R v Alcantara, 2012 ABQB 219

Court of Queen ’ s Bench of Alberta Citation: R v Alcantara, 2012 ABQB 219 Date: 20120402 Docket: 070060157Q1 Registry: Edmonton Between: Her Majesty the Queen - and - John Reginald Alcantara and Alan Peter Knapczyk Accused _______________________________________________________ Reasons for Judgment on Marche Evidence of the Honourable Madam Justice S.J. Greckol _______________________________________________________ I. Introduction [ 1 ] On April 21-23, 2008, Michael Francis Marche (“Marche”) testified during the preliminary inquiry for this cocaine trafficking conspiracy and criminal organization trial.

He was an alleged co-conspirator of Jeffrey Mark Caines (“Caines”), John Reginald Alcantara (“Alcantara”) and Alan Peter Knapczyk (“Knapczyk”). [ 2 ] Marche testified that he was a high level drug trafficker in the Caines cocaine trafficking organization. According to the evidence admitted on this voir dire , he was addicted to drugs, including Percoset, Oxycontin, cocaine and methadone, and was in debt to drug traffickers. He was a confidential informant to the RCMP and provided information in 2005 and 2006 during this investigation for which he received payment.

Marche and his fiancé were found in possession of three kilograms of cocaine in November of 2005, and she was found in further possession of drugs in June of 2006. However, charges did not proceed against them as a result of his agreement to testify in these proceedings. On November 20, 2011, while in the Source Witness Protection program, Marche died. [ 3 ] The Crown has applied to admit Marche’s preliminary inquiry evidence. In the absence of Marche, that evidence is hearsay and inadmissible unless admissible under s 715 of the Criminal Code (“ Code ”) or under the principled exception to the hearsay rule.

Counsel for Alcantara and Knapczyk are opposed to the Crown’s application on the basis that the requirements of s 715 have not been

met and the principled exception to the hearsay rule does not apply in these circumstances. II. Facts [ 4 ] The investigation leading to this trial began in February 2005 and resulted in charges against many people, including Caines, Alcantara and Knapczyk. Alcantara and Knapczyk were arrested on November 26, 2006. Caines turned himself in to the police on December 5, 2006. [ 5 ] On January 8, 2007, Information No. 070060157P1 was sworn. Caines, Alcantara and Knapczyk were jointly charged 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 . [ 6 ] The preliminary inquiry into these charges began on April 7, 2008. Marche testified on April 21-23, 2008. Knapczyk was present at the time of Marche’s testimony. However, Alcantara was absent pursuant to a judge’s order under s 537 (j.1) of the Code and his counsel was there on his behalf.

All three accused were committed to stand trial on July 14, 2008. Caines’ charges have since been resolved before another judge. III. Issue [ 7 ] The issue on this motion is whether Marche’s preliminary inquiry testimony should be admitted for the truth of its content pursuant to: (

a) s 715 of the Code ; or (

b) the principled exception to the hearsay rule. IV. Analysis A. Admission of Evidence Pursuant to

Section 715 of the Code 1. Legislative requirements [ 8 ]

Section 715 of the Code states: 715(1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person (

a) is dead, ... and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

. . .

(2.1) Despite subsections (1) and (2), evidence that has been taken at a preliminary inquiry in the absence of the accused may beadmitted as evidence for the purposes referred to in those subsections if the accused was absent further to the permission of a justicegranted under paragraph 537(1)(j.1). [9] Marche has been proved to be dead. His evidence at the preliminary inquiry was taken in the presence of Knapczyk. WhileAlcantara was absent, he had been excused pursuant to s 537(1)(j.1) of the Code.

Therefore, Marche’s testimony may be admitted asevidence in these proceedings without further proof, unless the Accused prove they did not have full opportunity to cross-examine him. [10] Even if the statutory pre-conditions are met, the Court has the discretion to decline to admit the evidence if the Accusedwould be denied a fair trial by its admission. 2. Full opportunity to cross-examine (

a) Arguments of Knapczyk and Alcantara [11] Knapczyk relies on three bases for his argument that he lacked full opportunity to cross-examine Marche: (1) the Crownprovided disclosure relevant to Marche after the preliminary hearing was complete; (2) due to the conflicts of interest caused by Mr.Chadi representing two co-accused and having formerly represented the witness Marche, Mr.

Juneja did not adequately cross-examineMarche; and (3) the form of “Dix” procedure employed to remedy the Chadi conflict with respect to the witness Marche was inadequate. [12] As discussed in the delay decision in this litigation (2011 ABQB 82, 43 Alta LR (5th) 226) (“Delay Decision”) at para 303,the Dix procedure takes its name from R v Dix, 1998 ABQB 92. A conflict of interest arose in that case as a result of defence counselhaving previously represented a witness. Veit J accepted the defence proposal that independent counsel cross-examine that witness.

Shedirected that elaborate procedures be implemented to ensure that no disclosure of confidential information would occur by the "tainted"lawyer to the lawyer conducting the cross-examination of the witness. [13] Alcantara was represented by his own counsel at the preliminary inquiry. He joins in the first of Knapczyk’s arguments. [14] Alcantara and Knapczyk rely on R v Potvin, (SCC), [1989] 1 SCR 525.

They also rely on R v Yu, 2001ABQB 341, 288 AR 97, aff’d 2002 ABCA 305, 317 AR 345; R v Assoun (1999), (NS SC), 187 NSR (2d) 330, aff’d2006 NSCA 47, 244 NSR (2d) 96, leave to appeal to the SCC ref’d [2006] SCCA No 233; and R v Mirabi, [2008] OJ No 867 (SCJ)(QL). [15] In Yu, the witness died during the trial, before cross-examination was complete. The Crown applied unsuccessfully under s715 as well as pursuant to the principled exception to the hearsay rule (the Khan principle) to admit the preliminary inquiry transcript asevidence at the trial.

The trial judge was satisfied that the accused had established that he had not had “full opportunity” to cross-examine the complainant at the preliminary inquiry because the preliminary inquiry judge had refused to permit cross-examination incertain areas, but also because there was substantial relevant disclosure after the preliminary inquiry.

The trial judge also declined theCrown’s application to read in the evidence pursuant to the Khan principle, holding that for the same reasons the s 715 application wasdeclined, the accused would suffer undue prejudice if the evidence was admitted and the probative value of the evidence was slight. Thetrial judge then concluded the trial on the basis of the trial evidence given by the complainant before she died as well as the balance ofthe evidence proffered. [16] The accused in Yu argued that his ss 7 and 11(

b) Charter rights had been breached as he could no longer make full answerand defence and, therefore, could not receive a fair and equitable trial. His application for a stay was dismissed as he had exercised fullopportunity to cross-examine the complainant on the essential elements of the case and matters giving rise to attacks on her credibilitycould be brought to the attention of the court in argument. The accused was convicted and his appeal was dismissed (2002 ABCA 305).

[ 17 ] In Assoun , a witness in a murder trial died after a KGB statement to the police and after the witness had testified at the preliminary inquiry. The Crown applied to adduce both statements at trial. Hood J held that the requirements of s 715 had not been met because the accused Assoun had not had full opportunity to cross-examine the witness since he did know about the witnesses’ psychic visions at the time and, therefore, could not cross-examine her about them. Nevertheless, Hood J found that the principled exception to the hearsay rule had been made out.

The statements were necessary either because of the witness’s death or because there was no other evidence of similar value, and they met the requirement for reliability. [ 18 ] In Mirabi , the accused represented himself at the preliminary inquiry and was not told of his right to cross-examine prosecution witnesses. Hill J held that the accused had not had full opportunity to cross-examine a police witness and the evidence of that witness, who was unavailable to testify at trial, was not admitted. (

i) Late disclosure [ 19 ] Alcantara and Knapczyk note that after the preliminary inquiry disclosure was made that Marche’s motive to act as a police informant was in part “[r]evenge against drug traffickers.” They argue that this introduces a reason for Marche to lie that was not apparent in earlier disclosure, raises credibility concerns, and cried out for cross-examination. [ 20 ] Further, they point to the Alberta Alcohol and Drug Abuse Commission (“AADAC”) report dated September 5, 2006, which states that Marche had used opiates four hours prior to the meeting with the AADAC counsellor and cocaine two hours prior to the meeting, yet he “...did not display overt signs of cocaine intoxication.” They suggest that Marche’s admitted use of methadone and cocaine prior to the interview with the AADAC counsellor, the counsellor’s note that he “... did not display overt signs of cocaine intoxication,” and Marche’s drug consumption pattern lead to the inference that he likely was using drugs when dealing with Caines and others in Fort McMurray, and with the RCMP and the Crown, without anyone being aware of that drug use.

They argue that cross- examination on this point would have been worthwhile. They point to what they contend are significant gaps in Marche’s recollection of events which occurred just prior to his arrest, and say these suggest he was under the influence of drugs at the time of those events. They point to Cpl. Gibson’s testimony at trial on January 24, 2012 that Marche appeared sober in all interactions. They contend this is another area where cross-examination would have been worthwhile.

Alcantara and Knapczyk maintain that late disclosure of this information meant they did not have full opportunity to cross-examine Marche. (ii) Conflict of interest [ 21 ] Knapczyk argues that the second factor that prevented the full cross-examination of Marche at the preliminary inquiry was the conflict of Mr. Chadi and Mr. Juneja in acting as counsel for both him and Caines. He says there is no evidence linking Marche with him but points out that Marche suggested he was a close associate of Caines. Knapczyk asserts that due to Mr. Chadi’s and Mr.

Juneja’s conflict of interest, he was prevented from having adequate and full cross-examination of Marche to attack Caines’ credibility. He points out that he did not sign a waiver with respect to the issue of Mr. Chadi’s prior representation of Marche. (iii) Flawed Dix procedure [ 22 ] Third, Knapczyk contends that the makeshift “ Dix ” procedure implemented by Mr. Chadi in having Mr. Juneja conduct the cross-examination of Marche acted to his detriment. He suggests there was a great deal of disclosure in this prosecution and there is no evidence that Mr.

Juneja was provided with his own copy of that disclosure or of how much time he had to review it. Knapczyk notes that on September 26, 2008, well after the preliminary inquiry, Mr. Juneja stated to the court: 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. [ 23 ] Also, Knapczyk says that Mr.

Juneja was not present for testimony given at the preliminary inquiry prior to Marche testifying,

and it appears Mr. Chadi did not obtain transcripts of that prior testimony. In addition, Mr. Chadi was counsel for Knapczyk and Caines during the direct examination of Marche and Mr. Juneja was not present for portions of that direct examination. Knapczyk suggests that if Mr. Juneja obtained the disclosure from Mr. Chadi rather than directly from the Crown, he might have approached his cross- examination of Marche less aggressively in an effort to ensure it did not appear as though he was using confidential information against Marche. (

b) Arguments of the Crown [ 24 ] The Crown relies on R v Lewis , 2009 ONCA 874 at para 68 , 249 CCC (3d) 265 and Potvin at paras 19 and 25 in arguing that lack of full opportunity to cross-examine a witness relates to situations where attempts to pursue lines of inquiry in cross-examination have been improperly frustrated. It does not include situations where lines of inquiry were not pursued due to lack of disclosure relating to the subject matter, which is a matter of trial fairness. [ 25 ] The Crown argues that Yu is consistent with the

interpretation of the law which it advances. The cross-examination at the preliminary inquiry in Yu was limited. It contends the same could be said of Mirabi , since the self-represented accused in that case was not advised of his right to cross-examine the witness. The Crown maintains that only Assoun supports the

interpretation advanced by the Accused, but it is inconsistent with the Supreme Court of Canada’s decision in Potvin and with the subsequent Ontario Court of Appeal decision in Lewis . (

i) Late disclosure [ 26 ] Further, the Crown argues that even under the definition of “full opportunity” advanced by the Accused, the late disclosure in this case could not result in a lack of full opportunity to cross-examine Marche. It submits that the Accused were fully aware, before the preliminary inquiry, of Marche’s drug use and canvassed it extensively in cross-examination. Defence counsel could have asked whether Marche was under the influence of drugs when he testified, but did not do so.

As to the failure to disclose Marche’s motive of revenge for providing source information until after the preliminary inquiry, the Crown takes the position the Accused knew Marche had a number of potential motives. They were aware Marche had received compensation for information he provided during the Project Koker investigation and that his charges had been stayed. This should have suggested the potential usefulness of cross-examining Marche as to additional motives he may have had for his actions.

The Crown asserts this was not an otherwise unknown area of potential cross- examination. (ii) Conflict of interest [ 27 ] As to Mr. Chadi’s conflict of interest, the Crown notes that both Knapczyk and Caines signed waivers after having received independent legal advice. They went into the preliminary inquiry with full knowledge of the dual and conflicting roles undertaken by Mr. Chadi. (iii) Flawed Dix procedure [ 28 ] The Crown argues that there is no evidentiary foundation to support Knapczyk’s assertion that he suffered a lack of full opportunity to cross-examine Marche as a result of Mr.

Juneja conducting the cross-examination rather than Mr. Chadi. It is mere speculation that Mr. Juneja did not have adequate time to review the disclosure prior to his cross-examination. The Crown notes that Mr. Juneja did not seek an adjournment to prepare further for cross-examination. It again submits it is mere speculation that Mr. Juneja restricted his cross-examination to avoid any inference that he had improperly accessed confidential information. The Crown says there is no evidence to show that Mr. Juneja pulled his punches in cross-examination. It also notes that Mr.

Rice, representing Alcantara, pursued the issue of an exclusivity agreement in cross-examination, and suggests there likely was a division of labour between Defence counsel, as is often the case. (

c) Conclusion on lack of full opportunity to cross-examine Marche [ 29 ] In Potvin , the Supreme Court of Canada considered the requirement that an accused must have had full opportunity to cross-

examine the witness when a transcript of the previous testimony is sought to be introduced at trial. Wilson J clarified at para 19 that: “...it is the opportunity to cross-examine and not the fact of cross-examination which is crucial if the accused is to be treated fairly.” So longas the accused had the full opportunity to cross-examine the witness, he or she cannot complain if that opportunity was not fullyexercised.

Wilson J at para 19 adopted the following observation of Martin JA in R v Davidson (1988), (ON CA), 42CCC (3d) 289 at 298-99 (Ont CA): An accused is not necessarily deprived of his or her constitutional right to a fair trial, where the evidence taken at a preliminary hearingfrom a crucial witness who has since died is read as evidence at the trial.

However, if in a particular case, an accused proves that he orshe did not have "full opportunity" to cross-examine the witness at the preliminary hearing because, for example, he or she was deprivedof the right to counsel or because of improper restrictions by the court on the cross-examination by counsel, then the conditions of s. 643[now s 715] have not been met, and the evidence taken at the preliminary hearing is not admissible under the section. Furthermore, theaccused's constitutional right to a fair trial guaranteed by s. 11(

d) of the Charter would also require the exclusion of evidence where theaccused did not have full opportunity to cross-examine the witness at the preliminary hearing. [30] In the more recent decision of Lewis, Moldaver JA (as he then was) took the view (at para 68) that the full opportunity tocross-examine requirement is limited to cases where a witness refuses to answer questions in cross-examination, a witness dies ordisappears before the cross-examination has been completed, or where the presiding judge improperly limits or restrictscross-examination.

It does not extend to situations where the failure to cross-examine arises from an accused's ignorance of potentiallyuseful information. Such situations are best dealt with as a factor in assessing trial fairness. [31] Knapczyk and Alcantara rely on the decision of the trial judge in Yu. As noted by the Crown, the cross-examination of thecomplainant in that case was truncated at the preliminary inquiry and, as a result, the preliminary hearing transcripts were not admittedunder either s 715 or the principled exception to the hearsay rule.

Although the complainant died before her cross-examination at trialwas complete, the trial judge continued the trial based on the evidence that she had given, denied the application for a stay based onunfairness, and convicted the accused. [32] The Court of Appeal in Yu considered the question of fundamental fairness and the impact of impaired cross-examination,stating at paras 7, 9 and 13: The judge was demonstrably alert to the significant and overriding concern that before viva voce evidence could be admitted without anopportunity to cross-examine fully upon it there had to be an important and defensible reason to do so.

But the right to a completedcross-examination, whatever the circumstances, is not, as Mr. Bloos says, an indelible right, the disregard of which corrodes the fairnessof any criminal trial. . . . It is settled law that no breach of fundamental fairness is deemed to have occurred where cross-examination of a material Crown witnesshas been truncated or has indeed been lost. Where the effect of the cross-examination has been limited but not entirely negated, anyinconsistencies between the evidence in chief and prior statements that could have been led from other sources and put before the jurymay be sufficient.

Such other sources were considered by trial counsel. . . . The preponderance of reported authority supports the conclusion that viva voce testimony that is unaccompanied by cross-examinationbecause of the intervening death of the witness, is not rendered inadmissible. See R. v. Doolin

(1832) Jebb. C.C. 123; R. v. Solomon andThumbler (1958) (MB KB), 25 W.W.R. 307, 320 (Man. C.A.); Bank of Montreal v. Drycreek Livestock EnterprisesLtd. (1981) (MB KB), 9 Man. R. (2d) 352; Cook v. Laba (1986) (AB KB), 52 Alta. L.R. (2d) 187;R. v. Hart (supra). Only its weight is undermined. To what extent rests with the trier of fact. [33] Knapczyk’s argument of lack of full opportunity to cross-examine Marche rests on three bases: (

i) late disclosure; (ii) Mr.Chadi’s conflicts of interest; and (iii) the flawed “Dix” procedure. As noted above, Alcantara joins only in the first argument.

(

i) Late disclosure [ 34 ] The parties proceeded on this motion with an Agreed Statement of Facts. It states that a number of documents were provided to Defence counsel on May 12, 2008, after Marche had testified but before the preliminary inquiry closed. These documents included statements by Marche (May 4, 2008) and his finance, Debbie Weiss (May 2, 2008). Defence counsel could have asked that Marche be returned to the stand for the purpose of addressing that disclosure. There is no evidence they did so.

I conclude there was no lack of full opportunity to cross-examine Marche as a result of this late disclosure. [ 35 ] The parties have identified a number of documents that were disclosed after the preliminary inquiry. Defence counsel rely on several items in this disclosure they say are most relevant to Marche’s credibility, including source assessment reports concerning Marche and an AADAC treatment assessment report relating to him. [ 36 ] Two source assessments regarding Marche were provided to the Accused on October 2, 2008.

The assessment dated April 9, 2005 notes under “Source’s Motive”: “[s]ource expressed desire to assist Police with apprehending drug traffickers. Revenge against drug traffickers.” [ 37 ] The assessment dated March 17, 2006 reports under “Source’s Motive”: Source has expressed desire to “start fresh” and potentially get out of the drug trafficking scene in Fort McMurray. Source has also been monetarily compensated in the past but this appears to be only part of the Source’s motivation for supplying information. [ 38 ] The AADAC report is dated September 5, 2006.

It indicates that Marche met with the author, an addictions counsellor, on August 31, 2006 for two hours to complete an assessment and determine treatment recommendations. Marche advised that he was prompted to attend the appointment given his increasing concern about his use of opiates (Percoset and Oxycontin) and cocaine (powder), as well as involvement with the RCMP in a confidential capacity.

The author stated that Marche “...appeared to be enthusiastic to establish and engage in a treatment plan that addresses the concerns he has regarding opiate and cocaine use.” [ 39 ] Marche described a shoulder injury he had suffered three years prior to the report and his subsequent addiction to prescription opiate medications (Percoset), which lead to his taking Oxycontin. Six months prior to the report, he started using methadone, obtained from a friend. Without the methadone, he experienced withdrawal symptoms.

He advised the counsellor that he had last used opiates four hours prior to the interview, when he consumed one-half of his friend’s dose of methadone. [ 40 ] Marche stated that he began to consume cocaine powder by nasal ingestion about a year prior to the report. Within months, he was using cocaine up to three times a day. He said that the cocaine abated the symptoms he experienced associated with withdrawal from opiates. He indicated he was committed to abstinence from cocaine, which he did not anticipate would be a problem given an opiate maintenance program.

His last use of cocaine was two hours prior to the interview. The counsellor noted: “[h]e did not display overt signs of cocaine intoxication.” [ 41 ] As to Marche’s emotional state, the author wrote: Mr. Marche indicates that he has times of mental confusion, or a mental ‘haziness’, that he believes is related to opiate/cocaine use/withdrawal. He stated he has noticed some changes in memory, finding himself forgetting activities that he would normally expect himself to remember. He, again, attributed this to his use of substances. Mr.

Marche reported feeling quite frustrated with himself in regards to initiating and continuing drug use... [ 42 ] Marche also reported that he had not previously been involved with the mental health system and he denied having any

symptoms of past or present mental health problems. He said that he had never contemplated or attempted suicide, he believed it was a “selfish act that benefits no one,” and he could not perceive himself resorting to suicide. [ 43 ] The addictions counsellor noted in the “Recommendations”

section of the report that Marche wished to pursue methadone maintenance through the Opiate Dependency Program. The counsellor concluded with the remarks that Marche “...presented as appropriate, logical, reasonable, was oriented in time and space, and was able to answer questions directed to him. ...Mr. Marche readily admits that he ‘has a drug problem’, and stated a commitment to the above-noted recommendations.” [ 44 ] Alcantara and Knapczyk also rely on the reports of Cst.

Bernal from November 20, 2011 concerning Marche’s death, which list the medications and the prescriptions in his possession at the time of his death. The briefing note to Criminal Operations states: Medical History of Deceased : Several bottles of medications were located in the deceased’s room, including Valium, Sleeping Pills, etc. Prescriptions for medications such as Fenanol and Methadone were located in the deceased’s room, as well as actual medication such as these in the deceased’s car.

Medications and prescriptions found indicate that the deceased was probably a recovering drug addict, and someone that suffered from Mental Health Issues. [ 45 ] The General Report filed by Cst. Bernal stated: Member put found medication on a plastic bag. It was taken by Removal Services along with the body. The medication containers had the name of [redacted] written on the labels. Some of these medications were Apozopicione 7.5 mg, Apoclindamycin 150 mg, Mylanclonazepam 0.5 mg.

There was Valium and Fentanol as well. [ 46 ] Further disclosure provided to the Accused on September 10, 2008 included the witness protection agreement signed by Marche and Weiss on January 4, 2007. It shows that total maintenance funds expended on their behalf amounted to $67,418.58. The agreement refers to payment for a methadone prescription. [ 47 ] Defence counsel were aware that Marche was a police source on Project Koker and that charges against him had been stayed.

During the preliminary inquiry, they cross-examined him on his receipt of money from the police for providing information and referred to the staying of charges against him. Counsel were not prevented from asking him about other possible motives for supplying information to the police. [ 48 ] At the preliminary inquiry, Defence counsel cross-examined Marche about his drug use.

Evidence was elicited that: ∙ he suffered a shoulder injury in 2004 and he had a three month prescription for Percoset using five to ten pills of five milligram dosage per day; ∙ when the prescription ran out, he bought Percoset on the street and then between five and ten 10 milligram pills of Oxycontin a day.

Eventually, this became eight 80 milligram pills a day (640 milligrams of Oxycontin per day); ∙ during this time period, he was using cocaine regularly as well as methadone; ∙ it was during this time period that he had a business relationship with Caines; ∙ he agreed that given his use of Oxycontin, cocaine and methadone, he was continually under the influence of narcotics during his dealings with Caines - pretty much “continually high”;

∙ when he paid Caines for drugs that he sold, he was continually in debt to Caines. They did business on a continual basis; ∙ as a drug dealer, the actions he took to store and pick up cocaine were for his benefit. [ 49 ] In my view, despite the late disclosure, the Accused had full opportunity to cross-examine Marche on his drug use. The cross- examination at the preliminary inquiry reveals they were well aware of his drug use and addiction.

They had full opportunity to question him at the preliminary inquiry about any impact his drug use might have had on his ability to recall events. [ 50 ] As to the late disclosure of revenge against drug dealers being a motive for Marche to co-operate with the police, the Defence did cross-examine him about his other motives, such as financial compensation and relief from prosecution, and could have asked whether he had additional motives for assisting the Crown. (ii) Conflict of interest [ 51 ] At the time of the preliminary inquiry, Mr. Chadi was counsel for both Caines and Knapczyk.

He had been counsel to Marche with respect to previous charges. Mr. Chadi eventually withdrew as counsel for Caines and Knapczyk due to the conflict inherent in representing two alleged co-conspirators. The Chadi conflict became an issue in these proceedings in the motions brought by the Accused alleging unreasonable delay. In the Delay Decision at paras 368-371, I made the following findings concerning the Chadi conflicts: Mr.

Chadi had the primary responsibility to raise the conflicts inherent in multiple concurrent and successive representations in related proceedings of witnesses, alleged conspirators, 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 are raised squarely before it. Mr. Chadi did recognize that he faced a conflict by his prior representation of an important Crown witness, Marche, in the Koker A prosecution. More was required than independent counsel for the cross-examination of Marche.

No procedures were employed to protect his confidentiality interests, as in the Dix case, and no consent was obtained from Marche. Mr. Chadi faced conflicts because of multiple concurrent and successive representation of accused persons who were unindicted co- conspirators in the Koker A prosecution. He should have obtained Consents from these former clients (as he did with John Caines and Flight) before representing Caines and Knapczyk. The Consents signed by Caines and Knapczyk did not deal with the other unindicted co-conspirators for whom Mr.

Chadi previously had acted (although it is said they consented to concurrent representation of John Caines and Flight). Mr. Chadi then faced the potential conflicts inherent in the representation of two accused in a complex conspiracy case. Caines and Knapczyk consented to that dual representation, but the Consents did not touch on the Marche conflict or the other alleged unindicted co-conspirators previously represented by Mr. Chadi. Despite the Consents, the conflicts prevailed and Mr.

Chadi withdrew 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 for the time that was required to obtain new counsel. [ 52 ] I agree with the Crown that given Knapczyk consented to Mr. Chadi’s dual representation of him and Caines after having received independent legal advice from Mr. Juneja, he cannot rely on that particular conflict to assert a lack of full opportunity to cross- examine Marche. Knapczyk went into the preliminary inquiry with Mr.

Chadi as counsel to both him and Caines with his eyes wide open as to the problem of the disparate interests, otherwise there would have been no point in obtaining independent counsel and waiving the conflict. He must have thought this arrangement would benefit his interests at the time and cannot now take advantage of the situation he created. (iii) Flawed Dix procedure

[ 53 ] As I remarked in the Delay Decision , the Consent signed by Knapczyk did not refer to Mr. Chadi’s previous representation of Marche in proceedings arising from the Koker investigation. [ 54 ] In the Delay Decision , I indicated in Appendix A at paras 31-35: 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 near Red Deer. Marche also was charged with driving a motor vehicle without insurance. Both designated Mr. Chadi as their counsel on that date.

A joint submission of the Crown and Defence for judicial interim release with cash deposits and conditions was accepted. On December 15, 2005, Constable Gibson conducted an interview with Marche. A stay of proceedings was entered on December 20, 2005. In a sworn statement by Marche dated February 23, 2006, which was part of the Crown disclosure, Corporal Mark Anderson of the RCMP Edmonton Drug

Section noted that the charges against Marche had been stayed and Marche was being asked for a statement as a witness. He advised Marche that, prior to his arrest on November 24th, phone calls involving him had been intercepted pursuant to a wiretap authorization and his vehicle had been under surveillance at the residence of Caines in Calgary. Marche indicated that Mr. Chadi represented him at the bail hearing and that Mr. Chadi had not acted for him before. 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 in terms of that decision. He stated, "Uh, we're always, we've been told from day one, if we have any problems, uhm, this is in regards to everybody that worked under Jeff... [t]o call Jake CHADI." He said that when he met with Mr. Chadi, Jeff showed up. When asked how he paid for his legal fees, Marche said: "There supposed to be covered through Jeff. Actually my bail was to be covered through Jake and Jeff but I got a little impatient. [ 55 ] Despite his prior representation of Marche, Mr. Chadi cross-examined Cpl.

Farmer at the preliminary inquiry in the present matter on April 15, 2008 about payment by the RCMP to Marche as a Crown informant. The Crown questioned the propriety of this. Mr. Chadi continued to ask questions of the officer: Q Specifically to Mr. Marche, were you aware of any payments of money made to Mr. Marche during the currency of your time in Fort McMurray? A Yes. I know we paid Mr. Marche. Q Were you aware Mr. Marche was charged not only in Red Deer with a cache of drugs, but after Red Deer, and I suspect after the police spoke with Mr.

Marche sometime in ‘06, he was further charged along with Debbie Weiss? Are you aware of those events? A That was out of a hotel in Fort McMurray I believe? Q Yes. A Yes. Q I take it Mr. Marche was being a paid informant during that time as well. Is that fair to say?

A I don’t recall if he received any money after he was charged out of Red Deer. MR. HRABCAK: Sir, I’m - - and I’m not objecting to the question of my friend, but an issue has, sir, arisen in my mind, and I’m wondering if I could have five minutes to make an inquiry. I can advise my - - Mr. Chadi what that is once court closes, but it’s in relation - - I guess I can it’s in relation to Mr. Chadi is not able to cross-examination Mr. Marche due to a perceived conflict, and I’m just wondering now, the questioning of this witness regarding Mr.

Marche, whether that would fall within that scope, and I - - THE COURT: Well – MR. HRABCAK: I wanted to just make an inquiry with respect to that. It just - - it just occurred to me at this stage as he’s going down that road. A number of the questions are akin to questions that would be in cross-examination of Mr. Marche. THE COURT: But his conflict is in relation to - - MR. CHADI: Marche. THE COURT: -- Marche -- MR. HRABCAK: And the -- THE COURT: -- his real or perceived conflict - - and I do not know what it is, but other than I take it at some point in time Mr. Chadi may have acted for Mr.

Marche and it may have - - MR. CHADI: Your Honour, I’ll put it on the record. I don’t remember Mr. Marche specifically. Mr. Marche retained my office with another lawyer, Mr. Gill, in Fort McMurray to deal with charges that occurred out of a hotel room. I don’t even know where the charges occurred from. But I do know -- THE COURT: Okay. MR. CHADI: -- Debbie Weiss was charged. Now, I should also add THE COURT: But that is enough of a conflict to - - MR. CHADI: That’s sufficient enough for me not to ask Marche any questions THE COURT: Right. MR.

CHADI: But this is all documentation evidence that exists outside of Marche. This isn’t dealing directly with Marche or at Marche. This is cross-examination of a police officer’s knowledge. [ 56 ] In fact, Mr. Chadi had represented Marche himself and was endorsed as counsel of record when March was arrested in Red Deer on or about November 24, 2005. Despite his previous representation of Marche, Mr. Chadi undertook the representation of Caines

and Knapczyk. Marche was identified in the Information as an unindicted co-conspirator and Mr. Chadi would have know by about mid- 2007 that Marche was a police informer and the Crown intended to call him as a witness in these proceedings. Despite the conflict between the interests of Marche as former client and Caines and Knapczyk as current clients, Mr. Chadi did not stand down but rather continued to act during the preliminary inquiry while Marche testified in chief. Indeed, he intervened on several occasions with observations or objections. [ 57 ] On April 23, 2008, Mr.

Chadi employed a quasi and imperfect Dix procedure by handing off the cross-examination of Marche to Mr. Juneja. [ 58 ] In the Delay Decision at paras 306, 308-309, I found: There is a significant difference between Dix and the present case. In this case, the Crown witness at issue, Marche, is alleged to be part of the conspiracy while in Dix , the Crown witness had previously been represented in unrelated matters. The conflict in Dix arose late in the proceedings and came as a surprise to defence counsel.

The conflict respecting Marche was obvious to all at least by the time disclosure of the Report to Crown counsel was provided in June 2007, and likely much sooner. ... There were no consents or certificates of independent advice in respect of the Marche conflict, either signed by and for Marche, Knapczyk or Caines. There is no evidence that procedures were undertaken, as in Dix , to ensure the confidentiality of Marche was protected except that independent counsel undertook the cross-examination. I conclude that Mr.

Chadi had a conflict of interest with respect to the representation of Caines and Knapczyk in the Koker A prosecution because he was former counsel to Marche, a key Crown witness, a fact known to Mr. Chadi from the Information and confirmed when disclosure was received by him on or before June 1, 2007. That disclosure also contained an allegation by Marche of Mr. Chadi’s involvement in the conspiracy (an allegation that is unproven). The Dix procedure employed was minimal, and no consents were obtained from Marche or Caines or Knapczyk relative to that conflict. The moment that Mr.

Chadi obtained the knowledge that Marche would be a Crown witness, he should have recognized the conflict and not taken on the representation of Caines and Knapczyk. [ 59 ] The problem of the Chadi conflicts is amply illustrated in this case. Mr. Chadi carried multiple and conflicting briefs in this Koker prosecution. I canvassed only enough of those in the Delay Decision to facilitate a decision. One consequence of those conflicts was delay.

A second consequence is that Knapczyk now raises the conflict and the procedure used during the cross-examination of Marche at the preliminary inquiry as a basis for asking the Court to decline to admit Marche’s preliminary inquiry evidence. Mr. Chadi's conduct has created problematic issues for orderly conduct of this trial, including delay and Defence arguments of prejudice to the rights of the Accused which, at minimum, mean the Accused have perceptions of prejudice. [ 60 ] Knapczyk argues that there is no evidence of how much time Mr.

Juneja had to review the disclosure in this matter before conducting the cross-examination. I note that neither Mr. Chadi nor Mr. Juneja sought an adjournment of the preliminary inquiry to allow Mr. Juneja more time to review the disclosure relating to Marche. Also, I agree with the Crown that it would be mere speculation that Mr. Juneja’s remarks on September 26, 2008, some five months after the preliminary inquiry, pertained to disclosure concerning Marche.

I note that in stating on that date that he was not yet prepared to go on record for Knapczyk, Mr Juneja relied not only on the volume of disclosure in the case but also his desire to have further discussions with Knapczyk about his retainer. [ 61 ] Knapczyk notes that Mr. Juneja was not present for the evidence given at the preliminary inquiry before Marche testified and it appears Mr. Chadi did not obtain transcripts of that earlier evidence. Clearly, it would have been preferable if Mr. Juneja had heard the previous testimony.

However, Knapczyk has not pointed to matters on which Marche should have been cross-examined as a result of that prior evidence which were not touched on by either Mr. Juneja or counsel for Alcantara. [ 62 ] Knapczyk points out that Mr. Juneja was not present at the opening of court on the mornings of April 22 and April 23, 2008 and appears to have missed at least a small portion of the direct examination of Marche. Again, he does not refer to matters on which Marche should have been cross-examined as a result of that direct examination which were not touched on by Mr. Juneja.

[63] Knapczyk contends that Mr. Juneja likely obtained disclosure from Mr. Chadi rather than the Crown and suggests the courtshould infer that Mr. Juneja was less aggressive in his cross-examination of Marche as he did not want it to appear as though he wasusing confidential information against Marche. There is no evidence of this. It is a matter of mere speculation. [64] On the subject of whether Mr. Juneja “pulled his punches” in cross-examination, I note that his cross-examination of Marchecovered Marche’s drug use, his knowledge of Mr.

Chadi prior to entering into the business relationship with Caines, Marche’s arrest in2005, his retaining of Mr. Chadi, the fact he was the one who approached Caines for a supply of drugs, the arrangements he had withCaines in terms of that supply of drugs, the other individuals who worked with Caines, Marche’s trip to Calgary to obtain a supply ofdrugs in exchange for bad drugs which had been supplied, and whether Marche took certain action for his own benefit or as a favour toCaines rather than out of an obligation to him. [65] I agree with the Crown that Mr.

Juneja’s cross-examination was focussed on the points in issue. Counsel for Alcantara, seniorand very experienced in these matters, did not pursue any of Mr. Juneja’s lines of inquiry any further during his cross-examination ofMarche, which also suggests that Mr. Juneja did not improperly restrict his line of questioning during the cross-examination. Askingquestions to undermine the credibility of Marche would have been in the common interests of all Accused. [66] While I do not condone Mr.

Chadi’s conflict of interest in acting as counsel for Caines and Knapczyk given his previousrepresentation of Marche, and I do not condone the quasi-Dix procedure employed in the cross-examination of Marche, after all is saidand done, I cannot find that Knapczyk lacked full opportunity to cross-examine Marche as a result of either of the Chadi conflicts ofinterest. 3.

Right to a fair trial [67] Even though the Accused have not proved they lacked full opportunity to cross-examine Marche, the Court has the discretionto refuse to admit into evidence the transcript of Marche’s preliminary inquiry testimony if to do so would result in an unfair trial for theAccused. (

a) Argument of Alcantara and Knapczyk [68] The Accused argue that even if all the statutory conditions under s 715 of the Code are met, the Court should exercise itsdiscretion to refuse to admit the evidence as its admission would prevent them from having a fair trial.

They rely on the decision ofWilson J in Potvin at para 37, in which she indicated that the court’s discretion is sufficiently broad to deal with a situation where theevidence was obtained in a manner that was unfair to the accused or where its admission would not be fair to the accused, even if it wasobtained in a fair manner. [69] They submit that the probative value of Marche’s evidence is slight or non-existent given that a Potvin warning (that the trierof fact does not have the benefit of observing the witness give evidence) and a Vetrovec warning (that the witness’ admitted traffickingand his status as a paid informer must be considered in assessing his credibility) would be required in these circumstances. [70] Knapczyk argues that the Chadi conflicts and flawed Dix procedure support denial of this application on the basis of trialfairness.

He asserts that Mr. Juneja was preoccupied with showing there was no impropriety on the part of Mr.

Chadi and that he pulledhis punches when it came to vigorous cross-examination of Marche since he was representing two accused with fundamentally opposedpositions. [71] Alcantara and Knapczyk cite a number of decisions in support of their position that the failure to disclose relevant informationuntil after the preliminary inquiry is a matter of trial fairness. [72] In R v Barembruch (1997) (BC CA), 96 BCAC 215, 119 CCC (3d) 185, the complainant in a sexualassault case was cross-examined at the preliminary inquiry but died before trial. The defence were only informed after the preliminary

inquiry that the complainant had met with Crown counsel and a police officer immediately before the inquiry and her actions andstatements were relevant to her credibility.

The Court of Appeal held that the failure to disclose this information amounted to a denial ofthe appellant’s right to full answer and defence, rendering the trail unfair, and that the trial judge should have exercised his discretionunder s 715 to refuse to admit the complainant’s preliminary inquiry evidence. [73] In R v Gough, [1999] OJ No 1483 (Gen Div) (QL), the court denied the admission of preliminary hearing evidence on thebasis of unfairness due to disclosure of information after the preliminary inquiry and the real possibility the witness had brain damagewhich could have affected her ability to testify at the preliminary. [74] In R v Michaud (2000) (NB CA), 224 NBR (2d) 371, 144 CCC (3d) 62 (CA), the principal witness diedbetween the first and second trials.

The New Brunswick Court of Appeal found that the witness’ testimony from the preliminary inquiryand first trial was properly admitted at the second trial. It was not until the third trial that the defence learned of other recordedconversations between the witness and a police agent. The trial judge (2001 NBQB 37, 238 NBR (2d) 289) (QBTD)) held that as a resultof the late disclosure, the defence in effect had been denied the ability to fully cross-examine the witness and to make full answer anddefence. [75] The complainant in R v Sabra, [2007] OJ No 832 (SCJ) was a Mexican national and resided in Mexico.

The Court did notallow her preliminary inquiry testimony to be adduced into evidence for several reasons: she was a central witness and her credibility wasa crucial issue; the lack of defence opportunity to cross-examine her on notes she made of her allegations that were only disclosed to thedefence after the preliminary inquiry; and the possibility that the accused would be deprived of the opportunity to cross-examine her onher prior sexual history with him. [76] On the strength of these cases, as well as R v Saleh, 2010 ONSC 756 and R v Besner [1996] YJ No 102 (Sup Ct) (QL), theAccused argue that late relevant disclosure affecting credibility is dealt with as a trial fairness issue that operates to exclude admission ofevidence taken at the preliminary hearing. [77] The Accused maintain that the delay of this trial due to late disclosure has caused trial unfairness.

Marche’s death occurred inNovember 2011. Had it not been for the long delay occasioned by the revelation of the put-away issue, Marche would have beenavailable to testify at trial. [78] Further, the Accused contend that the Court should exercise its discretion to decline to admit the evidence because itsprejudicial effect is out of proportion to its probative value.

They refer to the definition of “prejudice” from R v Corbett, (SCC), [1988] 1 SCR 670 at para 122: By prejudice is meant, of course, that the acceptance of such evidence could operate unfairly and unjustly, and not merely unfortunatelyto the accused; see Wray, supra, per [page725] Martland J. at p. 293; Director of Public Prosecutions v. Boardman, [1975] A.C. 421(H.L.). [79] The Accused suggest that in terms of probative value, the question is the extent to which the evidence will prove the fact inissue for which it is tendered (R v Pascoe (1997), (ON CA), 32 OR (3d) 37,113 CCC (3d) 126 (CA)).

They submitthat the Court should decline to admit evidence when its prejudicial effect outweighs its probative value, relying on R v Post, 2007BCCA 123, 217 CCC (3d) 225, leave to appeal to SCC ref’d [2007] SCCA No 207, in which the trial court exercised its discretion todecline admission of evidence from a witness on the basis that, while the evidence was exculpatory, its probative value was minimal. [80] The Accused say there are a number of factors that affect the reliability of Marche’s evidence and diminish its probativevalue, including the following: (

i) He was a self-admitted high level cocaine trafficker with a number of people working under him and selling multiple kilogramsof cocaine every week and, therefore, was a witness of unsavoury character. (ii) He was addicted to drugs throughout the relevant time frame, although this may not have been apparent.

(iii) He was taking prescription drugs at the time of his death (methadone, fentanol, apozopiclone, mylanclonazepam, mylanzopiclone, and valium), which leads to the inference he may have been taking similar substances when he testified at the preliminary inquiry. (iv) He co-operated with the police and testified at the preliminary inquiry out of self-interest. There was a commercial incentive in that the arrest of others would naturally drive the price of his product up. He was paid for information in the past, and testifying was a condition of receiving support in the witness protection program.

He was in debt to Caines. Also, the charges against Marche and Weiss of possessing three kilograms of cocaine in November 2005 and the later charges against Weiss were not re-instituted. (

v) Some interactions with Cpl. Bannerholt and Cpl. Gibson were not audio or video-recorded. As a result, it is impossible to say what information or inducements may have been provided to Marche. (vi) Marche’s memory while testifying at the preliminary inquiry was not good. He frequently refreshed his memory and was unable to recall crucial details. (

v) Marche indicated one reason for his co-operation was revenge against drug traffickers, and this could provide a motive to lie to precipitate consequences against them. [ 81 ] The Accused submit that Marche’s evidence is vague and equivocal respecting the “Showgirls incident,” in particular his suggestion that steps were taken to bring “troublemakers” into line. They contend the evidence regarding exclusivity, bikers, Hells Angels and a protection agreement is equally tenuous and that Marche, in effect, resiled from the assertions he made in direct examination. (

b) Arguments of the Crown [ 82 ] The Crown responds that the evidence before the Court does not support the Accused’s assertion that admission of Marche’s evidence will have an adverse effect on trial fairness.

It advances the same arguments in this regard as discussed above in relation to the lack of full opportunity for cross-examination of Marche alleged by the Accused. [ 83 ] The Crown submits that Alcantara cannot assert trial unfairness on the basis of the Chadi conflicts or Dix procedure as he had independent counsel. [ 84 ] The Crown suggests that any late disclosure can still be used by the Court in considering Marche’s testimony, and points out that the Court can listen to the audio of Marche’s testimony to assist in its assessment of his demeanor.

The Court also can assess his testimony against the rest of the evidence. The Crown notes that there is other trial evidence that is corroborative of Marche’s testimony. The Crown argues that the Lewis decision supports the admission of Marche’s evidence from the preliminary inquiry. [ 85 ] The Crown maintains that Marche’s preliminary inquiry evidence is highly probative. A conspiracy essentially is an agreement proved by inferences derived from the acts and declarations of co-conspirators.

The Crown says that Marche provided eyewitness evidence of the drug operation - its membership, the hierarchy, the manner of trafficking, the amounts trafficked, the frequency of trafficking and the coded language. Further, he provided evidence of the existence of a protection agreement. The Crown argues that Marche’s evidence is of significant probative value and can be assessed taking into consideration the Potvin and Vetrovic warnings. [ 86 ] The Crown says that other trial evidence corroborates much of Marche’s preliminary inquiry evidence.

[ 87 ] Marche testified with respect to the events leading up to his arrest near Red Deer on November 24, 2005 and the seizure of three kilograms of cocaine. [ 88 ] The Crown maintains that police surveillance conducted on November 23 and 24, 2005 corroborates Marche’s testimony. The Crown says that wire interceptions also corroborate Marche’s testimony in relation to that event. [ 89 ] Marche testified that “love” is used as a term to denote money.

The Crown says this evidence is corroborated by calls where the term obviously is used to refer to money, such as in a particular call between Flight and an unknown male. [ 90 ] The Crown points out that Marche testified during direct examination that Caines told him he had a protection or exclusivity agreement with bikers, meaning they would protect the exclusive right of Caines’ group to traffic in cocaine in part of Fort McMurray.

The Crown acknowledges that Marche agreed in cross-examination that if Caines was paying for protection, he did not know who Caines was paying it to and that on re-direct he testified that he had not heard anything specifically come from Caines stating who and/or if he was paying protection. [ 91 ] However, the Crown submits that Marche’s direct examination evidence is more reliable as he was given an opportunity at that time to refresh his memory from a previous statement whereas he was denied that opportunity by the preliminary inquiry judge during the re-direct.

The Crown also contends his evidence of a protection agreement with bikers is corroborated in a number of ways, including by Walker’s testimony, anticipated expert evidence, and intercepted communications. [ 92 ] The Crown responds as follows to each of the other frailties in Marche’s evidence alleged by the Defence: (

i) There is no evidence that Marche’s evidence is suspect because he may have been informing on other traffickers to drive up prices. In any event, on this theory, he would only benefit if he gave truthful information. (ii) There is no evidence that Marche tailored his evidence to say what the RCMP wanted him to say. (iii) Not all interactions between Marche and the RCMP were recorded, but a number were and the RCMP officers in question have been available for cross-examination. (iv) The concern that drug use may have affected Marche’s memory is not supported by the evidence.

Given Marche gave his evidence two and one-half years after the events, it is to be expected that he would have had some memory loss. Much of his evidence was general. In any event, Marche gave a detailed account of the events of November 24 and 25, 2005, including a description of his movements, his vehicle, the telephone calls, taking a picture of the money he delivered for Caines, the amount of cocaine seized, and the hidden compartment where it was transported.

Also, he gave detailed accounts of other deliveries, including the one that supposedly took place at the Sawridge Hotel, the courier who arrived on the bus, and the time he met Flight for a hand-off at Caines’ residence. (

v) It has not been established in the evidence that Marche’s motive of revenge against drug dealers to act as a source lead to him lying to the police and, in any event, his preliminary inquiry evidence will not be viewed in isolation. (vi) There is no evidence that Marche’s evidence may have been contaminated by the RCMP playing calls for him (or otherwise). (

c) Conclusion on trial fairness [ 93 ] In Potvin , Wilson J held that the word “may” confers a discretion not to allow the previous testimony to be admitted where its admission would operate unfairly to the accused. At para 37, she stated:

In my view, once it is accepted that s. 643(1) [now s 715] gives the trial judge a statutory discretion to depart from the purely mechanicalapplication of the section, the discretion should be construed as sufficiently broad to deal with both kinds of situations, namely where thetestimony was obtained in a manner which was unfair to the accused or where, even although the manner of obtaining the evidence wasfair to the accused, its admission at his or her trial would not be fair to the accused.

I would stress that in both situations the discretionshould only be exercised after weighing what I have referred to as the "two competing and frequently conflicting concerns" of fairtreatment of the accused and society's interest in the admission of probative evidence in order to get at the truth of the matter in issue: seeClarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383, at pp. 392-93. [94] Wilson J also commented at para 42 that it is desirable for the trial judge to remind the jury they have not had the benefit ofobserving the witness give the testimony.

This is particularly so in situations where the witness deliberately has decided not to give his orher evidence under oath before the trier of fact. [95] For the reasons I gave above respecting full opportunity to cross-examine Marche, I conclude that admission of the Marchepreliminary inquiry transcript into evidence at the trial would not lead to trial unfairness due to the late disclosure relied on by theAccused in its arguments, the Chadi conflicts raised by Knapczyk, or use of the flawed Dix procedure in having Mr.

Juneja cross-examine Marche on behalf of Knapczyk. [96] Marche was cross-examined not only by Mr. Juneja but also by counsel for Alcantara. He was examined on his drug use andreceipt of financial compensation for providing source information. The Court can consider the motives he might have had for givingthat information in assessing his evidence. The Accused suggested Marche may have been informing on cocaine traffickers to drive upprices. As noted by the Crown, that purpose would have been achieved more so by the provision by Marche of accurate information thanby fabricating lies.

Many of the arguments advanced by the Accused are based on speculation rather than evidence. The officers whointerviewed Marche have been available for cross-examination. [97] I have reviewed Mr. Juneja’s cross-examination thoroughly and cannot conclude that he was unduly pre-occupied withexonerating Mr.

Chadi, and there is no other evidence to support this contention. [98] Any frailty of Marche’s evidence that might be ascribed to his drug trafficking or drug use, his role as a Crown informant andwitness in the witness protection program and his motives to testify, will be questions that will go to the weight of his evidence.Ultimately, the Court can accept some, all, or none of the evidence of a witness. [99] Does the prejudicial effect of Marche’s preliminary inquiry testimony outweigh its probative value? [100] I agree with the Crown that Marche’s evidence, including his evidence about the drug operation, those involved in theoperation, their hierarchy, the manner of trafficking, the codes used, his own participation in the operation and the Showgirls incident isrelevant to the existence of a conspiracy and probative given Marche’s admitted involvement in the operation over the pertinent period oftime.

As outlined by the Crown in its written submissions, there is evidence which tends to corroborate aspects of his evidence. [101] In direct examination, Marche testified about rounding up “riffraff” who were causing problems for the lower level dealers andstealing people’s drugs and about bringing them to a nightclub called Showgirls in Fort McMurray to meet with Caines and some otherindividuals. [102] In direct examination, Marche was asked and testified to the following: Q After these meetings [the ones at Showgirls] were completed, did you have a conversation with Mr.

Caines in regards to whothose individuals were?

A I don’t remember. Q Do you recall providing information in regards to this issue in the statement that you were taken – taken from you by Ms. Espeut and Corporal Anderson and Corporal Gibson in the fall of 2007? A Yes. Q Would it assist your memory if you were able to refresh it from that statement? A Yes, it would. . . . Q ... I’m going to refer you to the very bottom of 496 and approximately a third of the way down to page 497. I will just leave that for you. A Okay. Q Does that assist your memory? A Yes. Q Do you recall Mr.

Caines advising or referring to – and when I say referring to someone, not necessarily names, but making references to who the individuals were? A I don’t remember a specific conversation. I remember him referring to them as the Hell ’s Angels. Q And when you say “him” referring to “them” -- A Jeff Caines. Q Okay. And referring to whom? Who was Jeff referring – you indicated he was referring to “them” as the Hell’s Angels. Who is the “them”? A Just people that he had dealt with, not specifically the day in question at Showgirls .

Q When in relation do you – was this conversation in relation to the timeframe where that meeting occurred at Showgirls? A I don’t remember.

Q Do you recall if it was before or after or during? A I believe – I believe it was after. Q Could you give a general timeframe? Like, not necessarily a specific date after, but about how much after it would have been? A No, I can’t. Q Do you recall a conversation with Mr. Caines speaking about the meeting and after the – after those meetings occurred, but speaking about what may or may not have occurred during the course of the meeting or the purpose of the meeting? A The purpose of the meeting was to basically – Q Sorry. Sorry, carry on.

A Just to make it so everybody had to purchase cocaine through him, Jeff Caines. Q And where do you get that understanding from? A From Jeff Caines himself. . . . Q Okay, Do you recall any discussions with Mr. Caines regarding any payments that he may have to make? A Yes, I do. Q What do you recall? A I remember talking to him about him paying for protection. I don ’t remember a specific amount, but I would think it to be around $20,000 a week or something or a month. Q Where did you get that information from? A From Jeff Caines himself .

Q Was there any indication – when you say protection, what are you referring to, protection ?

A I don ’t know if it ’s so much protecting him, but just to give him exclusive rights to Fort McMurray to sell cocaine. Q Was there any indication by Mr. Caines who that was being paid to? A I believe he stated to the bikers. That was it. Q Do you recall that? A Yes. [ 103 ] During his cross-examination of Marche, counsel for Alcantara asked about the Showgirls incident referred to by Marche in his direct examination. The following exchange then took place: Q Then you would leave.

And there was some indication from you yesterday about a reference to who these people were, but you’re not entirely sure who they were. A No, I’m not. Q You didn’t meet any members of people – or, rather, you didn’t meet any people at this meeting who held themselves out to you as members of the Hells’ Angels? A No, I didn’t. Q No one was at this meeting wearing vests or colours purporting to represent the Hells’ Angels? A No, there wasn’t. Q And you don’t know whether, in fact, any people at this meeting were members of the Hells’ Angels? A No, I don’t. Q You could not say whether Mr.

Caines deals directly with the Hells’ Angels? A No, I can’t. Q He did not mention to you any names of people at any time as being members of the Hells’ Angels? A I don ’t believe I ’ve even heard the name Hells ’ Angels come out of Jeff ’s mouth.

... Q There was also some discussion yesterday, Mr. Marche, about Mr. Caines paying protection. Do you recall that? A Yes. Q But you don’t know if he was, in fact, paying protection? A No, I don’t. Q And if he was, you don’t know who it would have been paid to. A No, I don’t. [ 104 ] In re-direct, the following testimony was elicited from Marche: Q Mr. Rice asked you a question, sir, about payment of protection, and in relation it was – your response indicated or asked – asked you whether or not you knew if and if – if Jeff Caines paid protection and who to, if he did.

And I believe your indication was you did not. Do you recall that? A Yes. Q Okay. And I’m just wandering what you meant by – about knowing, what you meant by you didn’t know. A I didn ’t hear anything specifically come from Jeff stating who and/or if he was paying protection. I remember there was a conversation taking – taken place. I don ’t remember if it was him directly. I don ’t remember where I heard it from. Q Okay. And do you recall providing this information in regards to this issue, payment of protection, in your statement on October of 2007? A Yes, I do.

Q And would it assist in refreshing your memory in regards to who that conversation was with and what was said? A Yes. Q I’m going to ask you, sir, I’m going to refer you –

. . . [105] Counsel for Alcantara objected to that line of questioning. The Court stated: COURT: So – and it seems to me that even based on yesterday’s answers, even if you refresh his memory, you can’t get a betteranswer, I don’t think, because he says, A, I’m not sure that it was for protection and, B, to – he says it may be for the exclusivity ofselling drugs in Fort McMurray. It may be – it may be, for want of a better term, a franchise fee. So I – I’m not going to allow you to ask him about – about the protection issue. I’m going to agree with Mr.

Rice that it’s not properredirect. [106] The Accused take the position that Marche resiled to such an extent from his evidence given on direct examination in relation tothe protection agreement, bikers and Hells Angels that it is unreliable and of no probative value.

They suggest they would be prejudicedby admission of his evidence as Marche is no longer available to clarify his conflicting evidence. [107] In considering these arguments, I am bound by the Supreme Court of Canada’s treatment of a very similar issue in R vHawkins, (SCC), [1996] 3 SCR 1043, although the discussion on trial fairness in that case arose in the context of theapplication of the principled exception to the hearsay rule. At issue in Hawkins was the admissibility of the evidence of a witness whotestified at the preliminary inquiry but was married to the accused by the time of trial.

The majority of the Supreme Court of Canadafound that s 715 of the Criminal Code did not apply, but that the evidence in question was admissible under the principled exception.

Themajority discussed a trial judge’s residual discretion to exclude evidence where its probative value is outweighed by its prejudicial effect. [108] The trial judge had suggested that the admission of the transcripts of the witness Graham’s evidence would result in undueprejudice to the accused and the probative value of her testimony was slight due to the direct contradictions within her testimony and theinability of the trier of fact to assess the credibility of Graham.

The Court of Appeal concluded that the witness’ preliminary inquirytestimony could be admitted for the truth of its contents through the principled exception to the hearsay rule. The majority in theSupreme Court of Canada held that the Court of Appeal had been correct.

They recognized that the trial judge had a residual discretion toexclude her prior statement, but were not persuaded the risk of prejudice to the accused outweighed the probative value of the statements. [109] At paras 88-89, the majority made the following comments in relation to the probative value of the evidence: To begin, we do not accept that Graham's prior testimony was devoid of probative value as a result of the internal contradictions of hertestimony. The simple fact of recantation, in our view, does not provide a basis for the exclusion of a witness's testimony.

Indeed, if itwere otherwise, it is difficult to see how a prior inconsistent statement which met the requirements of B. (K.G.) and U. (F.J.) could eversurvive exclusion under a trial judge's residual discretion. In a typical situation of a recantation on the stand, the trier of fact will be ableto observe the witness's contradictory testimony under both direct examination and cross-examination.

Notwithstanding the internalinconsistencies of such testimony, the trier of fact may reasonably conclude on the basis of all the evidence before it that the witness'soriginal story ought to be preferred over the witness's subsequent recantation, or vice versa. In this instance, even in the absence of Graham's presence in court, we believe that the transcripts of the inquiry have probative value indetermining whether or not the co-appellants committed the alleged offences.

The trier of fact will still be able to scrutinize the contentof Graham's transcribed testimony, including her choice of words and verbal hesitations, under both direct and cross examination. Whenthese transcripts are viewed in light of the other surrounding evidence presented by the Crown, the trier of fact may still be able toconclude reasonably that one of her contradictory versions of events ought to be preferred over the other.

Additionally, Graham'spreliminary inquiry testimony has probative value in relation to the matters in respect of which she did not contradict herself (e.g.Hawkins' propensity for abuse and Hawkins' general knowledge of Morin). [110] As in Hawkins, it does not follow that Marche’s prior testimony was devoid of probative value as a result of the internalcontradictions in his testimony. The simple fact of recantation does not provide a basis for the exclusion of a witness's testimony, since

the trier of fact may reasonably conclude on the basis of all the evidence before it that the witness's original story ought to be preferred over the witness's subsequent recantation, or vice versa .

In any event, in reviewing the portion of Marche’s preliminary inquiry evidence set out above, it appears the only points on which he directly contradicted himself are that Caines mentioned the Hells Angels by name and that it was Caines who told him he was paying protection money and to whom. [ 111 ] As in Hawkins , even in the absence of Marche’s presence in court, the transcripts of the inquiry have probative value in determining whether or not the Accused committed the alleged offences.

This Court, as the trier of fact, will be able to scrutinize the content of Marche’s transcribed testimony, including his choice of words and verbal usages, under direct, cross and re-examination. When the transcripts are viewed in light of the other evidence presented by the Crown, this Court may be able to conclude reasonably that one of Marche’s contradictory versions of events ought to be preferred over the other, and is supported by the evidence.

Additionally, Marche’s preliminary inquiry testimony has probative value in relation to the matters in respect of which he did not contradict himself. [ 112 ] The majority in the Supreme Court of Canada noted that there had been no evidence indicating how the admission of the witness’s preliminary inquiry testimony would actually prejudice the accused and the trial process.

It rejected the suggestion the accused would be prejudiced as he could not cross-examine the witness on her previous evidence. [ 113 ] The arguments of the Accused in the present case concerning their inability to further examine Marche on the contradictions in his earlier testimony, and otherwise assess his presentation and demeanour as aspects of trial fairness must meet the same fate as in Hawkins . [ 114 ] Beyond that, the Accused make arguments concerning the frailty of Marche’s evidence that might be ascribed to his drug trafficking or drug use, his role as a Crown informant and witness in the witness protection program, and his motives to testify.

Admission of his evidence despite these apparent frailties does not make the trial unfair as these are questions that will go to the weight of his evidence.

Ultimately, the Court can accept some, all, or none of the evidence of a witness. [ 115 ] The Accused also assert that Marche’s evidence regarding the Showgirls incident, stolen cocaine, the protection or exclusivity agreement, bikers and Hells Angels is prejudicial when combined with evidence suggesting Caines knew Alcantara and Knapczyk and suggesting that Alcantara and Knapczyk are members of the Hells Angels, as it could lead to improper inferences on very tenuous evidence. [ 116 ] Evidence is not prejudicial simply because it is unfavourable to a party's case.

For evidence to be prejudicial, it must operate unfairly against the party or in some way distort the trial process.

This is not a jury trial and I am alive to the concern about making improper inferences. [ 117 ] The probative value of Marche’s preliminary inquiry evidence outweighs any prejudicial effect. [ 118 ] The ultimate reliability, weight and use to which any particular aspect of Marche’s testimony can be put will be decided after the Court has heard and considered all of the evidence in the trial, the Potvin and Vetrovic warnings and other evidentiary rules and exceptions which may apply to this evidence (i.e. the hearsay rule). [ 119 ] There remains the Defence argument on unfairness that the delay of this trial due to late disclosure has resulted in Marche’s inability to testify since he presumably would have been available to testify before the trial went sideways on that account.

In my view, even this chronological assumption cannot be made with certainty given the circumstances of Marche’s death. As noted by the Crown, there is no advantage to the Crown either in using Marche’s preliminary inquiry evidence as opposed to his live testimony. B. Principled Exception to the Hearsay Rule [ 120 ] The Crown also relies on the principled exception to the hearsay rule on its application for admission of Marche’s preliminary inquiry testimony.

1. Arguments of the Crown [ 121 ] The Crown argues that even if s 715 does not apply, it may enter a witness’ preliminary hearing transcripts at the trial of the same matter for the truth of its contents pursuant to the principled exception to the hearsay rule where necessity and reliability are established ( Hawkins at paras 57 and 67 ; R v Khelawon , 2006 SCC 57 at para 91 , [2006] 2 SCR 787).

It maintains that the necessity criterion is satisfied by proof of the witness’ unavailability to testify at trial, e.g., the death of a witness: Hawkins at para 72 ). [ 122 ] The Crown also argues that the reliability criterion is satisfied where the hearsay is made in circumstances that provide sufficient indicia of reliability giving the trier of fact a satisfactory basis for evaluating the truth of the statement.

A witness’ preliminary hearing testimony generally meets this threshold because it is transcribed for accuracy, given under oath and subject to contemporaneous cross-examination, especially where the witness’ testimony is corroborated by the evidence lead at trial ( Hawkins at paras 76-80 ; Khelawon at paras 99-100 ). [ 123 ] The Crown acknowledges that the trial judge retains a residual discretion to refuse the admission of hearsay statements even where necessity and reliability are established if the probative value of the statements is slight and undue prejudice might result to the accused ( Hawkins at para 85 ). 2.

Arguments of Alcantara and Knapczyk [ 124 ] Alcantara and Knapczyk cite Khelawon at paras 3 and 59 , in which Charron J emphasized the presumptive inadmissibility of hearsay evidence and emphasized the primacy of the principled approach to hearsay exceptions. [ 125 ] They submit the Crown must establish the necessity and reliability of that evidence in order for the exception to apply and that even where necessity and reliability are established, the Court still has the discretion to exclude hearsay evidence. [ 126 ] They say that necessity does not simply equate to the unavailability of a witness.

It requires that there be an inability to obtain other evidence of similar quality from another source, citing R v MAA , 2004 BCPC 597 at para 177 . [ 127 ] The Accused argue that most of Marche’s evidence related to his involvement in drug trafficking, his relationship with Caines and his arrest. They say there is or will be other evidence before the Court about these matters, including intercepted com

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