R. v. Caines, 2011 ABQB 82

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 (

a) Inherent time requirements of the case ....................... Page: 35 (

b) Actions of the Applicants ............................................... Page: 36 (

c) Actions of the Crown ....................................................... Page: 37 (

d) Limits on institutional resources ................................... Page: 37 (

e) Other reasons for delay .................................................. Page: 38 4. Prejudice to the Accused ............................................................ Page: 38 5. Balancing ...................................................................................... Page: 39 V. Analysis................................................................................................................. Page: 39 A. Length of the Delay.................................................................................. Page: 39 B.

Waiver....................................................................................................... Page: 39 C. Reasons for the Delay............................................................................. Page: 39 Stage 1: November 24, 2006 (charge) to October 31, 2007 (end of intake period) Page: 41 (

a) Arguments of the parties ................................................ Page: 41 (

b) Decision on Stage 1 ....................................................... Page: 42 Stage 2: November 1, 2007 to April 6, 2008 (day before start of Koker A preliminary inquiry) ....................................................................................................... Page: 43 (

a) Events ............................................................................... Page: 43 (

b) Arguments of the parties ................................................ Page: 43 (

c) Evidence of Sherry Stasiuk ........................................... Page: 46 (

d) Decision on Stage 2 ....................................................... Page: 47 Stage 3: April 7, 2008 (start of preliminary inquiry) to July 14, 2008 (committal to stand trial) ....................................................................................................... Page: 49 (

a) Events ............................................................................... Page: 49 (

b) Arguments of Caines ...................................................... Page: 49 (

c) Decision on Stage 3 ....................................................... Page: 49 Stage 4: July 15, 2008 (day after committal to stand trial) to September 5, 2008 (adjournment request) ......................................................................................... Page: 50 (

a) Events ............................................................................... Page: 50 (

b) Arguments of the parties ................................................ Page: 50 (

c) Decision on Stage 4 ....................................................... Page: 50 Stage 5: September 6, 2008 (day after adjournment request) to October 24, 2008 (setting of trial dates) ..................................................................................... Page: 51 (

a) Events ............................................................................... Page: 51

(

b) Facts in the present case relevant to the conflict issue Page: 51 (

c) Facts relevant to the conflict issue relating to other cases in which Mr. Chadi acted as defence counsel for unindicted co- conspirators and an intended witness in Koker A ........................................................... Page: 57 (

d) Arguments of the parties ................................................ Page: 60 (

e) Comments on previous representation of witness and the conflict issue ........................................................................................... Page: 64 (

f) Comments on unindicted co-conspirators and the conflict issue Page: 67 The Flight and John Caines Conflict.............................. Page: 68 The Hoskins Conflict in Koker C.................................... Page: 69 (

g) Comments on co-accused conflict issue .................... Page: 72 (

h) Responsibility for raising the conflict issue ................. Page: 75 (

i) Evidence of Carol Zelant ............................................... Page: 78 (

j) Decision on Stage 5 ....................................................... Page: 78 Stage 6: October 25, 2008 (day after trial date scheduled) to November 10, 2009 (trial to commence) ................................................................................... Page: 79 (

a) Events ............................................................................... Page: 79 (

b) Arguments of the parties ............................................... Page: 80 (

c) Decision on responsibility for delay ............................. Page: 80 Stage 7: November 11, 2009 (day after trial to commence) to September 26, 2010 (day before commencement of delay motion) ............................................... Page: 82 (

a) Events ............................................................................... Page: 82 (

b) Arguments of the Parties ............................................... Page: 84 (

c) Chronology of use of put away feature of CenCIS I and II equipment at Special I, K Division, RCMP, Edmonton ................................... Page: 84 (

d) When use of the put away feature should have been disclosed Page: 87 (

e) The due diligence argument: the Applicants ’ responsibility for late disclosure ........................................................................................... Page: 88 (

f) Decision on Stage 7....................................................... Page: 91 Stage 8: September 27, 2010 (commencement of delay motion) to June 16, 2011 (anticipated end of trial) .................................................................................... Page: 92 (

a) Events ............................................................................... Page: 92 (

b) Arguments of the Parties ............................................... Page: 92 (

c) Decision on Stage 8 ....................................................... Page: 93 D. Prejudice to the Applicants..................................................................... Page: 93 1. Mark Jeffery Caines .................................................................... Page: 93 (

a) Evidence and arguments of Caines ............................. Page: 93 (

b) Arguments of the Crown ................................................. Page: 99 (

c) Decision on prejudice to Caines .................................. Page: 99 2. John Reginald Alcantara ........................................................... Page: 100 (

a) Evidence and arguments of Alcantara ...................... Page: 100 (

b) Arguments of the Crown ............................................... Page: 102 (

c) Decision on prejudice to Alcantara ............................ Page: 102

3. Alan Peter Knapczyk ................................................................. Page: 104 (

a) Evidence and arguments of Knapczyk ...................... Page: 104 (

b) Arguments of the Crown ............................................... Page: 105 (

c) Decision on prejudice to Knapczyk ............................ Page: 105 E. Balancing................................................................................................ Page: 106 1. The purposes of s. 11(b) ........................................................... Page: 106 2. The Morin factors ...................................................................... Page: 107 3. Arguments of the parties ........................................................... Page: 109 4. Balancing in this case ............................................................... Page: 111 (

a) Overall period of delay ................................................. Page: 111 (

b) Attribution for delay ....................................................... Page: 111 (

c) Prejudice ........................................................................ Page: 114 (

d) Complexity ..................................................................... Page: 114 (

e) Seriousness of the charges ......................................... Page: 114 5. Conclusions on balancing ......................................................... Page: 116 I. Introduction [ 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 on unreasonable delay pursuant to ss. 7, 11(

b) and 24(1) of the Charter . The Crown stresses that this is not an application for s. 24(1) relief based on a breach of the right of disclosure. Nor is it an application based on abuse of process. [ 2 ] This prosecution has resulted from a joint forces police investigation involving the Edmonton and Fort McMurray Drug Sections of the Royal Canadian Mounted Police (RCMP) as well as the Edmonton Police Service (EPS). The investigation, referred to as Project Koker, also engaged the Edmonton Integrated Proceeds of Crime Unit (EIPOC). [ 3 ] The investigation commenced on or before February 7, 2005.

Throughout the course of the 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 under s. 186 of the Code , designated as follows: 1.

WT1709 granted by Slatter J. on August 23, 2005, and valid for 60 days up to and including October 21, 2005; 2. WT1712 consisting of two authorizations granted by Slatter J. on October 17, 2005, each valid for 60 days up to and including

December 16, 2005; and, 3. WT1713 consisting of two authorizations granted by Slatter J. on December 14, 2005, each valid for 60 days up to and including February 13, 2006. [ 5 ] On November 24, 2006, two separate Informations were sworn (Docket Nos. 061444279P1and 061444l47P1). Alcantara was charged in both. Caines and Knapczyk also were charged in Information No. 061444279P1. On November 26, 2006, Alcantara and Knapczyk were 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 for Information No. 061444279P1. Caines, Alcantara and Knapczyk were jointly charged in this new Information 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 charged in a separate count with a criminal organization offence contrary to s. 467.13 of the Code . 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 for Information No. 061444147P1.

In this Information, Alcantara was jointly charged with Beau Michael Yakimishyn, Sean David Critch, Derek Albert Ezekiel and Nicholas James Roberts with conspiracy to traffic in cocaine contrary to s. 5(1) of the CDSA and s. 465 (l)(

c) of the Code . The four 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 charged in multiple separate proceedings. Ricco King, Farhan Haider Sattar, Kamran Sattar and Melissa Diane 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-trial motions 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 “Koker C.” [ 9 ] The disclosure received by the Applicants consists of over 8,317 documents totalling in excess of 400,000 pages. This material was provided to the Defence predominately in electronic form by way of an external hard drive and multiple DVDs.

The narrative logs of the intercepted private communications contain 51,827 sessions totalling 59,530 pages. All disclosure provided to one counsel in the Koker prosecutions was provided to all, whether relevant to the particular Koker 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 gave notice that it would seek to introduce 464 intercepted private communications into evidence at trial.

A disc containing the intercepted private communications and four binders containing the transcripts in hard copy have been entered as exhibits in the trial, although as a result of late disclosure, 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,” which was adopted by the Crown and largely adopted by Caines. Knapczyk adopted the judicial history accepted by Caines. Caines and Knapczyk have provided additional information that pertains to them. A. Provincial Court Proceedings November 26, 2006

[ 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 judicial interim release on Information No. 061444279Pl, and was detained in custody. He retained counsel 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 denied judicial 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). Alcantara was represented by Chady F. Moustarah throughout the show cause hearing. [ 15 ] Knapczyk was released on recognizance on December 15, 2006, and was represented by Mr. 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 process was transferred from the original Information. Mr. Gill, appearing as agent for Mr.

Chadi for Caines, indicated that a Designation of Counsel had been signed by Caines but had not yet been filed. Mr. Gill also appeared as agent for Mr. Chadi for Knapcayk. Election and plea were reserved to February 26, 2007. [ 18 ] Mr. Moustarah again appeared for Alcantara. He advised the Court he had received a DVD 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 by agreement of counsel to May 1, 2007. 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 to conduct consecutive preliminary inquiries, with the prosecution in Koker B proceeding first. The following exchange took place between the Court and Mr. Rice respecting the scheduling of dates:

MR. RICE: . . . I can advise the Court that pursuant to this we need to set some Preliminary Inquiry dates. I’ve -- our department has canvassed with Judge Lefever with regard to opening up a courtroom. The idea is going to be to open up a courtroom in late September, October, and run what I would submit to be the first 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 the carriage 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 as well. He’s a stand-alone but it’s on the same wiretap affidavit. So we’re going to try and do that, set up the dates. [ 22 ] All counsel agreed to a further brief adjournment to May 4, 2007 for the purpose of obtaining dates for the preliminary inquiries. May 4, 2007 [ 23 ] Caines, Alcantara (with D. Song acting as agent for Mr.

Moustarah) and Knapczyk appeared before Wong P.C.J. on May 4, 2007, at which time they made elections for trial by judge alone and entered not guilty pleas in both prosecutions. Gregory Rice appeared again for the 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, was scheduled for February 25, 2008 to April 4, 2008, with a pre-preliminary inquiry conference scheduled 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. June 1, 2007 [ 24 ] The hard drive containing the majority of disclosure was delivered to Mr. Chadi, counsel for 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 case management conference, the purpose of which was to ensure that issues had not arisen which would prevent the preliminary inquiries from proceeding on the scheduled dates. [ 27 ] Alcantara’s present counsel, Clayton Rice, confirmed that he had been retained by Alcantara on Koker A, having become counsel of record for Alcantara in Koker B on September 27, 2007. [ 28 ] Various issues were discussed, including the status of disclosure, witness lists and admissions. The Court also confirmed that

other pre-preliminary inquiry conferences had been cancelled. [ 29 ] The issue of Mr. Chadi’s conflict of interest was raised by Anderson P.C.J. as Mr. Chadi was representing Caines; John Norman Caines, an alleged co-conspirator; Charles Flight (“Flight”), an alleged co-conspirator; Knapczyk; Mark Andrew Hoskins (“Hoskins”), an alleged co-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 present matter (Information No. 070060157P1) before Day P.C.J.. The Crown opposed his bail application. November 22, 2007 [ 31 ] Caines and Knapczyk signed the first set of consents regarding their joint representation by Mr. Chadi and certified they had received independent legal advice on the issue. December 7, 2007 [ 32 ] Caines’ bail hearing concluded on December 7 th with Caines being granted bail.

January 25, 2008 [ 33 ] Caines’ bail order was signed after a number of changes were made, some of which were consented to and some opposed by the Crown. Bail consisted of $61,250.00 in cash and securities 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 and Stewart F.

Brownlee signed the Certificate of Independent Advice. [ 37 ] Knapczak signed an amended Consent form regarding representation by Mr. Chadi and Ajay Juneja signed the Certificate of Independent Advice. February 25,2008

[ 38 ] The preliminary inquiry in Koker B commenced before Malin P.C.J. on replacement Information No. 071521 769P1. Prior to the preliminary inquiry, Nicholas James Roberts was added as an accused in that Information and on February 21, 2008, a stay of proceedings was entered respecting the accused Derek Albert Ezekiel. March 4, 2008 [ 39 ] A further case management conference was initiated by Anderson P.C.J. to address whether a conflict of interest existed by virtue of Mr. Chadi acting for both Caines and Knapczyk in Koker A.

The Court provided the following background to the issue for the benefit of counsel for Alcantara, who had not been aware of the conflict which had arisen in a related proceeding regarding John Norman Caines and Flight, who had been charged separately: THE COURT: Okay. Here is what brought us here, as I mentioned, an issue of conflict arose 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 are jointly charged with a conspiracy and some other charges, I believe.

That preliminary inquiry was scheduled to commence on Monday of this week, and that commencement date has been put over a week while the issue of conflict is sorted out. The -- and it may or may not be able to proceed.

It punctuated, however, the fact that if a conflict rears its head in actuality in proceedings, particularly at the eleventh hour, it can cause cases to go sideways very quickly, and that is particularly of concern where accused persons are in custody and particularly where the accused persons in custody are not the person to whom the conflict relates, and for that reason, I wanted to address as quickly as possible most specifically any question of conflict that could exist in this prosecution because Mr. Chadi acts for -- MR. CHADI: Knapczyk and Caines.

THE COURT: -- two persons in relation to this same prosecution. Now, I do not believe 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 arisen in the other matter, that the Crown has turned their mind more closely to whether from 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 that over as well.

So -- and that is something that in my view really should held or should be dealt with in the presence of the accused. So that, Mr. Rice, is the history of how we got here. You obviously have an interest in this issue because Mr. Alcantara would be affected obviously if matters had to be adjourned. [ 40 ] The case management conference was adjourned to the following day for continuation so that the three accused could be present. March 5, 2008 [ 41 ] The case management conference in this matter resumed.

Counsel for Alcantara took the position that although the potential conflict of interest issue more directly affected Caines and Knapczyk, “...there is always a potential effect on my client.” The following exchange then took place 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 the Crown -- well, what is the Crown’s position as it relates to any potential conflict in this matter...

MR. HRABCAK: ... [W]ith respect to Mr. Jeffrey Caines and Mr. Knapczyk they’re in a slightly different situation than Mr. Flight and Mr. John Caines. As I see 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 any type of defence that they wish to present.

So in that aspect I don’t foresee a conflict that would arise...The waivers tend to cover off potential or at least these two accused’s knowledge that such a situation could arise or in the future that they’ve accepted that they wish to waive their rights in this particular situation. So I 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 same fashion as what happened in Mr. Flight and Caines’ and I don’t -- I would expect that 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 any risk of conflict of interest compromising the ability of this to proceed in a timely way? MR. CHADI: Thank you, Your Honour. Your Honour, in the related case unfortunately the appearance reared its ugly head and it was clarified by this Honourable Court very clearly as to how and when it can arise. Obviously this Court 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 could happen even in Flight and in Caines, but it did and obviously we’re extremely careful in how we assess this second matter, but Mr. Hrabcak relatively and reasonably put the position before the Court. Now again we can never predict with any great accuracy, but you have my undertaking that every precaution in this regard will be undertaken so that this matter can move forward. April 3, 2008 [ 43 ] The evidence and the submissions of counsel on committal were concluded in the preliminary inquiry before Malin P.C.J. in Koker B.

The Court reserved its decision on committal to April 16, 2008. April 7, 2008 [ 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 for arraignment 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 judicial interim 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 the preliminary inquiry in Koker A. The Court reserved its decision on committal and the case was adjourned 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 a cash deposit in the amount of $25,000 and security having a value of $125,000. The conditions of release included surrender of his passport, reporting in person twice a week and a 24-hour house arrest provision with a knock-and-respond clause.

Alcantara did not enter into the recognizance until September 9, 2008, after being granted judicial interim release on September 5 th by Philp 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 scheduled for arraignment in the Court of Queen’s Bench on August 29, 2008. Counsel for Alcantara advised 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 cash deposit in the amount of $50,000. The conditions of release included a 24-hour house arrest provision with a knock-and-respond clause, a geographical mobility limitation and a requirement that he surrender into custody at the Edmonton Remand Centre (ERC) 96 hours before any trial or

summary disposition. September 9, 2008 [ 51 ] Alcantara entered into recognizances respecting each bail order and was released from pre-trial custody. All outstanding proceedings up to that date in the Provincial Court were concluded 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 of Queen’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 trial judge 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 appeared as 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, was not opposed to that suggestion but requested that Sanderman J. ask the Chief Justice to appoint a trial 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 years now.”

[ 54 ] The Court adjourned the arraignment to June 27, 2008, and advised counsel that during the interim he would arrange for the appointment of a trial judge and requested that all counsel be prepared 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 trial judge had still not been assigned. Crown counsel suggested that a bifurcated process be adopted whereby pre-trial motions could commence with warrantless search motions. The suggestion was to 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 for the Crown: THE COURT: All right.

So the suggestion is let’s do that in October, the warrantless searches, come back in December after you’ve got a ruling on that, do your procedural wrangling, you know, to -- or get deadlines even in October for notice at some time, come back and then decide in December how much time you’re going to need to fight about other matters. MR. G. RICE: That’s correct. [ 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 place between the Court and Crown counsel: THE COURT: Well, if anything, and Mr. -- Mr. Danyluik is here today. I’m going to -- I’m not throwing any arrows his way, but talk to Justice Macklin about it. It’s a crappy system, you know, when you -- when you do little pieces like that. He’s involved in something right now with -- well, we have two Rices here, the two Tchirs 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 horror show for the scheduling of the Court because out -- the Court

schedule comes out in 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 to impose my will upon you, but I’m just trying to do something that’s efficient for the Court and efficient for all of you so that if you know it’s going to go in February, 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 be the most expeditious way to deal with it, but if-- THE COURT: Yeah, but, well, only -- only if-- only if the warrantless searches don’t go in and the -- and the case collapses, then that’s fine, but that’s not going to happen here. You know, those types of trials where you decide one matter that’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, some here?

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 was scheduled to return before Sanderman J. on September 5, 2008 for a case management conference. August 28 and 29, 2008 [ 58 ] The Crown filed the Indictment in Koker A. The first appearance for arraignment came before 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, who appeared as agent for counsel for Alcantara: MR. RICE: My Lady, there’s been discussion between Mr. Chadi and Mr. Rice with respect to this date. Trying to get a hold of Mr. Hrabcak with respect to setting up a proper date. There is also another file related to this, a different file with 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 I am 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, is going to -- remains in custody, with no immediate plans to bail application, so I am a bit concerned with setting it over. MR. RICE: When I spoke to Mr. Hrabcak who is really in charge of this particular application, this is a project called Koker A, and I can tell that you the pre-trial motions for Koker B, which is my case, are set from February to May or June of 2009. So it is a bit of a scheduling issue. I can tell you that the preliminary inquiry on this matter, Mr.

Hrabcak’s, so Koker A, was completed just at the end of spring just before summer, so Mr. Hrabcak told me that he didn’t expect that defence counsel would be prepared to set dates today. He didn’t have any difficulty 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 from that is he doesn’t have any difficulty with this, and I think it probably would be prudent. It is becoming a bit of a scheduling problem, so it probably would be prudent to put it over to the next arraignment date. . . . MR.

GUBBINS: The accused are involved -- some of them are involved in Koker A 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 the trial co-ordinator to provide their available dates for a long trial so that information would be available to the Court on the return date. Mr. Rice for the Crown further advised the Court that he was 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 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 as agent for Mr. Chadi and advised the Court that Mr. Chadi was requesting an adjournment for four weeks.

The following exchange took place when the Court inquired whether Mr. Chadi was in a conflict of interest position: THE COURT: Yes. Appeared before Justice Bielby on the 29th, and she suggested you get trial dates, and I see that, is Mr. Chadi acting for two people? Is there a conflict?

MS. KAROUT: I did address that with Mr. Chadi this morning, sir. His instructions to me on behalf of both Mr. Caines and Mr. Knapczyk was to ask that this matter go over for a period of four weeks. I believe there was some discussions to be taken between himself and Mr. Hrabcak eventually resolving the Caines matter and should that not be resolved then, of course, Mr. Chadi would have to get off the record for one of the two, I believe, if not both, but that was his intention, was to see if we could resolve Mr. Caines’ matters and Mr. Knapczyk would eventually -- would go to trial if that was to be done.

So he is asking for a month to facilitate that with Mr. Hrabcak. [ 62 ] Counsel for Alcantara made the following submissions concerning the potential conflict issue: 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 friend mentioned 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 what Mr. Hrabcak’s feelings are, I don’t know the case, but it is difficult not to see one arising. MR. HRABCAK: Yes.

It--that issue had come up during the prelim and had been discussed 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 to a conflict between Mr. Caines and Mr. Knapczyk or is she referring to a conflict 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 case is about to go south. It will take new counsel months to prepare this, sir. I want you 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 counsel and, “...we’re on the verge of

scheduling dates.” It was suggested that Mr. Chadi be personally present on the next arraignment date to address the conflict of interest issues. The Court agreed and adjourned the arraignment to September 26, 2008. September 15, 2008 [ 64 ] The third prosecution in R. v. King (Koker

C) proceeded to preliminary inquiry before Veldhuis 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 and could 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 and Debbie Weiss, who were Crown witnesses, and as well Mr. Chadi was counsel for Caines, who was an unindicted co-conspirator.

The conflict issues were further summarized for the Court by Simon Lord, Q.C., counsel for Farhan Sattar, as follows: MR. LORD: Mr. Chadi was former counsel for Marche. Marche is the principal civilian accomplice informant witness, is to be that witness on behalf of the Crown. . . . Mr. Chadi is deeply conflicted as to Mr. Marche because of his prior acting for Mr. 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, and although 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 in this proceeding. So the second limb of major conflict with Mr. Chadi is his representation which continues of Mr. Caines. The third limb, in my respectful submission, of conflict with Mr. Chadi is -- is the conflict which arises with Corporal Anderson. . . . Mr. Chadi, unhappily, is conflicted directly with Mr. Anderson because one of Mr.

Anderson’s thrusts - but I have no doubt it was completely unwarranted - but nevertheless a thrust by Anderson in interview with Marche, was a suggestion put to Marche that the habitual retainer which the men in this conspiracy had of Chadi went beyond retainer of counsel and extended to a retainer to launder the proceeds of the conspiracy. And that, in other words, puts Mr. Chadi in the horrible position of having to cross-examine the witness who actually has told the Crown and accomplice witness that he believes Mr. Chadi is guilty of a crime.

There is no evidence whatever 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 to consult with new counsel. September 26, 2008 [ 66 ] Alcantara appeared before Clackson J. for arraignment and the scheduling of a trial date in Koker A. Mr.

Chadi appeared for Caines and Knapczyk and advised the Court that he was making an application to be removed as counsel of record:

MR. CHADI: Thank you, My Lord. I was previous counsel -- I’m counsel of record for Mr. Caines and Mr. Knapczyk. That is now changing this morning. I’m applying to get off the record with respect to both of these individuals. I conducted the preliminary inquiry. Mr. Hrabcak and I tried at great lengths to have this matter resolved up to and including yesterday. Unfortunately, the resolution fell apart. I cannot continue to act, and -- and as I trust my friend is of the same position. I have consulted with Mr. Caines. I understand that he’s speaking with Mr. Moreau in that respect. Mr.

Moreau is familiar with -- and as a result, can come up to speed relatively quickly. And I understand that Mr. Juneja had been consulted 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 the following inquiry of Mr. Juneja, who was present: THE COURT: ... Mr. Juneja, what kind of shape are you in before we can set a trial date here? MR. JUNEJA: I’m not prepared to go on the record for Mr. Knapczyk at this point. I have spoken to Mr.

Knapczyk in detail, and there is an extensive amount of disclosure to still go through. Sir, I’m asking for the court’s indulgence to put this matter over for a period of one month to be brought up to speed and to have further 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 of counsel and withdrawal of counsel at this late date is going to squarely put in issue my client’s rights to trial within a reasonable time. We are in a position today to

schedule this matter. Obviously that cannot be done due to new counsel coming on board...So I’m -- I’m in a position where I’m not agreeing with having it adjourned today, because we are certainly ready to proceed and set dates. THE COURT: Okay. In a nutshell, then, you may make an application at some point in the future based on 11(

b) of the Charter is what I hear you saying, and you don’t want to foreclose that opportunity by agreeing to this adjournment. I’ve got 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 to October 24, 2008. 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 for counsel for Alcantara. Mr. Juneja was not prepared to go on the record as counsel for Knapczyk and sought a further adjournment as he had not been retained and had not received the disclosure from 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 to be setting pre-trial dates today. I understand that the dates would have been suitable for Mr. Juneja. We were tentatively looking at setting four months of pre-trial motions commencing November 2, 2009, with potential trial dates starting April 5th, 2010. We’re certainly not -- my client’s in custody. It’s certainly a matter where we’re not prepared to waive any 11(

b) potential rights that he may have. 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. The pre-trial motions were scheduled for November 2, 2009 to March 5, 2010. The trial was scheduled 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 by Knapczyk and to confirm the dates for pre-trial motions and trial. Mr.

Juneja did not appear as a result 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 to Koker A and a designation of counsel had been filed. [ 74 ] Gregory A. Rice appeared again as Crown counsel in the place of Mr. Hrabcak and sought an adjustment of the assigned dates for the pre-trial motions and the trial as a result of police 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 delay caused by the unavailability of police witnesses due to the Olympics. The assigned dates were 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-trial motions in Koker B was changed to February 9, 2009. However, prior to that date, the co-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-trial motions 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 in cocaine 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 credit for pre-trial custody, for a net sentence of seven years and 10 months ( R. v. Yakimishyn , 2009 ABQB 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. May 29, 2009 [ 85 ] Koker A came before Sanderman J. to pick a jury selection date. Mr. Lazin advised the Court that a trial judge had been assigned and efforts were being made to

schedule a pre-trial conference. The case was adjourned to June 19, 2009, in anticipation that the election for mode of 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, as counsel had not been able to arrange the pre-trial conference with the assigned trial judge. It was also expected that resolution of the outstanding issue regarding the election for mode of trial could 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 was scheduled for October 14, 2009 before this Court. The question of whether the case would proceed as a judge and jury election was adjourned to December 18, 2009, with the suggestion that the issue could be addressed before this Court. The Crown also requested that the trial date be adjusted again and it was moved up to April 6, 2010 from April 20, 2010, with the consent of the Defence. September 14, 2009 [ 89 ] Caines, without his counsel of record Gregory C.

Lazin, appeared before Gill J. in regard to Koker A and entered guilty pleas to two counts in the Indictment. Mr. Chadi, who already had withdrawn from the file due to a conflict, appeared with Caines. The Crown did not object to his appearance. 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 convicted and the case was adjourned to September 18, 2009 to

schedule a date for the sentence hearing. September 16, 2009 [ 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 for the 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 to issues 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 a pre-trial conference. I directed that notices of motion regarding pre-trial applications be filed by October 23, 2009, and books of authorities be filed by October 30, 2009.

Following a discussion of various scheduling and other logistical matters, the case was adjourned by agreement of all counsel for the commencement of pre-trial motions on November 9, 2009, at which time it was adjourned to November 10, 2009.

November 9, 2009 [ 96 ] The proceedings in relation to Caines and Koker A resumed before Gill J. The Court was advised that issues had arisen with respect to a document that had been tendered to the Court on September 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 14 th and had entered guilty pleas to two counts in the Indictment.

Crown counsel confirmed that Caines 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 November 12, 2009. Caines’ counsel, Mr. Lazin, was excused from further attendance before this Court. [ 100 ] Counsel for Alcantara and Knapczyk advised the Court that in the absence of their co-accused Caines advancing an application under s. 8 of the Charter , as he had been severed from the case, they were abandoning their s. 7 Charter applications.

The following exchange took 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 we have a considerable period of time here that has now been freed up. If the court was disposed to accelerating the trial date, that is moving it up to an earlier date other than the one that has been scheduled in April and take advantage of this available 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 be able to do that but why wouldn’t we do that? MR.

HRABCAK: There is reasons -- this is primarily an RCMP file. It is an RCMP file. The Olympics take place February and Special Olympics in March and pretty much the majority of available RCMP officers in Alberta and in BC are consumed through the security with respect to the Olympics as a result there is an attempt 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 that I 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 police witnesses for an earlier trial date and it was agreed that the proceedings would be adjourned to November 18, 2009 for Crown counsel to report back to the Court.

Counsel for Alcantara then advised the Court that he had received instructions from Alcantara to offer a plea of guilty to Count #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 conspiracy between the dates of July 1 st , 2005 and March 31 st , 2006 contrary to

Section 465 (l)(

c) of the Criminal Code , and I can advise you that in respect of that count I have received instructions from Mr. Alcantara to offer a plea of guilty to the court in 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 plea to 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 discuss with myself. I mean if he wants to plead guilty, put on the record and then continue on with the trial on the other counts that’s something that the Court can entertain but if my friend is saying he wishes to plead guilty to Count 1 on the condition that the Crown withdraw the remaining counts that’s something that he and 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 agreed statement 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 to withdraw 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 requesting an adjournment for another week as he needed more time to determine whether witnesses could be available to commence the trial on December 7, 2009. Following a discussion about scheduling issues and the unavailability of RCMP witnesses due to the Winter Olympics, the case was adjourned to November 30, 2009 due to the unavailability of the Court.

Counsel for Alcantara asked whether Crown counsel had a response to the offer which Alcantara had made on November 10, 2009 to plead guilty to the conspiracy count on the condition that the remaining counts be withdrawn. Mr. Hrabcak replied that the Crown would not accept that plea offer at that time , “...although I am still considering it.” He advised that he would have an answer by the following Tuesday. November 30, 2009 [ 105 ] Koker A resumed before this Court.

Crown counsel advised the Court that he could begin calling evidence in the trial on December 10, 2009, with a proposed continuation date of January 18, 2010. He then summarized the witness availability issues as follows: MR. HRABCAK: After that I cannot give any assurance at all that I would have witnesses in February or March given the Olympics.

I will still attempt to do so based upon the dates that we’ve discussed in court, that being the first two weeks of February, and then I believe all of March is available; however, I’m not available at the last week of March, so the first three weeks of March I would consider looking to get some witnesses, although I cannot guarantee that. So we may have an absence of evidence in February and March and then recommence in April. [ 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 adjourned to 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 global term of 14 years imprisonment less credit for time served in pre-trial custody of five years and two months for a net sentence of eight years and 10 months. All outstanding matters in that prosecution were then concluded.

The remaining chronology of the judicial history deals solely with 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 to Re-Elect. He was then arraigned, formally re-elected to be tried by judge alone and entered a guilty plea to Count 1 (conspiracy) in the Indictment. Alcantara maintained his pleas of not guilty to trafficking in cocaine and the criminal organization count.

Following the admission of facts establishing the elements of the offence of conspiracy, the Court accepted Alcantara’s guilty plea and entered a conviction. Crown counsel advised the Court that he intended to continue with the trial 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, 2010 for further continuation.

January 13, 2010 [ 111 ] On January 13, 2010, Crown counsel advised the Defence about new disclosure regarding implementation of the live monitoring requirement in certain of the wiretap authorizations (the put away issue). January 20, 2010 [ 112 ] The trial resumed with Defence counsel making an application for an adjournment as a result of the new disclosure which had been received from the Crown. Counsel for Alcantara advised the Court as follows: MR. RICE: Last week, on January the 13 th , or at least by way of a letter dated January 13 th , 2010, from Mr.

Hrabcak, on behalf of the Crown, we were made aware of an issue that the Crown has become aware of regarding the implementation of the wiretap authorizations in this case. It pertains to the police

interpretation and practice with respect to the implementation of what we call a live monitoring requirement in the wiretap authorizations, and we have been advised that it potentially may affect 71 of the evidentiary intercepted private communications that form the part of the foundation of the prosecution’s case. We have been provided to this point with electronic disclosure of session reports prepared by the RCMP, my understanding, at the request of the Crown.

And I have only had the opportunity of briefly reviewing the various reports contained in the electronic disclosure, which, certainly, in total, exceed a couple of thousand pages of material. I understand, in speaking with Mr. Hrabcak, that the Crown has requested further material related to this issue, which they’ve not yet received but anticipate receiving, so we are expecting further disclosure on this point.

. . . Given this development, and given the amount of material that we now have to assess by way of this new information, I expect that we would not be in a position to proceed further until at least April. [ 113 ] The adjournment application triggered the following exchange between the Court and Crown 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? I mean, isn’t it conceivable that some of this -- these issues around certain intercepts might be related to -- MR. HRABCAK: Yeah.

Well, certain -- THE COURT: -- the guilty plea that’s been entered, and so consequently, it seems to me that Mr. Rice might want to review his position with respect to everything at this point. MR. HRABCAK: Oh, and I don’t--I don’t take exception with that. Yes, I’d expect that Mr. Rice would be starting, back from the start to determine whether or 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 will need time to make that.

I’m not suggesting that this is something that can be determined overnight, and I’m not taking any exception that Mr. Rice needs some time to deal with that. [ 114 ] The Defence agreed to proceed with the evidence of one additional Crown witness without prejudice to any application which might be made arising out of the new disclosure. The trial 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 and counsel 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 evaluate the consequences to him of the late disclosure. April 6, 2010 [ 117 ] The proceedings resumed before this Court with Mr. Lazin advising that Caines would be bringing an application to vacate his guilty plea before Gill J. and then would be bringing an application 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 case reverted 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 Count 1 (conspiracy) pursuant to ss. 7, 11(

d) and 24(1) of the Charter (Motion #2); an application for a judicial stay of proceedings under ss. 7, 11(b), 11(

d) and 24(1) of the Charter based on delay (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 week adjournment pending receipt of the further disclosure. An adjournment to April 20, 2010 was granted. 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 and further prepare. May 18, 2010 [ 123 ] Alcantara and Caines filed a joint notice of motion seeking an order for production pursuant 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), and seeking 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, at the 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 which the Court fixed a “Revised Proposed Pre-Trial Motions and Trial Schedule.” The pre-trial motions were booked to commence on September 1, 2010 and conclude on March 31, 2011, with the trial proceeding April 11, 2011 to June 16, 2011. August 20, 2010

[ 127 ] The disclosure motion resumed, at which time Crown counsel provided an update regarding the status of the Crown’s compliance with the order for production. The Defence indicated it would need time to review the disclosure provided. The proceedings then adjourned to September 1, 2010, which was the date scheduled for the commencement of the application to vacate 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 judicial stay 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 could continue 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 dire hearing as to the relevance and admissibility of session history reports relating to wiretap interceptions 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 right not to be deprived thereof except in accordance with theprinciples of fundamental justice. . . . 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 been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. B.

Section 11(

b) Discussion [135] In R. v. Morin, (SCC), [1992] 1 S.C.R. 771 at paras. 26-31, Sopinka J. set out the purposes of s. 11(

b) of theCharter 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 of accused. A secondary interest of society as a whole has,however, been recognized by 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 to security of the person, (2) the right to liberty, and (3) the rightto a fair trial. The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminalproceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trialincarceration and restrictive bail conditions. The right to 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 the accused.

Society as a whole has an interest in seeing that theleast fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy theconfidence of the public. As observed by Martin J.A. in R. v. Beason (1983), (ON CA), 36 C.R. (3d) 73 (Ont. C.A.):"Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit 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 and society'sinterest will not parallel that of the accused. There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this Courtrecognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up inAskov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trial anddealt with according to the law" (pp. 1219-20).

As the seriousness 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 most apparent when it is sought to absolve persons accusedof serious crimes simply to clean up the docket. The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that some

delay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 1131). While the Court has at timesindicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 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 that applying the factors set out in Morininevitably leads to a detailed examination of particular time periods and the reasons why certain delays occurred, but cautioned that inundertaking this type of analysis, the court should not lose sight of the forest for the trees. [137] In R. v.

Smith, (SCC), [1989] 2 S.C.R. 1120 at para. 28, Sopinka J. confirmed that it is the accused who has theultimate or legal burden of proof on a s. 11(

b) Charter application, although a secondary or evidentiary burden may shift to the Crown,depending on the circumstances of the case. 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. If no satisfactory explanation is given, theCourt can infer the delay was unjustified. Sopinka J. emphasized, however, that it is preferable not to decide a s. 11(

b) application on thebasis of the burden of proof but rather to evaluate the reasonableness of the overall delay having regard to the Morin factors. [138] Sopinka J. advised in Morin at para. 36 that an inquiry into unreasonable delay should be undertaken only if the period of timein question is of sufficient length to raise the issue of reasonableness. If the applicant is in custody, a shorter period of delay will raise theissue. 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, (SCC),[1987] 1 S.C.R. 536 at 548; R. v.

Rahey, (SCC), [1987] 1 S.C.R. 588 at 633; R. v. Kalanj, (SCC),[1989] 1 S.C.R. 1594 at para. 16; Morin at para. 32. Sopinka J. clarified in Morin at para. 35 that “charge” means “the date on which aninformation is sworn or an indictment is preferred.” He also stated (at para. 35) that:

Pre-charge delay may in certain circumstances have an influence on the overall determination as to whether post-charge delay isunreasonable but of itself it is not counted 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 have been 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 rights under s. 11(b), such waiver must be clear andunequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on thoserights... Waiver can be explicit or implicit. If the waiver is said to be implicit, the conduct of the accused must comply with the stringenttest for waiver 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 sufficient to give rise to an inference that the accused has understood thathe or she had a s. 11(

b) guarantee, understood its nature and has waived the right provided by that guarantee. Waiver requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is notturned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Suchconduct may be taken into account under the factor "actions of the accused" but it is not waiver. As I stated in Smith, supra, which wasadopted in Askov, supra, consent to a trial date can give rise to an inference of waiver.

This will not be so if consent to a date amounts tomere acquiescence in the 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 availabilityand reasonable cooperation; it does not, for s. 11(

b) purposes, require defence counsel to hold themselves in a state of perpetualavailability.” [142] In R. v. Koruz (1992), 1992 ABCA 144 , 125 A.R. 161, 72 C.C.C. (3d) 353 (C.A.), aff’d (SCC),[1993] 1 S.C.R. 1134, a case decided after Askov but without the benefit of the reasons in Morin, the Alberta Court of Appeal held thatthe approximately eleven-month delay in that case from arraignment to the first scheduled six week trial date was not an unjustifiablesystemic delay, but in any event the time period had been waived by the defence.

Fraser J.A. (as she then was), for the majority, madethe following comments about waiver at para. 55: The record is clear that Crown counsel discussed the issue of trial dates with the defence counsel for each defendant and agreed on a datebefore representations were made to the court. (It cannot be argued that defence counsel were unaware of their clients' rights under s.11(b). On the first occasion the preliminary inquiry was adjourned, the matter of s. 11(

b) was expressly addressed by two of the threecounsel. The third was present during the exchange.) At arraignment, Crown counsel advised the court that "I have discussed withcounsel prospective dates for hearing of this matter and it appears that the most convenient time that can be offered is September of1990." None of the defence counsel objected to this representation. I take this to mean, given the reference to "convenient" that the dateswere indeed acceptable to all counsel.

This being so, I regard the agreement by defence counsel to the September trial date as tantamountto waiver, falling squarely within the comments made by Sopinka J. in Smith, supra, at 1136: Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right tosubsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver, agreeing to a future date for a trialor a preliminary inquiry would generally be characterized as more than silence. [Emphasis in the original.] 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 criminal cases. It takes time for a charge to beprocessed, for an accused to retain counsel and for applications for bail to be heard and other pre-trial procedures to be completed.Counsel must have time to prepare for trial and the trial itself takes time. All of these are inherent time requirements 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 notexpected to devote themselves exclusively to one case. Intake requirements, including retention of counsel, bail hearings, police andadministrative paperwork, and disclosure and transcription of intercepted communications also result in inherent delays.

Sopinka J. inMorin at para. 42 noted that as the number and complexity of these activities increase, so does the amount of delay which is reasonable. [145] The inherent time requirements of a matter in relation to disclosure encompasses the Crown’s preparation of disclosure (Morinat para. 42), the parties’ negotiation of the method of disclosure

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