evidence and that ofothers who testified on this point. He has been incarcerated on units on the 4 floor with inmatesth
believed to belong to at least three different gangs. He has witnessed, and personally experiencedviolence, a riot, a flood on the unit, as well as crowding (sometimes inmates are housed three to acell with a mattress on the floor), tension, stabbings and assaults. He has suffered physicaldeterioration, weight gain, sore back, neck and feet, and deep depression. He has lost hismarriage and been estranged from his young daughter. He has been incarcerated in his cellbetween 18 and 23 hours a day and has spent time in segregation.
[501] While not a model prisoner, it is also true that it would be difficult to be a model prisonerin the conditions that are described. On the other hand, he has qualified to be a cleaner forperiods of time and so has had privileges in that role granted to him as a reward for goodbehaviour. While the fact that he has not been a candidate for judicial interim release isattributable to the charges that he faces and his personal circumstances, his liberty and securityinterests have been harmed by the delay in that ever longer time has and will be spent in thesecircumstances.
[502] Caines’ fair trial interests also have been affected by the delay occasioned by latedisclosure in that the entire trajectory of the trial was altered, with the necessary reassessment,vacating of his guilty plea, re-entry into this trial and activation of pre-trial motions.
2. John Reginald Alcantara
(a) Evidence and arguments of Alcantara [503] Presently, Alcantara is residing at the Drumheller Institution where he is serving asentence of eight years 10 months imprisonments imposed by Sulyma J. on his conviction in theKoker B prosecution.
[504] Alcantara was born on October 2, 1972. He was 34 years of age when arrested onNovember 26, 2006 and is now 38 years of age. His father is deceased and his mother remarried.His mother and step-father have relocated to the Philippines. Alcantara also has a 29-year-oldbrother who lives and works in Edmonton.
[505] Alcantara completed high school in Edmonton as well as a real estate course and one andone half years towards a management studies program at Grant McEwan College. He has beenmarried since 2005 and has two sons, aged 11 and 4 years, but has not been able to participate inraising them.
Page: 105
[506] Alcantara was incarcerated at the ERC from November 26, 2006 to September 9, 2008and from March 3 to December 4, 2009, when he was sentenced in the Koker B matter. Hedeposed that he experienced periods of depression and anxiety associated with the uncertainty ofthe outcome of the Koker A and Koker B cases. He attested that he has been in the judicialsystem for about four years and has had four show cause hearings, one bail revocationapplication, three bail review applications, one bail forfeiture application, two preliminaryinquiries that took about six months to complete, pre-trial motions and trial in the Koker Amatter, spanning a period of approximately 20 months.
[507] Alcantara submits that his pre-trial incarceration is a significant factor in terms ofprejudice to his liberty interest. He notes that courts have long recognized that remand prisonersspend their time in detention centres which are ill-suited to lengthy incarceration due toovercrowding, limited educational programs and limited access to recreational facilities.
[508] The only time when he was incarcerated on the Koker A matter when he would nototherwise have been incarcerated on Koker B was from June 13, 2008, when he was grantedjudicial interim release by Malin P.C.J. in Koker B [but did not enter into the recognizance at thetime as he had been denied release in Koker A] until September 9, 2008, after he was grantedjudicial interim release in Koker A by Philp P.C.J. on September 5 and had entered into theth
recognizances regarding both bail orders.
[509] Alcantara points out that the orders for his judicial interim release contained a number ofrestrictive conditions, including 24-hour house arrest with a knock and respond clause andgeographical mobility limitation. On December 9, 2008, the conditions of release were varied bySanderman J., allowing Alcantara to have limited contact with a co-accused, possess a cellulartelephone and be absent from his residence for specified family reasons and to participate incharitable events. The 24-hour house arrest provision remained in effect.
[510] Alcantara submits that prejudice from restrictive bail conditions does not end where thereis a breach of conditions in a situation such as here where the breach allegations did not involvethe commission of a criminal offence (R. v. Williams, 2010 BCPC 122 at para. 24).
[511] Although proof of actual prejudice to the right to make full answer and defence is notrequired, Alcantara contends that it is significant that late disclosure of the put-away featureimpaired the ability of the Defence to properly assess the case to meet. Based on disclosure up toDecember 10, 2009, he made the decision to abandon his Charter application for exclusion ofevidence based on a breach of ss. 7 and 8 and entered a plea of guilty to conspiracy. He submitsthat it was necessary to reassess his position in light of the new disclosure.
(b) Arguments of the Crown
Page: 106
[512] The Crown argues that any prejudice experiences by Alcantara due to the pre-trialcustody he served on Koker A was not related to any delay. The denial of his judicial interimrelease was a consequence of his involvement in the criminal proceedings, not the delay.
[513] The Crown asserts that the delay caused by late disclosure was between January 20, 2010and September 10, 2010, while Alcantara’s pre-trial custody on Koker A was served betweenNovember 26, 2006 and December 4, 2009, when he was sentenced to 14 years imprisonment onKoker B. Further, Alcantara was given credit for the entire period of his pre-trial custody sincehis arrest on November 26, 2006 against his 14 year sentence, reducing it to eight years and tenmonths. The Crown contends this indicates the pre-trial custody was associated to the Koker Bcharges and not Koker A. As a result, there is no nexus between the prejudice to his libertyinterest experienced from his pre-trial custody and the delay caused by late disclosure.
[514] Also, the Crown maintains that any prejudice Alcantara experienced due to restrictive bailconditions is not related to the disclosure delay but rather to his involvement in the criminalproceedings. It points out that Alcantara was on judicial interim release between September 9,2007 and March 25, 2008, whereas the disclosure delay was between January 20, 2010 andSeptember 10, 2010. The Crown asserts that, in any event, the conditions were not excessivegiven the circumstances. His house arrest conditions contained several exceptions permitting himto leave his residence for employment, health appointments, medical emergencies, religiousservices and any other purpose authorized by his bail supervisor. He could also leave theEdmonton area for employment purposes with permission.
[515] The Crown takes the position that the disclosure delay would have only a minimal effecton Alcantara’s security interest. Only the extended period, if any, of depression or anxiety heexperienced during the disclosure delay period would be of concern. Even that should beminimal as he has been facing two criminal prosecutions since November 26, 2006 and the eightmonths of delay is a relatively short period in comparison.
[516] The Crown submits that Mr. Alcantara’s fair trial interests have not been prejudiced as aresult of the disclosure delay. He had been allowed to vacate his guilty plea and is now back inthe same position as he was in before pleading guilty.
(c) Decision on prejudice to Alcantara
[517] The chronology of Alcantara’s incarceration is:
November 26, 2006 Date of arrest.
June 13, 2008 Judicial interim release granted in Koker B (terms:$25,000.00 cash, securities totalling $125,000.00, mustsurrender his passport, twice a week reporting, and 24-hourhouse arrest with a knock-and-respond clause).
Page: 107
September 5, 2008 Judicial interim release granted in Koker A ($50,000.00cash, 24-hour house arrest with a knock-and-respondclause, a geographical mobility limitation, and mandatoryreporting to ERC 96 hours before any trial or summarydisposition).
September 9, 2008 Released from custody.
March 3, 2009 Alcantara arrested, on breach of recognizancecharges.
March 23, 2009 Bail on Koker A revoked.
September 15, 2009 Convicted in Koker B proceedings.
December 4, 2009 Sentenced by Sulyma J. (14 years in prison less time servedof five years and two months, for a total of eight years andten months).
December 4, 2009 to end of trial: Serving prisoner (in Drumheller Institution) and onremand on present charges.
June 16, 2011 End of trial.
Total time in custody: From and including November 26, 2006, to and includingSeptember 9, 2008.
From and including March 3, 2009 to and includingJune 16, 2011.
= 1470 days in custody (including time as serving prisonerof 560 days: from and including December 4, 2009, to andincluding June 16, 2011).
* Alcantara was denied bail in Koker A and B. Aportion of his pre-trial custody on Koker A(November 26, 2005 to December 4, 2009)encompassed the same time period he received pre-trial custody credit for on Koker B.
[518] Alcantara has suffered prejudice. His security interests have been affected by the delay inthat he is facing on-going stress or damage to reputation occasioned by lengthy exposure to
Page: 108
unresolved criminal accusations. There has been a prejudicial impact on Alcantara’s libertyinterests as well. The calculation is complicated because he received credit in his sentence onKoker B for time that he was on remand for both matters. His fair trial interests also have beenaffected by the delay occasioned by late disclosure in that the entire trajectory of the trial wasaltered, with the necessary reassessment and activation of pre-trial motions.
3. Alan Peter Knapczyk
(a) Evidence and arguments of Knapczyk
[519] Knapczyk was 32 years of age when arrested November 26, 2006. He attests that he wasin very good health and very good shape upon his arrest, with no problems of depression, anxietyor sleep loss. He says that he was employed full time and had custody and primary residentialcare of his 12 year old daughter. He describes his relationship with his family who reside inEdmonton as extremely close and that his father is a prominent member of the businesscommunity. He attests that since his arrest, this matter has been reported in the media at least 15times, that he has been referred to as an alleged drug king pin, and that his name is mentionedeach time. He understands that conviction may result in a “very lengthy prison sentence”.
[520] Knapczyk says that as a result of the stress and anxiety associated with these charges, hehas experienced depression, difficulty eating, and loss of energy with the result that he has notbeen able to maintain his physical fitness that he had cultivated over ten years. He has lost 30pounds, sleeps only a few hours at a time, is nauseous, and is prescribed anti-depressants thoughhe is opposed to use of mood altering prescription drugs.
[521] Knapczyk attests that he lost his job as a result of the notoriety and nature of the charges.His work history is mechanical and labor related, requiring shift work and that he be out of town.Initially, his bail conditions included a curfew but in June, 2008 the terms were amended with theresult that he obtained employment with Tri-Star Underground, working up to 60 hours perweek. In June of 2010, he was dismissed, and contends that he was advised by his employer thathe was fired as a result of these charges and that customer relations might be affected.
[522] He has forgone the opportunity to buy a house and enter the motorcycle sales and repairbusiness because of the outstanding charges.
[523] Knapczyk has attested to the fact that his 15 year old daughter now lives with her motherand he sees her only a few times a month. They cannot travel or take long weekends to camp dueto the Monday curfew. She is in counselling because she suffers anxiety associated with thecharges as well as social exclusion. He says it is difficult to have a meaningful relationship withher for fear of a possible lengthy separation. In 2009, his girlfriend gave birth to his second child,but they have decided that he will play a limited role in her life so she does not become attachedand then separated from her father.
Page: 109
[524] Knapczyk attests further to the public shame his father endures in the community as aresult of the unresolved status of the charges.
[525] Knapczyk argues that his liberty interests have been affected: he was in custody 19 days,his bail conditions have been strict with curfew, travel restricted to Alberta, and the impact on hisability to participate in his daughter’s up-bringing. He argues that his security interests have beenaffected by the exposure to criminal proceedings, the uncertainty of his future with the prospectof a jail sentence weighing heavily, he is prevented from forming close bonds with his daughter,and he is living day to day. He argues that his physical and emotional health have beencompromised.
(b) Arguments of the Crown
[526] The Crown acknowledges that the Court can infer prejudice to Knapczyk based on theoverall length of delay. However, it argues the delay will have minimal prejudicial effect on hisliberty interest. He sought and obtained judicial interim release on January 29, 2007. Theconditions of release were varied over time. By January 2010, they were not overly onerous orexcessive in the circumstances. The only curfew requires that he be in his residence on Mondaysbetween 10:00 p.m. and Tuesday at 7:00 a.m. The only travel restriction is that he not leaveAlberta without the permission of his bail supervisor and that he turn in his passport.
[527] The Crown maintains that any prejudice resulting from the extended periods of anxietydue to the delay in disclosure is minimal and no exceptional difficulties have been asserted.
[528] The Crown takes the position that Knapczyk’s fair trial interests have not been prejudicedas a result of the disclosure delay.
(c) Decision on prejudice to Knapczyk
[529] The chronology of Knapczyk’s incarceration is:
November 26, 2006 Date of arrest.
December 15, 2006 Judicial interim release granted (remain in Alberta, abstainfrom drugs and firearms, surrender passport, cell phoneprohibition, curfew of 10:00 p.m. to 7:00 a.m., maintain alandline at a fixed and certain address, maintainemployment, carry a copy of the recognizance at all timesand report to ERC 18 hours prior to any preliminaryhearing or trial).
July 30, 2007 Judicial interim release varied by consent(Condition 12 amended to read that Accused must
Page: 110
abide by a curfew of 10:00 p.m. to 7:00 am., exceptas approved in writing by the bail supervisor.Notwithstanding anything in the order, the Accusedneed not abide by the curfew between July 26, 2007and September 7, 2007).
April 7, 2008 Judicial interim release varied by consent (Accused mustreport to the ERC 18 hours prior to the preliminary inquiry,but need not be held in custody for that time). *Granted inan April 4, 2008 consent variation of release order.
December 3, 2010 Judicial interim release varied by consent (Accused may beabsent during curfew hours for the purpose of employmentif bail supervisor is notified).
Total time in custody: 20 days (From and including November 26, 2006, to andincluding December 15, 2006).
[530] Knapczyk has suffered prejudice. His security interests have been affected by the delay inthat he is experiencing on-going stress or damage to reputation occasioned by lengthy exposureto unresolved criminal accusations in relation to serious charges. The impact on Knapczyk’sliberty interests has been minimal because he was granted early judicial interim release and hasbeen able to maintain employment and mobility within the province. His fair trial interests havebeen affected by the delay occasioned by late disclosure in that the entire trajectory of the trialwas altered, with the necessary reassessment and activation of pre-trial motions.
E. Balancing
1. The purposes of s. 11(b)
[531] It is useful to recall the elements of the balancing process.
[532] Section 11(b) of the Charter embraces ss. 7 and 11(d). In Askov at p. 474, Cory J. put itthis way:
Like other specific guarantees provided by s. 11, this paragraph is primarilyconcerned with an aspect of fundamental justice guaranteed by s. 7 of the Charter... It is a fundamental precept of our criminal law that every individual ispresumed to be innocent until proven guilty. It follows that on the samefundamental level of importance, all accused persons, each one of whom ispresumed to be innocent, should be given the opportunity to defend themselves...at the earliest possible time.
Page: 111
[533] According to Sopinka J. in Morin at paras. 26-88, the primary purpose of s. 11(b) is toprotect the following individual rights of accused persons:
(1) the right to security of the person, by seeking to minimize the anxiety, concernand stigma of exposure to criminal proceedings;
(2) the right to liberty, by seeking to minimize exposure to the restrictions onliberty which result from pre-trial incarceration and restrictive bail conditions; and
(3) the right to a fair trial, by attempting to ensure that proceedings take placewhile evidence is available and fresh.
[534] The secondary interest of society as a whole also is recognized in s. 11(b). The secondarysocietal interest has two aspects: (i) that which parallels the individual interest; and (ii) thatwhich is adverse in interest.
[535] In Morin at para. 29, Sopinka J. stated that the societal interest is most obvious when itparallels that of the accused in the context of ss. 7 and 11(b). The parallel interest is that thoseaccused of crimes be treated humanely and fairly; that they be brought not to any trial but to a fairtrial. Trials held within a reasonable time have that intrinsic value. On a fundamental level, a fairtrial also incorporates the presumption of innocence referred to by Cory J. in Askov at p. 474.
[536] The societal interest that is adverse to that of the accused was referred to in Conway v.The Queen, [1989] 1 S.C.R. 1659, 49 C.C.C. (3d) 289 at 306 (S.C.C.) by L’Heureux-Dube J. asthe “...important community interest of preventing crime through the conviction of persons guiltyof a criminal offence.” In Askov at p. 474, Cory J. spoke of it as “...a collective interest inensuring that those who transgress the law are brought to trial and dealt with according to thelaw.” In Morin at para. 30, Sopinka J. characterized it as, “...the interests of society in lawenforcement. As the seriousness of the offence increases so does the societal demand that theaccused be brought to trial.”
2. The Morin factors
[537] Sopinka J. in Morin at para. 32, described judicial balancing as involving an examinationof the length of the delay and its evaluation in light of the following factors: waiver of timeperiods, reasons for the delay, (including inherent time requirements, actions of the accused,actions of the Crown, limits on institutional resources and other reasons), and prejudice to theAccused. The degree of prejudice, or absence thereof, is an important factor in determining thelength of institutional delay that will be tolerated (Morin at para. 64).
[538] In Chan, Sulyma J. remarked as follows at paras. 4-5, 406, and 422:
Page: 112
Madam Justice L'Heureux-Dubé in Conway at para. 21 stated that while somedegree of impairment of an accused's s. 11(b) right may necessarily result from thepassage of time, greater weight in the overall assessment of reasonableness shouldattach to impairment resulting from delays not attributable to the person charged.
...
Halvorson J. in R. v. Laporte (1994), 124 Sask.R. 307 at para. 30 (Q.B.)suggested that courts generally take a stricter view of delays arising from a failureon the part of the Crown to provide disclosure than from delays resulting fromsome other forms of Crown conduct.
...
The inherent portion of the delay relating to disclosure is the length of time itreasonably should have taken the Crown to provide disclosure in a properlyconducted and prosecuted case of similar complexity.
[539] In balancing the primary interests of the individual (liberty, security, trial fairness) withthe adverse aspect of the societal interest, courts take into account: (1) length of the delay; (2)complexity of the case; and (3) seriousness of the charge. Societal interests increase with theseriousness of the charge (Morin at para. 30).
[540] In R. v. Kporwodu (2005), 195 C.C.C. (3d) 501 (C.A.), the Crown argued that the trialjudge had failed to properly balance the Morin factors and specifically, given the seriousness ofthe offences, had failed to give proper consideration to the societal interest of ensuring thatalleged offenders are brought to trial and dealt with according to law. The court responded to thisargument at paras. 192-194, stating in part:
... the seriousness of the offence is not a separately enumerated factor to beconsidered in and of itself. There is no separate analysis of reasonableness in lightof the seriousness of the offence. Rather, the seriousness of the offence mustinform both the court's consideration of each factor and the balancing exercise.
In making this statement, we wish also to respond to the suggestion that in therecent cases of Qureshi, supra, Seegmiller, supra, and R. v. Kovacs-Tatar (2004),73 O.R. (3d) 161, [2004] O.J. No. 4756, 192 C.C.C. (3d) 91 (C.A.), this courttreated the seriousness of the offence as an independent factor to be pitted againstthe interests of an accused. We do not read those cases as suggesting that sometype of separate analysis is required for more serious offences. In each case, thiscourt followed the analytical framework established in Morin, considered the fourfactors relevant to delay, and engaged in the requisite balancing process.
Page: 113
... while society has a heightened interest in seeing that serious offences are tried,the Crown has a heightened obligation to ensure that the trials for such offencesare held in a timely fashion.
[541] In Ghavami at para. 52, the British Columbia Court of Appeal recently stated:
In our view, balancing makes sense only if weight is attributed to the causes ofdelay. Inherent time requirements should receive little if any weight, because theyare not attributable to either the state or the accused, and because some delay isinevitable. Actual or inferred prejudice to the accused will be accorded a certainweight, but it may be counter-balanced by delay caused or contributed to by thedeliberate actions of the defence. Correspondingly, if the organs of state - Crown,justice system, or judiciary - are responsible for some part of the delay, then thepublic interest will be entitled to less weight when balanced against the accused'sright to a timely trial, because the protectors of the public interest have failed tolive up to the standard expected of them. However, institutional and judicialdelays will be accorded less weight than delays actually within the scope of theCrown's ability to expedite proceedings, because they are not the result ofvoluntary Crown action.
3. Arguments of the parties
[542] Alcantara argues that the 26 months which he considers attributable to Crown delayshould be given greater weight in the overall assessment of reasonableness, particularly the eightmonth delay caused by the late disclosure. He submits that the Court should infer that he isprejudiced by the total time of four years, six and one half months to time of trial, and actualprejudice has been proved to his liberty and security interests. He also asserts that the latedisclosure has impacted his right to make full answer and defence under s. 7 of the Charter .
[543] He submits that in balancing the Crown responsibility for the overarching reasons fordelay against society’s interests in the trial of these serious charges, those interests are served byensuring the minimization of delay in such large and complex cases (Paryniuk, at para. 89). Inthis case, he argues, there has been a breach of the right to trial within a reasonable time under s.11 (b) of the Charter and that a judicial stay of proceedings ought to be granted under s. 24(1).
[544] In oral argument, Alcantara emphasized that it is clear the RCMP were using the putaway feature as early as 2003 when Ms. Miller said that the RCMP started using Voicebox,although it appears that the use of the feature was unknown to the Crown in this case until justprior to its disclosure to the Defence. He contends that disclosure should have been made beforethe trial commenced and the late disclosure caused impairment to his right to make full answerand defence as is illustrated by the complete shift in approach: further disclosure motions,application to vacate pleas, resurrection of pre-trial motions and the problem of examiningevidence derived from the interceptions contrary to the wire authorization.
Page: 114
[545] Alcantara argues that the case law is consistent and that R. v. Mills, [1999] 3 S.C.R. 668,Conway, Askov, and Morin all hold that the longer the delay, the more likely that the Court willinfer prejudice. In this case, the overall period of delay is more than 4 years. Even excluding theperiod after he was sentenced for Koker B, he suggests that there is still a period of delay inexcess of two years, being thirty one and one half months. He points to the decision of Sulyma J.in Chan at para. 631, in which she noted the inextricable nexus between ss. 7 and 11(b) Charterinterests. Alcantara maintains that although the fact he was a serving prisoner for part of theperiod of delay does ameliorate the impact of the delay on his liberty interests, the prejudice to his security and fair trial interests has continued.
[546] Caines emphasizes the purposes of s. 11(b) of the Charter: the protection of security,liberty and fair trial interests. He maintains that, in terms of his security interests, his anxiety andthe stigma of his exposure to the criminal justice system continued even though he was a servingprisoner during part of the period of delay. He points to the “absolutely irrefutable” proof ofprejudice in the inhumane treatment he suffered at the ERC, invoking the terms “nasty andbrutish.” This prejudice, he argues, is entitled to more weight the longer it goes on and the moreserious it is. He submits that his liberty interests have been affected profoundly as he was deniedjudicial interim release. He also argues that his fair trial interests have been affected by the delay,including the effects of the delay in providing significant disclosure.
[547] Knapczyk argues that Crown delay must be accorded greater weight, in particular the factthat the trial originally was scheduled for November 2009 but the proceedings did not get underway until September 2010.
[548] He emphasizes the purposes of s. 11(b) in arguing that his Charter-protected interestshave been breached: his liberty interests by the strict bail conditions under which he has lived; hissecurity interests by long-term exposure to criminal proceedings causing harm to his physical andmental health; and his fair trial interests that are necessarily affected by delayed proceedings. Heargues that prejudice has been established in his case.
[549] The Crown asserts that with a qualitative balancing of the appropriate interests, the delayin this prosecution is not unreasonable. Society has a significant interest in ensuring that theApplicants are brought to trial given the serious charges they are facing.
[550] The Crown argues that while the Applicants suffered some prejudice as a result of thedisclosure delay, it is minimal. It says the delay did not prejudice Alcantara’s liberty interests orcompromise his right to a fair trial. The Crown suggests that the almost eight months of delaywhich it concedes it is responsible for is minimal compared to the overall delay, 22 and one halfmonths of which it attributes to Alcantara himself.
[551] In terms of Knapczyk, the Crown contends the delay did not compromise his fair trialinterest and there was only minimal prejudice to his liberty and security interests. It argues the
Page: 115
disclosure delay is just a fraction of the overall delay, of which 12 months is attributable toKnapczyk.
[552] The Crown argues that while Caines suffered some prejudice as a result of the delay, itdid not compromise his fair trial interest. It suggests only minimal prejudice to his securityinterests can be inferred. It concedes there is greater prejudice to his liberty interests, but says it isnot excessive. It contends the disclosure delay is a fraction of the overall delay, 12 months ofwhich it contends is the responsibility of Caines.
4. Balancing in this case
(a) Overall period of delay
[553] Alcantara, Knapczyk and Caines all were charged on November 24, 2006. Alcantara andKnapczyk were arrested on November 26, 2006. Caines was arrested on December 5, 2006. Thetrial presently is scheduled to recommence on April 11, 2011 and to conclude on June 16, 2011.Accordingly, the operative time period is about four years and 6.5 months.
[554] Caines argues that pre-charge delay must be considered, relying on the followingstatement in Morin at para. 35:
As I have indicated, this factor requires the court to examine the period from thecharge to the end of the trial. "Charge" means the date on which an information issworn or an indictment is preferred (see Kalanj, supra, at p. 1607). Pre-chargedelay may in certain circumstances have an influence on the over-alldetermination as to whether post-charge delay is unreasonable but of itself is notcounted in determining the length of the delay.
[555] Alcantara argues that the events that gave rise to this prosecution started on July 1, 2005and continued to March 2006. He points out that the investigation concluded in February 2006,but charges were not laid until the following November. He argues that this period of ninemonths is important as the Crown had nine months prior to the swearing of the Information to gettheir disclosure materials together. I have considered this pre-charge delay in the balancing.
[556] I have determined, and counsel agree, that the time period between the date when theApplicants were charged and the projected end of trial is sufficiently long so as to raise the issueof reasonableness.
(b) Attribution for delay
[557] As to attribution or responsibility for the delay, I have concluded that:
Page: 116
Stage 1: November 26, 2006/December 5, 2006 (arrest) to October 31, 2007(end of intake period): The initial intake period (inherent time period) ran fromNovember 26, 2006 in terms of Alcantara and Knapczyk and December 5, 2006 interms of Caines through to the end of October 2007.
Stage 2: November 1, 2007 to April 6, 2008 (day before preliminary inquiry):The period of delay from November 1, 2007 to February 24, 2008 is attributableto reasonable institutional delay. While part of the delay during that time periodmay also be the responsibility of Alcantara as a result of his change of counsel, Igive greater weight to the institutional delay as the preliminary inquiry could nothave proceeded prior to February 25, 2008 even if Alcantara had not retained anew lawyer.
The period of delay between February 25, 2008 and April 6, 2008, when thepreliminary inquiry in the Koker B matter was proceeding, is attributable to “otherreasons for delay” as against Caines, Alcantara and Knapczyk.
Stage 3: April 7, 2008 (start of preliminary inquiry) to July 14, 2008(committal to stand trial): The time period between April 7, 2008, when thepreliminary inquiry in this matter commenced, and July 14, 2008, when theApplicants were committed to stand trial, is part of the inherent time requirementsof the case.
Stage 4: July 15, 2008 (day after committal) to September 5, 2008(adjournment request): The time period from July 15, 2008 to August 22, 2008was part of the inherent time requirements of the case. The delay from August 23,2008 to the next arraignment date of August 29, 2008 was institutional. Theperiod of delay from August 30, 2008 to September 5, 2008 is accounted for as“other reasons for delay” as against all the Applicants.
Stage 5: September 6, 2008 (day after adjournment request) to October 24,2008 (setting of trial dates): The delay from September 6, 2008 to October 24,2008 was due to Mr. Chadi’s withdrawal as counsel for Caines and Knapczyk andthe need for those Accused to obtain new counsel before a trial date could be set.Caines and Knapczyk share responsibility for this period of delay with the Crown.In terms of Alcantara, this period of delay is attributable both to “other reasons fordelay” and Crown delay.
Stage 6: October 25, 2008 (day after trial date scheduled) to November 10,2009 (trial to commence): The time period from October 25, 2008 to February 2,2009 was one of institutional delay. The period from February 3, 2009 to June 10,2009 is attributable to “other reasons for delay” as against all three Accused. Thedelay from June 10, 2009 to September 1, 2009 was institutional. The time period
Page: 117
from September 2, 2009 to November 10, 2009 should be regarded as “otherreasons for delay” in regard to all three Accused.
Stage 7: November 11, 2009 (day after trial to commence) to September 26,2010 (day before commencement of delay motion): The time period fromNovember 11, 2009 to December 10, 2009 was a period of Crown delay.December 11, 2009 to December 17, 2009 was a period of inherent delay. Thedelay from then to January 20, 2010 was a period of institutional delay or shouldbe attributed to “other reasons for delay.” Finally, the delay from January 21, 2010to September 26, 2010 is the responsibility of the Crown.
Stage 8: September 27, 2010 (commencement of delay motion) to June 16,2011 (anticipated end of trial): The time period from September 27, 2010 toMarch 31, 2011is attributable to actions of the Defence as against all threeApplicants. The period from April 1, 2011 to June 16, 2011 is part of the inherenttime requirements of the case.
[558] Accordingly, the operative time period from date of arrest to conclusion of the trial isabout 54.5 months.
[559] Of that time, about 18 months must be subtracted as inherent delay (November 26,2006/December 5, 2006 to October 31, 2007; April 7, 2008 to July 14, 2008; July 15, 2008 toAugust 22, 2008; December 11, 2009 to December 17, 2009; April 11, 2011 to June 16, 2011).
[560] Institutional delay accounts for some 11 months (November 1, 2007 to February 24,2008; August 23, 2008 to August 29, 2008; October 25, 2008 to February 2, 2009; June 10, 2009to September 1, 2009 and December 18, 2009 to January 20, 2010).
[561] Actions of Caines and Knapczyk caused or contributed to 7.75 months of delay;including the period of delay from September 6, 2008 to October 24, 2008 caused by Mr. Chadi’swithdrawal as counsel (about 1.75 months), responsibility for which they share with the Crown;and the delay from September 27, 2010 to March 31, 2011consumed by pre-trial motions (6months). Actions of Alcantara caused or contributed to about 10 months of delay; including thedelay from November 1, 2007 to February 24, 2008 resulting from his change in counsel (4months), to which I give little weight as it occurred during a period of overriding institutionaldelay; and the delay during the pre-trial motions (6 months).
[562] The Crown caused or contributed to about 10.75 months of delay; including the delaycaused by Mr. Chadi’s withdrawal due to conflict, responsibility for which it shares with Cainesand Knapczyk (1.75 months); and the delay from November 11, 2009 to December 10, 2009(1 month) and from January 21, 2010 to September 26, 2010 (8 months) caused by its latedisclosure of the use of the “put away” function in the face wire authorizations that require livemonitoring (8.25 months). This latter time period is entitled to more weight because of the
Page: 118
Crown’s Stinchcombe disclosure obligations, and because the information was in the possessionof the police and its importance for outstanding prosecutions known for a significant period oftime before disclosure was made.
[563] Other reasons for delay have caused or contributed to 9.75 months of delay; including theperiod from February 25, 2008 to April 6, 2008, when the Koker B preliminary inquiry wasproceeding (1.25 months); the period from August 30, 2008 to September 5, 2008 (0.25 months);September 6, 2008 to October 24, 2008 (1.75 months), responsibility for which is shared by theCrown in terms of Alcantara; February 3, 2009 to June 10, 2008 (4.25 months); and September 2,2009 to November 20, 2009 (2.25 months). This delay, while not attributable to the Crown, mustbe considered in the overall period of delay.
[564] As there is some overlap in the reasons for delay for certain periods, the numbers for theindividual reasons for delay do not add up precisely to the number for the total period of delay.
(c) Prejudice
[565] When there is delay of four years and 6.5 months between the charges and the trial,prejudice to Charter-protected interests is assumed. The evidence shows that the securityinterests of Caines, Alcantara, and Knapczyk have been infringed in that the heavy weight offacing criminal prosecution has been borne by them over a protracted period of time, causingharm to their emotional, physical and mental well-being. The length of the delay has exacerbatedthis harm beyond what would be suffered as a consequence of the charges themselves. I also takeinto consideration that when an accused is in custody, less institutional or Crown delay isacceptable. The prejudice suffered by Caines, incarcerated for months under oppressiveconditions at the ERC, awaiting trial and presumed innocent, is significantly greater than that ofKnapczyk, who has been on judicial interim release, and Alcantara, who is a serving prisoner andwill be so until trial concludes.
(d) Complexity
[566] This is a large and complex case. The charges of conspiracy to traffic in cocaine facingthe three Applicants name 18 alleged co-conspirators. The alleged activities of some of thoseindividuals have been the subject of independent charges. Alcantara and Knapczyk face a chargeof conspiracy and trafficking in relation to a criminal organization. Caines faces numerous othercharges, most serious of which is being one of the persons constituting a criminal organization.The police obtained five authorizations to intercept private communications under s. 186 of theCode. As noted above, the disclosure received by the Applicants consists of over 8,317documents totalling in excess of 400,000 pages provided to the Applicants predominately inelectronic form by way of an external hard drive and multiple DVDs. The disclosure increasedwith the material concerning the put away issue. The narrative logs of the intercepted privatecommunications contain 51,827 sessions totalling 59,530 pages. In a Notice of Intention under s.189(5) of the Code dated March 6, 2008, the Crown gave notice that it would seek to introduce
Page: 119
464 intercepted private communications into evidence at trial, though this will change as a resultof the late disclosure.
(e) Seriousness of the charges
[567] The seriousness of the charges is reflected in the gravamen of the offences as well as inthe potential penalties. All three Accused are charged with conspiracy to traffic in cocainecontrary to s. 465(1)(c) of the Criminal Code, as well as with trafficking in cocaine contrary to s.5(1) of the Controlled Substances Act.
[568] Alcantara and Knapczyk have each been charged under s. 467.12 of the Criminal Code.The wording of that section is as follows:
467.12(1) Every person who commits an indictable offence under this or any otherAct of Parliament for the benefit of, at the direction of, or in association with, acriminal organization is guilty of an indictable offence and liable to imprisonmentfor a term not exceeding fourteen years. [Emphasis added.]
(2) In a prosecution for an offence under subsection (1), it is not necessary for theprosecutor to prove that the accused knew the identity of any of the persons whoconstitute the criminal organization.
[569] The maximum sentence for this criminal offence, as stated above, is fourteen years inprison. A sentence under s. 467.12 will also attract the additional sanctions listed below thataccompany a conviction under s. 467.13. As well, the “totality principle” applies to sentences fors. 467.12 offences.
[570] Caines has been charged under s. 467.13 of the Criminal Code. The wording of thatsection is as follows:
467.13(1) Every person who is one of the persons who constitute a criminalorganization and who knowingly instructs, directly or indirectly, any person tocommit an offence under this or any other Act of Parliament for the benefit of, atthe direction of, or in association with, the criminal organization is guilty of anindictable offence and liable to imprisonment for life. [Emphasis added.]
Page: 120
“The participation offence carries a maximum penalty of five years imprisonment, the commission offence1
fourteen years imprisonment, and the instructing offence life imprisonment. The "instructing offence" carries the
maximum penalty of the three criminal organization offences implying that Parliament considered it to be the most
culpable offence” (para. 29).
[571] The maximum sentence for this criminal offence is life imprisonment (R. v. Smith, 2008SKCA 20 at para. 29 , 307 Sask.R. 45, and R. v. Terezakis, 2007 BCCA 384 at para. 37, 2231
C.C.C. (3d) 344).
[572] Special sentencing rules accompany a conviction under s. 467.13, which include:
(a) a criminal organization offence must be consecutive to any otherpunishment (s. 467.14);
(b) a special parole ineligibility period applies for conspiracy offences (s. 743.6(1.2)); and
(c) a criminal organization charge may be considered as an aggravating factorin sentencing (s. 718.2 of the Criminal Code).
[573] Chief Justice Lamer (as he then was) in R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 42qualified the requirement that sentences be consecutive:
In the context of consecutive sentences, this general principle of proportionalityexpresses itself through the more particular form of the “totality principle”. Thetotality principle, in short, requires a sentencing judge who orders an offender toserve consecutive sentences for multiple offences to ensure that the cumulativesentence rendered does not exceed the overall culpability of the offender.
[574] There is no legislated minimum sentence for an offence under s. 467.13.
[575] Caines also has been charged with being one of the persons constituting a criminalorganization and instructing others to traffic in cocaine and be in possession of the proceeds ofcrime, contrary to ss. 355(a) and 467.13 of the Criminal Code. He is further charged with anothercount of possession of the proceeds of crime as well as five counts of possession for the purposesof trafficking in cocaine and one count of obstruction of justice.
[576] These charges are very serious. The allegations involve alleged activities that causeenormous damage to the lives of individuals, families and communities. Society has acompelling interest in bringing charges of this nature to trial. Similarly, the Applicants faceenormous consequences if convicted: the gang charges facing Alcantara and Knapczyk alonecarry a maximum of 14 years in prison, while that facing Caines carries a maximum of life in
Page: 121
prison. These penalties demonstrate the compelling interests of both society and the Applicantsin an expeditious and fair trial.
5. Conclusions on balancing
[577] There is no empirical calculation to determine the tipping point at which the delaybecomes unreasonable and contrary to s. 11(b) of the Charter. Rather, it is a judicial balancingact that strives to protect Charter enshrined security, liberty and fair trial interests; values thatuphold the rule of law; while at once honouring the important individual and community interestsin bringing a case of this complexity and gravity to trial in an expeditious fashion.
[578] The overall period of delay in this case is significant, although the case undoubtedly is acomplex one. In my view, the delay attributable to inherent and institutional delay has not beenexcessive in the circumstances. The Crown clearly is responsible for almost 11 months of delay.However, the Defence too has caused or contributed to some seven to ten months of delay.
[579] While the Applicants’ Charter interests have been engaged; their interests in liberty,security and fair trial affected; and while they have suffered prejudice attributable to delay,Caines in a disproportionately grave fashion, in the circumstance before me, on balance, I cannotfind there has been a breach of the right to trial within a reasonable time under s. 11(b) of theCharter so that a judicial stay of proceedings ought to be granted under s. 24(1). The applicationis dismissed.
Heard on the 27 day of September 2010 through to December 16, 2010.th
Dated at the City of Edmonton, Alberta this 14 day of February, 2011.th
S.J. GreckolJ.C.Q.B.A.
Appearances:
Dennis C. Hrabcak Public Prosecution Service of Canada
for the Crown
A. Clayton RiceOuellette Rice
for the Accused John Reginald Alcantara
Page: 122
Gregory C. LazinGregory C. Lazin Professional Corporation
for the Accused Jeffrey Caines
Ajay Juneja (Juneja & Company) and Hasaan Jomha (Jomha Law Office)for the Accused Alan Peter Knapczyk
Page: 123
Appendix AOther Related Matters in Which Mr. Chadi Acted for an Accused
A. R. v. Jeffery Mark Caines and Melanie Carole Berube
[1] Caines and Melanie Carole Berube (“Berube”) were jointly charged in Information No.016328924P1, sworn on April 20, 2001, with possession of cocaine for the purpose of traffickingand possession of more than $1,000 knowing all or part of it was the proceeds of crime. Cainesalso was charged with trafficking in cocaine at or near Fort McMurray, Alberta.
[2] On April 25, 2001, the charges were read and both reserved election and plea. N. Assif ofChadi & Co. appeared for both, apparently acting as agent in the case of Caines. The matter wasadjourned to May 28th.
[3] On May 28, 2001, Caines and Berube elected trial by judge alone. Both were representedby Mr. Chadi, who suggested a date of October 1 for the preliminary inquiry. S.M.I. Botternst
appeared for the Crown.
[4] On August 29, 2001, P.T. Miranda (“Miranda”) appearing as agent for Mr. Chadi for bothaccused, asked that the preliminary inquiry be re-scheduled for January 25, 2002. Ms. Botternappeared for the Crown. The new date was confirmed on October 1, 2001.
[5] On January 24, 2002, Judge Peck was advised by Mr. Chadi and Ms. Bottern that Mr.Cleall would be a witness in the matter. Also, they advised that there was a tape, which theCrown considered to be an important piece of evidence against Caines, that had not beendisclosed to the Defence. Ms. Bottern said the Crown would consent to an adjournment if theDefence requested one. On January 25 , the matter was adjourned to February 6 to set a newth th
date for the preliminary inquiry. B. Jean appeared as agent for Mr. Chadi for Caines.
[6] On February 6 , with Mr. Chadi acting for both accused and Ms. Bottern appearing forth
the Crown, the preliminary inquiry was set for June 11, 2002. Mr. Chadi had still not received theadded disclosure.
[7] On June 11, 2002, Mr. Moreau, appearing on the record for Caines, advised the Court thatCaines had been admitted to hospital the previous night and released in the morning. Mr. Moreauasked that the matter be adjourned. Ms. Botten indicated the Crown did not want to split theInformation. Mr. Chadi appeared for Berube. The preliminary inquiry was set for December 3,2002.
[8] Mr. Moreau acted for Caines and Mr. Chadi for Berube at the preliminary inquiry, heldon December 3, 2002. Both accused were ordered to stand trial on the possession of proceeds ofcrime charge and Caines on the trafficking in cocaine charge. They were not committed to standtrial on the charge of possession of cocaine for the purpose of trafficking.
Page: 124
[9] Caines was indicted (Indictment No. 016328924Q2) on those two charges on January 21,2003.
[10] On April 28, 2003, Mr. Chadi appeared for Caines but on June 27, 2003 he appeared asagent for Mr. Moreau for Caines, when the matter was adjourned.
[11] On September 17, 2003, with Mr. Chadi acting for Berube and as agent for Mr. Moreaufor Caines, an adjournment was requested by the Defence, and granted to May 10, 2004.
[12] The committal of Berube on the charge of possession of proceeds of crime was quashedby Ross J. on February 24, 2004 (R. v. Berube, 2004 ABQB 131).
[13] On May 7, 2004, Mr. Moreau made a telephone application for an adjournment of thetrial for personal reasons relating to him. He advised Burrows J. that Caines was prepared towaive any resulting delay. Ms. Bottern asked whether Mr. Chadi might take over for Mr. Moreauin acting for Caines since the committal against Berube had been quashed by Ross J. Ms. Botternnoted an assignment of bail proceeds on the file which indicated a long-standing relationshipbetween Caines and Mr. Chadi. Mr. Moreau advised that Mr. Chadi was not prepared to proceedwith a jury trial within three days. The Crown advised on the record that it opposed theadjournment.
[14] On May 10, 2004, with G. Marullo of Chadi & Co. appearing as agent for Mr. Moreau forCaines, the matter was adjourned.
[15] On May 21, 2004, Mr. Chadi appeared as agent for Mr. Moreau for Caines. In speaking toSlatter J. (as he then was), he explained that it had become clear to him before the preliminaryinquiry that there was going to be a conflict between Berube and Caines. As a result, Mr. Moreautook over as counsel for Caines. He also said that a civilian witness attended at his office andthere may have been a conflict if he was going to testify on behalf of the Crown. However, heindicated, and the Crown agreed, the witness was comfortable with Mr. Chadi cross-examininghim. The matter was adjourned.
[16] Mr. Chadi appeared for Caines before Slatter J. on September 1, 2004. He stated thatthere had been a potential conflict he was involved in with Caines, but it would have been moreso if he would have represented both. However, Berube’s case had been resolved. He repeatedthat a potential witness had been in his office and they’d spoken, so he backed off the case. Headvised that Caines wanted him to act on his behalf, but Mr. Moreau would still have to cross-examine the Crown’s witness. He asked for the trial to be put over to February 14, 2005. TheCrown consented as a matter of quid pro quo as Mr. Chadi had been very helpful to Ms. Botternon that and other files.
[17] On November 26, 2004, Mr. Moreau appeared as agent for Mr. Chadi for Caines.
Page: 125
[18] On February 14, 2005, jury selection took place before Park J. with Mr. Chadi and Mr.Moreau acting for Caines. A mistrial was declared the next day. On April 18, 2005, during a pre-trial conference in which Mr. Chadi and Mr. Moreau acted for Caines, the trial was set forOctober 31 to November 4 . At another pre-trial conference on April 29, 2005, Mr. Moreaust th
appeared as counsel for Caines. Mr. Chadi appeared as co-counsel for Caines at a pre-trialconference on May 20, 2005.
[19] On October 27, 2005, there was a stay of proceedings. The charges against Caines werereactivated on October 25, 2006. At the first court appearance after the re-activation, onDecember 21, 2006, M. Karout of Chadi & Co. appeared as agent for Mr. Chadi for Caines.
[20] On February 2, 2007, with Caines remanded in custody, the matter was adjourned toMarch 2 to set a trial date. M. Jakeman appeared as agent for Mr. Chadi for Caines. nd
[21] On March 30, 2007, Caines elected trial by judge alone. M. Jakeman appeared as agentfor Mr. Chadi for Caines. On January 11, 2008, a new trial date of September 29, 2008 was seton consent of the Crown and Defence. Mr. Gill of Chadi & Co. was listed as counsel for Caines.A bail hearing was held on January 31, 2008. Mr. Chadi appeared as counsel for Caines, whowas released on bail.
[22] At a pre-trial conference on February 22, 2008, A. Gill was listed as counsel for Caines.Caines’ bail was revoked on that date and he was remanded into custody on Koker A. At anappearance on May 2, 2008, M. Karout appeared as agent for Mr. Gill and Mr. Chadi for Caines.On October 1, 2008, Caines was found guilty of both counts in the Indictment and sentenced to48 months, with 18 months credit, leaving 30 months. A. Gill acted as Defence counsel.
B. R. v. Aaron Patrick McDonald and Letisha Dawn Peters
[23] McDonald and Peters were charged in Information No. 051089498P1, sworn onSeptember 16, 2005, with possession of cocaine for the purpose of trafficking, possession ofmethylenedioxymethylamphetamine for the purpose of trafficking, possession of the proceeds ofcrime and various weapons offences, all in or about Fort McMurray, Alberta.
[24] Mr. Chadi acted as Defence counsel for both accused at their show cause hearing.Following joint submissions, they were granted judicial interim release on September 16, 2005.Chadi & Company was listed as assignee of the peace bonds.
[25] On October 11, 2005, with Mr. Chadi appearing as counsel, the matter was adjourned toNovember 22 for election and plea. On November 22, 2005, both accused pleaded not guiltynd
and elected to be tried by a Provincial Court judge. The trial was set for May 24, 2006. M.Karout appeared as agent for Mr. Chadi for both accused.
Page: 126
[26] On February 23, 2006, Marche provided a sworn statement to the police identifyinghimself as a significant cocaine trafficker in Caines’ network. He stated he received a call fromCaines on September 15, 2005 telling him that an anticipated shipment of cocaine had come inand that he was to attend at McDonald’s residence to pick up his supply. He swore that heattended at the residence as instructed and subsequently provided information to investigatorsthat resulted in the search warrant on the residence.
[27] On April 25, 2006, someone on behalf of Mr. Chadi gave notice both accused intended tore-elect to be tried by a Queen’s Bench justice.
[28] On May 24, 2006, the accused re-elected to be tried by Queen’s Bench judge alone. Thematter was set over to June 29, 2006. Mr. Chadi continued as counsel for both.
[29] In replacement Information No. 060579927P1, sworn on May 17, 2006, McDonald andPeters were charged with possession of cocaine, methylenedioxymethylamphetamine andmethamphetamine for the purpose of trafficking; possession of the proceeds of crime; andvarious firearms offences.
[30] Mr. Chadi appeared in Provincial Court as counsel for the accused on June 28, 2006, atwhich time all charges in Information No. 051089498P1 were withdrawn at the request of theCrown. On the new Information, counts 2 to 11 were withdrawn as against McDonald at therequest of the Crown and he pleaded guilty to possession of cocaine for the purpose oftrafficking. Counts 1 and 3 to 11 were withdrawn in relation to Peters. She pleaded not guilty tocount 2 but guilty to the included offence of possession of methylenedioxymethylamphetamine.
C. R. v. Michael Francis Marche and Debbie Weiss
[31] Marche and Debbie Weiss (“Weiss”) were charged in Information No. 051383628P1,sworn on November 24, 2005, with possession of cocaine for the purpose of trafficking at or nearRed Deer. Marche also was charged with driving a motor vehicle without insurance. Bothdesignated Mr. Chadi as their counsel on that date. A joint submission of the Crown and Defencefor judicial interim release with cash deposits and conditions was accepted.
[32] On December 15, 2005, Constable Gibson conducted an interview with Marche.
[33] A stay or proceedings was entered on December 20, 2005.
[34] In a sworn statement by Marche dated February 23, 2006, which was part of the Crowndisclosure, Corporal Mark Anderson of the RCMP Edmonton Drug Section noted that thecharges against Marche had been stayed and Marche was being asked for a statement as awitness. He advised Marche that, prior to his arrest on November 24 , phone calls involving himth
had been intercepted pursuant to a wiretap authorization and his vehicle had been under
Page: 127
surveillance at the residence of Caines in Calgary. Marche indicated that Mr. Chadi representedhim at the bail hearing and that Mr. Chadi had not acted for him before.
[35] Marche was asked by Corporal Anderson what made him call Mr. Chadi and whether“Jeff” [Caines] had any influence in that regard. Marche answered that Jeff did have influence interms of that decision. He stated, “Uh, we’re always, we’ve been told from day one, if we haveany problems, uhm, this is in regards to everybody that worked under Jeff... [t]o call JakeCHADI.” He said that when he met with Mr. Chadi, Jeff showed up. When asked how he paidfor his legal fees, Marche said: “There supposed to be covered through Jeff. Actually my bail wasto be covered through Jake and Jeff but I got a little impatient.”
[36] The police asked Marche if anyone had told him that money could be laundered throughMr. Chadi. Marche said Jeff had spoken about money laundering and he assumed it was throughMr. Chadi because “everything that Jeff does is through Jake as the lawyer,” but Mr. Chadi’sname had never actually been mentioned in that regard.
[37] An RCMP internal document of member notes of Constable Gibson and Bannerholt datedDecember 15, 2005 re debriefing reports contains the following notes:
- Jake Chadi-lawyer offers to launder cocaine money/proceeds for fee.
- fee was 30% of money laundered-money comes back in form of cheques fromlaw office.-1 option. explained by things such as inheritance.
- this only offered to certain clients of Chadi.
- clients do use Jake Chadi for money laundering.
D. R. v. Harry Armstrong Breakell, Jeremy William Cardinal and Melissa DawnShephard
[38] Harry Armstrong Breakell (“Breakell”), Cardinal and Melissa Dawn Shephard(“Shephard”) were charged in Information No. 060074796P1, sworn January 18, 2006,withpossession of cocaine, marihuana, cannabis resin and ecstasy for the purpose of trafficking, andpossession of the proceeds of crime, all at or near Fort McMurray, Alberta.
[39] The police allege that Cardinal was a trafficker in Caines’ network and the drugs found atthe residence where he was arrested were the property of Caines and being stored and distributedfor him by Cardinal.
[40] The accused were granted judicial interim release that day. Mr. Chadi acted as counsel forall three. In recognizances taken by Cardinal and Shephard on January 19, 2006, Mr. Chadi wasshown as assignee. Cardinal and Shephard executed assignments of cash deposit in favour of Mr.
Page: 128
Chadi on that date. Mr. Chadi also was shown as assignee in amended recognizances takenJanuary 24, 2006.
[41] On January 24, 2006, the matter was adjourned to February 14, 2006 for election andplea. A. Gill appeared as agent for Mr. Chadi for Cardinal and Shephard and as counsel forBreakell. On January 30, 2006, Cardinal and Shephard designated Mr. Chadi as counsel. Thematter was again adjourned on February 14th to March 14 . K. Wolff appeared on both dates asth
agent for Ashok Gill for Cardinal and Shephard and as designated counsel for Breakell. Thematter was further adjourned to March 28 , on which date A. Gill appeared as agent for Mr.th
Chadi for all three accused. Mr. Wolff was taken off the record for Breakell. On April 6, 2006,Breakell designated Mr. Chadi as his counsel. Chadi & Co. was listed as assignee in Breakell’srecognizance of that date. Breakell also assigned his cash deposit to Chadi & Co. on April 6 . Onth
July 11, 2006, the accused elected trial by Queen’s Bench judge alone. A. Gill again appeared asagent for Mr. Chadi for the three accused.
[42] On August 14, 2006, Mr. Chadi filled out a statement for all three accused identifyingissues and witnesses for the preliminary inquiry.
[43] On December 21, 2006, W.C.C. Wanda appeared as agent for Mr. Chadi and Mr.Jakeman for the three accused. The January 3 preliminary inquiry was cancelled and the matterrd
was adjourned. On January 9, 2006, there was a Crown re-election to Indictment. A. Gillappeared as designated counsel for the accused. On April 24, 2007, the file was brought forwardto cancel the preliminary inquiry. A. Gill attended as counsel of record for the accused. OnJune 12, 2007, G. Smith appeared as agent for A. Gill for Breakell and as agent for Mr. Chadi forthe other two accused. A. Gill was shown as counsel of record for the three accused on June 26th
and December 11, 2007. The preliminary inquiry was held on January 7, 2008 and the accusedwere ordered to stand trial. A. Gill acted as Defence counsel.
[44] Cardinal, Breakell and Shephard were indicted (No. 060074796P1) on January 28, 2008.They were arraigned on February 1, 2008. A. Gill appeared as counsel. Cardinal pleaded guilty tocounts 1, 2 and 7. All counts against Breakell and Shephard were withdrawn.
E. R. v. Cal Derrick Gregoire
[45] In Information No. 061302865P1, sworn on or about October 8, 2006, Gregoire wascharged with assault, resisting a police officer, giving a false name to a police officer andobtaining a taxi by fraud, all at or near Fort McMurray, Alberta.
[46] On November 6, 2006, Gregoire designated Ashok Gill as his counsel. J. Webb appearedas agent for A. Gill for Gregoire on that date to reserve plea. On November 27, 2006, trial wasscheduled for March 14, 2007. On March 12 , G. Johnson appeared for G. Deboe, new counselth
for Gregoire. The trial date was cancelled and the matter was adjourned to March 28 . A. Gillth
Page: 129
was taken off the record on that date and Gregoire entered a plea of not guilty. The trialsubsequently was set for August 28 .th
[47] On August 28, 2007, counts 1 and 4 were dismissed and Gregoire pleaded guilty oncounts 2 and 3. Count 5 was withdrawn.
F. R. v. Charles Weston Flight and John Norman Caines
[48] Flight and John Norman Caines were charged in Information No. 061444063P1, swornNovember 24, 2006, with conspiring together and with Caines, Marche, Josh Penton, NicholasBela Van Den Hurk and persons unknown to traffic in cocaine between October 18 and 29, 2005and with having in their possession proceeds of crime. Flight was further charged withpossession of cocaine and cannabis marihuana for the purpose of trafficking.
[49] Caines and Alcantara understand that the theory of the prosecution involving Flight andJohn Caines is that on October 27, 2005, Flight was in possession of cocaine and marijuana forthe purpose of trafficking. His involvement in transporting these substances was in furtherance ofa conspiracy to distribute cocaine. Flight acted on behalf of Caines, the principal in a cocainedistribution network responsible for supplying cocaine and other drugs to major traffickers in theFort McMurray region. Among Flight’s responsibilities was the gathering of funds from themajor distributors and transporting and delivering cocaine to these traffickers. John Caines, thefather of Jeffrey Caines, was involved in the conspiracy during the same time frame as Flight andworked in concert with him in relation to the gathering and accounting of money from people inCaines’ network of traffickers.
[50] On November 30, 2006, John Caines designated Mr. Chadi as his counsel.
[51] On December 1, 2006, M. Karout appeared as agent for Mr. Chadi for both accused, whoreserved their elections. John Caines was remanded into custody. A warrant was issued for thecommittal of Flight as he had not complied with the conditions of his release. Flight was releasedon recognizance taken on December 7, 2006. Chadi & Co. was listed on the recognizance asassignee of the $7,500 cash bail deposit. On December 12, 2006, Flight designated Mr. Chadi ashis counsel.
[52] On April 23, 2007, both accused elected trial by Queen’s Bench judge alone. Thepreliminary inquiry was set for March 8, 2008. A. Vretner appeared as agent for Mr. Chadi forboth accused.
[53] On June 14, 2007, Anderson P.C.J. wrote to Crown and Defence counsel confirming eachof their retainers. He referred to Mr. Chadi as counsel for Caines, Knapczyk, Flight and JohnCaines. He wrote:
Page: 130
Mr. Chadi has advised the Court that he has satisfied himself he is not acting in aconflict of interest and as the consent of each of his four clients to act for theother. The Crown is not alleging a conflict of interest which I understand toinclude an implicit representation that the Crown does not foresee calling any oneof the four accused against any of the others, with some being charged on separateinformations.
[54] On February 20, 2008, Kerby P.C.J. granted a consent order releasing Flight from custodyon the charges in the Information.
[55] On February 22, 2008, the Crown addressed Anderson P.C.J. with a possible conflict ofinterest in terms of Mr. Chadi representing both accused. The matter was adjourned so that bothaccused could be present.
[56] On March 7, 2008, the Court was advised that the accused had seen independent counsel.Mr. Chadi advised that he would not act for the accused at the preliminary inquiry. The matterwas adjourned so the accused could retain new counsel and to set a new date for the preliminaryinquiry. On March 10 , Wheatly P.C.J. seized himself on all preliminary applications relating toth
the accused until the matter proceeded.
[57] The accused had still not retained new counsel by March 25, 2008. Mr. Chadi wasremoved from the record as counsel for John Caines on March 31, 2008. A. Juneja appeared as afriend for John Caines, although he had not yet been retained as counsel. The preliminary inquirywas scheduled for January 5, 2009.
[58] On April 1, 2008, Flight, acting for himself, re-elected trial by Provincial Court judge andpleaded guilty to count 1 on an agreed statement of facts. On September 15, 2008, Flight wassentenced on count 1 and counts 2 to 4 were withdrawn at the request of the Crown.
[59] On November 24, 2008, the court was advised an agreed statement of facts had beenprepared in relation to the charges against John Caines. A. Juneja appeared as counsel for JohnCaines. As a result, the time set for the preliminary inquiry was reduced to one week. Counts 1and 2 against John Caines were withdrawn by the Crown on January 5, 2009.
G. R. v. Ricco King, Farhan Sattar, Kamran Sattar, Mark Andrew Hoskins andMelissa Diane King
[60] Ricco King, Farhan Sattar, Kamran Sattar and Hoskins were charged in Information No.061444048P1, sworn November 24, 2006, with conspiring together and with Caines, Marche andpersons unknown to traffic in cocaine between October 28, 2005 and December 17, 2005.Melissa Diane King was charged with possession of proceeds of crime on November 23, 2005.Hoskins was further charged with possession of the proceeds of crime between October 31, 2005and November 23, 2005.
Page: 131
[61] On December 1, M. Karout appeared as agent for Mr. Chadi for Hoskins. His plea wasreserved. On December 7, 2006, Hoskins signed an assignment of cash deposit of $10,000 toChadi & Co. He designated Mr. Chadi as his counsel on December 12 . Chadi & Co. was listedth
as the assignee in the recognizance for Hoskins taken on that date. Mr. Chadi or an agent actingfor him appeared for Hoskins on January 29, 2007, February 26, 2007, April 23, 2007, May 31,2007 and July 23, 2007. A change of venue application on the latter date was successful and thematter was transferred to Calgary.
[62] On August 8, 2008, John James, counsel for Ricco and Melissa King, having revieweddisclosure, wrote to Ms. D. Espeut of the Crown, with a copy to Mr. Chadi, raising the issue ofMr. Chadi’s continuing representation of Hoskins. He asked why the Crown had not taken stepsto seek to remove Mr. Chadi given the obvious conflict of interest given his prior representationof proposed Crown witnesses Marche and Weiss with respect to matters directly related to thecharges before the Crown. He suggested that he should be advised if the witnesses had waivedthe conflict. If they had, he took the position that their waiver also involved waiving theirsolicitor-client privilege with Mr. Chadi. In any event, he stated that Marche and Weiss’statements to the Crown and others contained clear waivers of their solicitor-client privilege andhe advised he might seek production of Mr. Chadi’s file by way of a third party recordsapplication unless the Crown requested and produced them. If the Crown waived the conflict,Mr. James advised he would bring an application to have Mr. Chadi disqualified fromrepresenting Hoskins.
[63] The preliminary inquiry was held on September 15 to 17, 2008. Mr. Chadi appeared ascounsel for Hoskins. Mr. Chadi advised Veldhuis P.C.J. that his office had had dealings withMarche and Weiss, the two civilian witnesses who were to testify at the preliminary inquiry,when they were accused persons in Red Deer and Fort McMurray. He indicated he was acting forCaines in the Koker A prosecution in Edmonton. He informed the Court that in terms of thatprosecution, an independent counsel cross-examined Marche and Weiss on Caines’ behalf. Headvised that if Caines was called by certain of the accused to testify in the preliminary inquirybefore the Court, he would be in an untenable position. He said that the issue was raised byHoskins. Judge Veldhuis stated: [s]urely you had knowledge that these were potential witnesses,because you would have received disclosure. It has been pre-trialed. You must have known.” Mr.Chadi said he knew Marche and Weiss were witnesses in this matter and he would have nodifficulty in that regard. It was implied he did not realize Caines might be called by the Defence.He indicated that Hoskins did not wish him to continue as his counsel. Hoskins addressed theCourt and said he became aware of the situation that morning.
[64] Mr. James clarified that Mr. Chadi previously had acted for Marche and Weiss withrespect to the alleged conspiracy and predicate offences before the Court and the Crown intendedto call them as witnesses. He offered his opinion that it would have been inappropriate forindependent counsel to cross-examine those witnesses. Also, he indicated that he did not believeMarche and Weiss had waived the conflict. He said that at the preliminary inquiry on Koker A in
Page: 132
Edmonton, Marche clearly felt uncomfortable with Mr. Chadi’s presence in the courtroom as hedescribed an incident where Mr. Chadi was discussing something with Caines. Mr. Jamesinformed Judge Veldhuis that he raised the issue with the Crown some time ago. He submittedthat the conflict issues had been apparent for a long time and the Crown should have dealt withthose issues at the earliest opportunity. Mr. James also noted that Mr. Chadi represented Caines,who was an unindicted co-conspirator, adding to the potential for conflict. He did concede theconflict issue was not raised in any of the pre-trial conferences since there is a decision fromformer Mustard P.C.J. that only the preliminary inquiry judge would have jurisdiction to dealwith the issue. Mr. James raised the prospect that Mr. Chadi could be called as a witness for theDefence as there was an allegation by Marche that Mr. Chadi may have participated in theconspiracy.
[65] Mr. Lord, representing Farhan Sattar, supported Mr. Chadi’s application to withdraw andsuggested Hoskins could not have been properly represented up to that point. He noted thatMarche was likely to give evidence against Hoskins and his own client. He pointed out thatCaines was the alleged recipient of all the drugs at issue in the proceeding. He also noted thatCorporal Anderson was the principal Crown witness and was the lead investigator and alsointerviewed Marche and Weiss. He noted that Corporal Anderson put the suggestion to Marchethat there was a retainer with Mr. Chadi to launder the proceeds of the conspiracy. He suggestedthe conflict arose from the time Mr. Chadi went on record as counsel for Hoskins.
[66] The Crown advised that going into the proceedings that day, she was aware only of theMarche/Weiss issue and had been satisfied it could be dealt with as it had been in the Koker Apreliminary inquiry with the agreement of the Crown by having independent counsel cross-examine them. She said it was clear from the bail hearings that these would be importantwitnesses and it was also clear from disclosure. She indicated the Crown did not intend to callCaines. However, she conceded if he was called by the Defence, it would put Mr. Chadi in aconflict position.
[67] Judge Veldhuis granted Mr. Chadi’s application to withdraw as counsel on September 17,2008. An application by Hoskins for an adjournment of the matter was granted on September 17,2008 with respect to all accused.
[68] On December 12, 2008, Mr. Chadi is shown on the endorsements as counsel for Hoskins.On December 29, 2008, S. Virk appeared for Hoskins but said Mr. Chadi was still on the record.Hoskins, represented by Virk, pleaded guilty to counts 1 and 3 on February 5, 2009 and wassentenced.
