R v Alcantara, 2012 ABQB 521
Opinion
Court of Queen ’ s Bench of Alberta Citation: R v Alcantara, 2012 ABQB 521 Date: 20120817 Docket: 070060157Q1 Registry: Edmonton Between: Her Majesty the Queen - and - John Reginald Alcantara and Alan Peter Knapczyk Accused Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.J. Greckol _______________________________________________________ I.
Introduction................................................................................................................ Page: 6 II. Judicial History........................................................................................................... Page: 7 III. The Crown ’ s Theory................................................................................................... Page: 8
IV. The Investigation...................................................................................................... Page: 10 V. Issues........................................................................................................................ Page: 12 VI. Count #1 - Conspiracy.............................................................................................. Page: 12 A. The Charge................................................................................................... Page: 12 B.
The Law........................................................................................................ Page: 12 1. Legislation ........................................................................................ Page: 12 2. The elements of conspiracy ............................................................... Page: 13 3. Party liability ..................................................................................... Page: 15 4. The co-conspirator ’ s exception to the hearsay rule ............................ Page: 15 C.
Step One - Did a Conspiracy Exist?.............................................................. Page: 31 1. Evidence on context .......................................................................... Page: 31 (
a) Production, packaging, distribution, pricing, consumption patterns, jargon and other matters relating to cocaine in 2005- 2006 .............................. Page: 31 (
b) Code words used in cocaine trafficking ................................ Page: 34 (
c) Nicknames ............................................................................ Page: 35 (
d) Characteristics of Hells Angels Motorcycle Club .................. Page: 36 (
i) Evidence of Mr. Lemieux .......................................... Page: 36 (ii) Arguments of the Accused ........................................ Page: 41 (iii) Weight to be given to Mr. Lemieux ’ s evidence ......... Page: 41 2. Personal connections between the alleged co-conspirators ................ Page: 43 (
a) Alcantara ’ s concessions ........................................................ Page: 43 (
b) Miscellaneous ....................................................................... Pa ge: 44 (
c) Phone lists ............................................................................. Page: 44 (
d) Other items found during searches ........................................ Page: 48 (
e) Intercepted communications ................................................. Page: 48 (
f) Seen Together ....................................................................... Page: 51 (
g) Involvement with HAMC ...................................................... Page: 53 (
i) Caines ....................................................................... Page: 53 (ii) Alcantara ................................................................... Page: 55 (iii) Knapczyk .................................................................. Page: 59 (iv) LePoidvin .................................................................. Page: 60 (
v) Cantrill ...................................................................... Page: 61 (vi) Mannarino ................................................................. Page: 61 (vii) Sukys ........................................................................ Page: 62 (viii) Anthony Saunders ..................................................... Page: 62 (
h) Conclusions .......................................................................... Page: 63 3. Seizures ............................................................................................. Page: 63
(
a) September 15, 2005 - McDonald ’ s Fort McMurray residence Page: 63 (
b) October 27, 2005 - Flight ’ s vehicle stop ................................ Page: 66 (
c) November 10, 2005 - Vehicle stop of Caines ........................ Page: 67 (
d) November 15, 2005 - Van Den Hurk shooting ..................... Page: 67 (
e) November 24, 2005 - Vehicle stop of Marche and Weiss ..... Page: 68 (
f) December 1, 2005 - Search of King rental property, Fort McMurray Page: 69 (
g) December 14, 2005 - Search of Caines ’ Fort McMurray residence Page: 71 (
h) January 17, 2006 - Cardinal search ....................................... Page: 72 (
i) January 19, 2006 - Search of Alcantara ................................ Page: 74 (
j) February 9, 2006 - Search of Alcantara ’ s Edmonton residence Page: 74 (
k) March 4, 2006 - Farhan Sattar vehicle stop near Lake Louise Page: 75 (
l) May 31, 2006 - Search of Caines ’ Calgary campsite ............. Page: 76 (
m) May 31, 2006 - Search of Caines ’ Fort McMurray residence . Page: 76 (
n) May 31, 2006 - Search of Caines ’ Calgary residence ............ Page: 78 (
o) May 31, 2006 - Search of Ricco King ’ s residence ................. Page: 81 (
p) June 28, 2006 - Search of Weiss ’ room at Podollan Inn & Rez, Fort McMurray .............................................................................................. Page: 81 4. Marche ’ s evidence ............................................................................ Page: 81 (
a) Evidence from the preliminary inquiry .................................. Page: 81 (
i) Summer 2004 to Summer 2005 ................................. Page: 82 (ii) July 2005 - Showgirls incident .................................. Page: 83 (iii) The group ................................................................. Page: 88 (iv) Marche obtaining drugs ............................................ Page: 91 (
v) Payment for the drugs ............................................... Page: 95 (vi) September 15, 2005 - McDonald seizure .................. Page: 96 (vii) October 27, 2005 - Flight ’ s vehicle stop .................... Page: 97 (viii) November 10, 2005 - Caines ’ vehicle stop ................ Page: 97 (ix) November 24, 2005 - Marche and Weiss ’ Red Deer vehicle stop Page: 97 (
x) December 1, 2005 - Eymundson Drive seizure ......... Page: 98 (xi) January 17, 2006 - Cardinal search ........................... Page: 99 (xii) Drug use and criminal record .................................... Page: 99 (
b) Defence concerns with Marche ’ s evidence ............................ Page: 99 (
c) Corroboration ...................................................................... Page: 101 (
i) September 15, 2005 - MacDonald seizure ............... Page: 101 (ii) Stolen cocaine ......................................................... Page: 102 (iii) Payment to Caines ................................................... Page: 103 (iv) Payment given to Flight .......................................... Page: 103 (
v) Caines ’ distributors expecting cocaine but they had to wait for more than a week after Flight seizure ................................................... Page: 105
(vi) Caines tells Bird to collect his “ thing ” from Cardinal Page: 111 (vii) Hoskins acted as a courier and bad cocaine incident Page: 111 (viii) November 23 and 24, 2005 - Marche and Weiss ’ trip to Calgary and vehicle stop ................................................................................ Page: 113 (
d) Conclusion on Marche Evidence ......................................... Page: 117 5. Conclusion on whether there was a conspiracy ............................... Page: 121 D. Step Two - Probable Membership in the Conspiracy................................... Page: 122 1. Caines ............................................................................................. Page: 122 (
a) Assets and lack of employment ........................................... Page: 122 (
b) Other evidence consistent with membership in conspiracy to traffic in cocaine ............................................................................................ Page: 123 2. McDonald ....................................................................................... Page: 127 3. Cardinal .......................................................................................... Page: 128 4. Geebs (Bird) .................................................................................... Page: 129 5. Gregoire ..........................................................................................
Page: 130 6. Flight ............................................................................................... Page: 131 7. Hoskins ........................................................................................... Page: 132 8. Caines Sr. ........................................................................................ Page: 133 9. Penton ............................................................................................. Page: 134 10. Ricco King ...................................................................................... Page: 135 11.
The Sattars ...................................................................................... Page: 137 12. Van Den Hurk ................................................................................. Page: 138 13. Alcantara and Knapczyk ................................................................. Page: 139 (
a) Crown argument ................................................................. Page: 139 (
b) Alcantara ’ s argument ........................................................ Page: 139 (
c) Knapczyk ’ s argument ......................................................... Page: 139 (
d) Marche ’ s evidence .............................................................. Page: 140 (
e) Walker evidence ................................................................. Page: 140 (
f) Alcantara and Knapczyk were associated with the HAMC, July 1, 2005 - March 31, 2006 .................................................................................... Page: 141 (
g) Evidence of Alcantara ’ s probably membership in the conspiracy Page: 142 (
i) General ................................................................... Page: 142 (ii) Intercepted communications and surveillance ......... Page: 142 (iii) Conclusion on Alcantara ’ s probable membership in the conspiracy Page: 150 (
h) Evidence of Knapczyk ’ s probable membership in the conspiracy Page: 151 (
i) Intercepted communications and surveillance ......... Page: 151 (ii) Conclusion on Knapczyk ’ s probable membership in the conspiracy Page: 156 E. Step Three - Proof Beyond a Reasonable Doubt of Membership................. Page: 157 1. Tabs 1 to 18 .................................................................................. Page: 157 (
a) Arguments of the parties ..................................................... Page: 157
(
b) Analysis .............................................................................. Page: 159 2. Tabs 19 to 31 .................................................................................. Page: 160 (
a) Arguments of the parties ..................................................... Page: 160 (
b) Analysis .............................................................................. Page: 161 3. Tabs 38-65 ...................................................................................... Page: 162 (
a) Arguments of the parties ..................................................... Page: 162 (
b) Analysis .............................................................................. Page: 164 4. Tabs 66 to 68 .................................................................................. Page: 167 (
a) Arguments of the parties ..................................................... Page: 167 (
b) Analysis .............................................................................. Page: 167 5. Tab 73 to 85 .................................................................................... Page: 168 (
a) Arguments of the parties ..................................................... Page: 168 (
b) Analysis .............................................................................. Page: 168 6. Tabs 84, 86, 129 ............................................................................. Page: 169 (
a) Arguments of the parties ..................................................... Page: 169 (
b) Analysis .............................................................................. Page: 169 7. Tab 129 ........................................................................................... Page: 170 (
a) Arguments of the parties ..................................................... Page: 170 (
b) Analysis .............................................................................. Page: 170 8. Tabs 175, 190, 195, 197 ................................................................. Page: 171 (
a) Arguments of the parties ..................................................... Page: 171 (
b) Analysis .............................................................................. Page: 171 9. Tabs 214, 220, 235, 255, 256, 258, 272, 291 ................................. Page: 172 (
a) Arguments of the parties ..................................................... Page: 172 (
b) Analysis .............................................................................. Page: 172 10. Tabs 305 to 369 .............................................................................. Page: 173 (
a) Arguments of the parties ..................................................... Page: 173 (
b) Analysis .............................................................................. Page: 173 11. Tabs 369 to 399 .............................................................................. Page: 173 (
a) Arguments of the parties ..................................................... Pa ge: 173 (
b) Analysis .............................................................................. Page: 174 12. Tabs 409 to 413 .............................................................................. Page: 176 (
a) Arguments of the parties ..................................................... Page: 176 (
b) Analysis .............................................................................. Page: 177 13. Tabs 414 to 417 .............................................................................. Page: 179 (
a) Arguments of the parties ..................................................... Page: 179 (
b) Analysis .............................................................................. Page: 179 14. Tabs 422 - 464 ................................................................................ Page: 179
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a) Arguments of the parties ..................................................... Page: 179 15. Tabs 434 to 464 .............................................................................. Page: 182 (
a) Arguments of the parties ..................................................... Page: 182 (
b) Analysis .............................................................................. Page: 184 F. Conclusion on Whether Alcantara and Knapczyk were Members of the Conspiracy Page: 187 VII. Count # 2 - Trafficking in Cocaine.......................................................................... Page: 189 A. The Law...................................................................................................... Page: 189 B. Arguments of the Crown............................................................................. Page: 191 C.
Arguments of the Defence.......................................................................... Page: 192 D. The Evidence of Trafficking....................................................................... Page: 192 E. The Evidence Against Alcantara................................................................. Page: 194 F. The Evidence Against Knapczyk................................................................ Page: 194 G. Conclusion on Whether Alcantara or Knapczyk Trafficked in Cocaine...... Page: 195 VI.
Count #3 - Committing an Indictable Offence for the Benefit of a Criminal Organization Page: 195 A. The Law...................................................................................................... Page: 195 1. Elements of the offence ................................................................... Page: 196 (
a) Existence of a criminal organization ................................. Page: 197 (
b) In association with, at the direction of, for the benefit of ..... Page: 199 (
c) Mens rea ............................................................................. Page: 200 2. Co-Conspirators' exception to hearsay in criminal organization ...... Page: 200 B. Crown ’ s Arguments.................................................................................... Page: 202 C. Defence Arguments.................................................................................... Page: 203 D. Analysis...................................................................................................... Page: 205 1. Criminal organization ...................................................................... Page: 205 (
a) Longevity ............................................................................ Page: 205 (
b) Structure and membership ................................................... Page: 205 (
c) Interdependence and co-operation ...................................... Page: 206 (
d) Business and personal relationships .................................... Page: 206 (
e) Profit ................................................................................... Page: 207 (
f) Trust among members ......................................................... Page: 207 (
g) Buying and selling cocaine outside of the group ................. Page: 208 (
h) Violence and threats of violence to protect the organization and its business Page: 209 (
i) Caines directing the organization ........................................ Page: 210 (
j) Territory, price fixing and protection .................................. Page: 210 (
k) Conclusion on criminal organization ................................... Page: 211 2. In association with, at the direction of, for the benefit of ................. Page: 212
3. Mens rea ......................................................................................... Page: 212 4. Conclusion on Count #3 ................................................................. Page: 212 VIII. Conclusions .......................................................................................................... Page: 213 I. Introduction [ 1 ] This prosecution was the result of 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 [IROC] Unit. [ 2 ] The investigation began about February 7, 2005. [ 3 ] As a result of the investigation the two Accused, John Reginald Alcantara [Alcantara] and Alan Peter Knapczyk [Knapczyk], together with Jeffrey Mark Caines [Caines] were jointly charged with committing an offence contrary to s 465(1)(
c) of the Criminal Code [ Code ].
Specifically, they were charged with conspiring, between July 1, 2005 and March 31, 2006, at or near Fort McMurray, Calgary, Edmonton and elsewhere in Alberta, with Aaron Pat McDonald [McDonald], Jody Smith [Smith], Michael Francis Marche [Marche], Cal Gregoire [Gregoire], Jeremy Cardinal [Cardinal], Charles Weston Flight [Flight], John Norman Caines [Caines Sr.], Ricco King, Melissa Diane King, Mark Andrew Hoskins [Hoskins], Farhan Sattar, Kamran Sattar, James Richard Correia [Correia], Patrick Felix [Felix], Anthony Saunders [Saunders], Beau Yakimishyn [Yakimishyn], Josh Penton [Penton], Nicholas Bela Van Den Hurk [Van Den Hurk] and with persons unknown, to unlawfully traffic in cocaine contrary to s 5(1) of the Controlled Drugs and Substances Act [ CDSA ]. [ 4 ] The Accused and Caines also were jointly charged with trafficking in cocaine, between July 1, 2005 and March 31, 2006, at or near Fort McMurray, contrary to s 5(1) of the CDSA . [ 5 ] Further, the Accused and Caines were jointly charged with trafficking and conspiring to traffic in cocaine, between August 22, 2005 and February 14, 2006, at or near Fort McMurray, Edmonton, and elsewhere in Alberta, for the benefit of, at the direction of, or in association with a criminal organization of at least three persons, contrary to s 467.12 of the Code .
The persons listed included Caines, McDonald, Marche, Gregoire, Cardinal, Flight, Hoskins, and persons unknown. [ 6 ] On October 7, 2011, Caines was severed from the Indictment and the charges against him were resolved before another judge. [ 7 ] By way of a March 6, 2008 notice of intention under s 189(5) of the Code , the Crown gave notice that it would seek to introduce 464 of the intercepted private communications into evidence at the trial of the Accused.
On September 15, 2010, it served the Accused with a revised notice of intention which listed 13 fewer intercepted private communications than the original notice. II. Judicial History
[ 8 ] Included among the rulings given in this case are: (
a) The Accused’s application for a stay of proceedings based on unreasonable delay pursuant to ss 7, 11(b), 24(1) of the Charter was dismissed February 14, 2011 ( R v Caines , 2011 ABQB 82 , 43 Alta LR (5th) 226 [ Delay Decision ]). (
b) The Accused’s application for a stay of proceedings based on abuse of process and breach of their fair trial interests pursuant to s 7 of the Charter was granted in part on November 10, 2011. The remedy granted was exclusion of communications intercepted in breach of live monitoring conditions: R v Caines , 2011 ABQB 692 , 518 AR 227 [ Stay Decision ]). (
c) The Accused’s application to exclude intercepted communications based on a subfacial challenge to the affiant’s affidavit was dismissed on November 21, 2011 ( R v Alcantara , 2011 ABQB 719 , 521 AR 130 [ Garofoli Decision ]). (
d) The Accused’s application to exclude intercepted communications based on breaches of ss 7, 8, and 11(
b) of the Charter by the fashion in which the authorizations were obtained and implemented was dismissed on January 13, 2012 ( R v Alcantara , 2012 ABQB 31 , 521 AR 143; Addendum: 2012 ABQB 354 [collectively the Exclusion Decision ]). (
e) The Accused’s application for a declaration that ss 185(1.1) and 186(1.1) of the Criminal Code are of no force and effect as being contrary to s 8 of the Charter and therefore the interceptions were not authorized by law was dismissed on January 27, 2012 ( R v Alcantara , 2012 ABQB 73 , 521 AR 221 [ Constitutional Decision ]). (
f) The Crown’s application for admission of preliminary inquiry transcripts of a deceased Crown witness was granted on April 2 2012 ( R v Alcantara , 2012 ABQB 219 [ Marche Decision ]). (
g) The Crown’s application to qualify retired S/Sgt. Jacques Lemieux as an expert on the Hells Angels Motorcycle Club was granted on April 3, 2012 ( R v Alcantara , 2012 ABQB 225 [ Qualifying Expert Decision ]). (
h) The Accused’s application for a declaration that their arrests and the seizure of Hells Angels Motorcycle Club vests and contents incidental to their arrests were contrary to s 8 of the Charter was granted on May 23 2012 ( R v Alcantara , 2012 ABQB 341 [ Search and Seizure Decision ]). III. The Crown ’s Theory [ 9 ] The Crown’s theory is that Alcantara and Knapczyk conspired with Caines and the other unindicted co-conspirators to traffic significant quantities of cocaine in the Fort McMurray area at the kilogram and multiple kilogram level.
It alleges that the conspiracy had two components. [ 10 ] The first was the drug distribution operation, which consisted of a number of individuals, including Caines. The Crown contends that Caines was the head of that operation and negotiated the supply of cocaine to various distributors, including Marche, McDonald, Cardinal and Gregoire. The Crown maintains the operation also involved couriers who transported cocaine shipments and drug proceeds on behalf of Caines. Those individuals included Flight, Hoskins and others.
In addition, the operation included suppliers, the individuals from whom Caines purchased the cocaine for the purpose of supplying it to his distributors. The Crown alleges the suppliers included Van Den Hurk of the greater Vancouver area and Farhan Sattar, Kamran Sattar and Ricco King of the Calgary area. [ 11 ] The Crown theorizes that Caines negotiated the purchase of cocaine shipments from various suppliers and would then instruct his couriers to pick up, pay for and transport the cocaine shipments to the Fort McMurray area. Once the shipments arrived at or near
Fort McMurray, Caines would arrange to have specified distributors store the cocaine shipments and distribute the cocaine to individual distributors. Caines would instruct the distributor storing the cocaine who it was to be provided to and how much cocaine each distributor was to receive. Caines sold the cocaine to the individual distributors at a specified price. The distributor(
s) storing the shipment would distribute the cocaine to the individual distributors as instructed by Caines. [ 12 ] After having supplied cocaine to his distributors, Caines would then seek payment from the individual distributors. Generally, he collected his payment by instructing couriers to collect it from the individual distributors. In this way, Caines maintained as hands-off an approach as possible to the drugs themselves. The individual distributors would then sell their cocaine on their own, seeking whatever profit they could.
It is the Crown’s theory that this distribution operation constituted Caines’ criminal organization, involving a group of three or more persons, including Caines, his distributors and his couriers, and whose main purpose was the trafficking of cocaine and conspiracy to traffic in cocaine. [ 13 ] According to the Crown’s theory, the second component of the conspiracy was an exclusivity agreement. The Crown suggests that in May or June 2005, Caines entered into an agreement with members of the Nomads
chapter of the Hells Angels Motorcycle Club [HAMC], including Lee LePoidvin [LePoidvin], a prospect of the
chapter at the time, and that pursuant to that agreement, Caines was promised the exclusive rights to supply cocaine to his distributors in a specified geographical area in Fort McMurray. The agreement was to prevent or remove anyone competing with Caines in supplying cocaine in that geographical area and to prevent individuals supplying cocaine in adjacent areas from undercutting the prices being charged for cocaine by Caines and his distributors.
The agreement also encompassed protection of Caines and his distributors from individuals who threatened them or attempted to steal from their cocaine distribution operation. The Crown contends that, in return, Caines paid a $20,000 weekly fee or tax to the individuals alleged. The reputation of the HAMC was used to assist in enforcing the agreement. [ 14 ] The Crown’s theory is that Alcantara and Knapczyk entered the conspiracy in August 2005, thereby assisting Caines’ criminal organization.
They did so by agreeing with Caines to take over and enforce the exclusivity agreement to assist Caines in distributing cocaine in the Fort McMurray area. The Crown alleges that Alcantara was a prospect of the HAMC’s Edmonton
chapter at the time, while Knapczyk was a full member of the
chapter and Alcantara’s
chapter sponsor. It asserts they used their membership in the HAMC and its reputation to enforce the agreement. [ 15 ] According to the Crown, Alcantara was more of a front man in the arrangement, collecting the weekly fee from Caines and enforcing the terms of the agreement. Knapczyk was more of the authority behind the scenes, using the HAMC to enforce the agreement, although it alleges he did participate in enforcing the terms of the agreement as well. [ 16 ] The Crown’s theory is that the switch from LePoidvin to Alcantara and Knapczyk did not occur without disagreement from the Nomad chapter.
However, it says that Alcantara, with assistance from Knapczyk, won control over enforcement of the agreement. It contends the agreement between Caines, Alcantara and Knapczyk continued from at least August 23, 2005 to February 14, 2006. IV. The Investigation [ 17 ] The investigation began on or before February 7, 2005, with S/Sgt. Greidanus of the RCMP in command and Sgt. Mark Anderson (then Cpl. Anderson) as lead investigator.
Throughout the course of the investigation, which ran until November 2006, the RCMP used various techniques including searches of electronic databases, physical surveillance, informants, dialed number recorder [DNR] warrants, tracking device warrants, video surveillance warrants and search warrants obtained pursuant to the Code and the CDSA . [ 18 ] DNRs ran from February 22, 2005 to May 15, 2005 and were hooked up to Alcantara’s main number. [ 19 ] Marche served as an informant for the RCMP through part of 2005 and 2006, and provided a number of witness statements to the police. [ 20 ] In June 2005, the police monitored activities at the HAMC’s clubhouse at 120 th Street and Fort Road in Edmonton and during one of their motorcycle rides to Grande Prairie.
[ 21 ] The RCMP obtained five authorizations to intercept private communications as part of the Project Koker investigation (WT1709, WT1712 and WT1713). Both WT1712 and WT1713 were comprised of two mirror authorizations; one based on ss 185(1) and 186(1) of the Code , reliant on investigative necessity, and the other based on ss 185(1.1) and 186(1.1) of the Code , reliant on an allegation of criminal organization. Sergeant Anderson swore the affidavits in support of the wiretap authorizations.
Date of Affidavit /Authorization Authorization Number Granted by Date When Authorizations in Place Aug. 22, 2005/ Aug.23, 2005 WT1709 Slatter J Aug. 23, 2005 - Oct. 21 2005 Oct. 13, 2005/ Oct. 17, 2005 WT1712 (two concurrent authorizations) Slatter J Oct. 18, 2005 - Dec. 16, 2005 Dec. 13, 2005/ Dec. 14, 2005 WT1713 (two concurrent authorizations) Slatter J Dec. 16, 2005 - Feb. 13, 2006 [ 22 ] Sergeant Anderson testified that Alcantara was the target of WT1709 and interceptions were permitted on cell phones, house phones and vehicles. Alcantara continued to be a target of WT1712.
Additional targets included Knapczyk, Flight, Caines, Yakimishyn and Correia. Alcantara and Yakimishyn were maintained as targets in WT1713 and Sean David Critch [Critch] was added. Knapczyk, Caines, Flight and Correia were dropped as principal known persons, and became other known persons. [ 23 ] Pursuant to the authorizations, the police intercepted some 51,733 private communications (not including cell block interceptions) from August 23, 2005 to February 13, 2006.
A compact disk containing the recording of over 350 of the private communications intercepted in Project Koker, in audio form, was entered as an exhibit and played in court.
A copy of the written transcripts of the communications recorded on the compact disk also was entered as an exhibit. [ 24 ] Surveillance continued through the remainder of 2005 and into 2006, until takedown day on November 28, 2006. [ 25 ] In 2005 and 2006, an RCMP proceeds of crime investigator swore informations to obtain financial records for Alcantara, Caines, Yakimishyn, and related businesses. [ 26 ] Various searches of residences, vehicles and personal searches were conducted by the police pursuant to warrants and in connection with the arrests of the Accused and other alleged co-conspirators. [ 27 ] On November 24, 2006, two separate Informations were sworn (Docket Nos. 061444279P1 and 061444l47P1) in these proceedings.
Alcantara was charged in both. Caines and Knapczyk also were charged in Information No. 061444279P1. [ 28 ] November 28, 2006 was takedown day. Alcantara and Knapczyk were arrested in Edmonton. The police also arrested a number of other persons at various locations in Alberta and other parts of Canada who were charged in multiple separate proceedings. [ 29 ] Ricco King, Farhan Sattar, Kamran Sattar and Melissa Diane King were charged with various drug related offences in a prosecution referred to as "Koker C."
[ 30 ] On December 5, 2006, Caines turned himself in to the police. [ 31 ] 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 with trafficking in cocaine 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 . The current prosecution is referred to as "Koker A." [ 32 ] On December 4, 2007, Information No. 071521769P1 was sworn as a replacement for Information No. 061444147P1. In that Information, Alcantara was jointly charged with Yakimishyn, 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. That prosecution is referred to as "Koker B." V. Issues [ 33 ] The issues are whether the Crown has proven beyond a reasonable doubt that Alcantara and Knapczyk are guilty of: Count #1 conspiracy to traffic cocaine Count #2 trafficking cocaine Count #3 assisting a criminal organization. VI. Count #1 - Conspiracy A.
The Charge [ 34 ] The Accused are jointly charged with conspiring, between July 1, 2005 and March 31, 2006, at or near Fort McMurray, Calgary, Edmonton and elsewhere in Alberta, with McDonald, Smith, Marche, Gregoire, Cardinal, Flight, Caines Sr., Ricco King, Melissa King, Hoskins, Farhan Sattar, Kamran Sattar, Correia, Felix, Saunders, Yakimishyn, Penton, Van Den Hurk and with persons unknown, to unlawfully traffic in cocaine contrary to s 5(1) of the CDSA , thereby committing an offence contrary to s 465(1)(
c) of the Code . B. The Law 1. Legislation [ 35 ]
Section 5 of the CDSA states that: 5(1) No person shall traffic in a substance included in
Schedule I, II, III or IV or in any substance represented or held out by that
person to be such a substance.
(2) No person shall, for the purpose of trafficking, possess a substance included in
Schedule I, II, III or IV. [36] Cocaine is a substance listed under
Schedule I. [37] Section 465(1)(
c) of the Criminal Code provides that: 465(1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy: (
c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (
a) or (
b) is guilty of anindictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, beliable; and... 2. The elements of conspiracy [38] In R v Alcantara, 2009 ABQB 524, 24 Alta LR (5th) 248 at para 31 (Koker B Alcantara), Sulyma J stated that for purposesof s 465(1)(
c) of the Code, a conspiracy is an agreement between two or more persons to commit an unlawful act.
In order to convictunder s 465(1)(c), the Crown must prove the following two elements beyond a reasonable doubt (Koker B Alcantara at para 32, citing Rv Lam, 2005 ABQB 759 at para 25, 70 WCB (2d) 664 and R v O'Brien, (SCC), [1954] SCR 666): (1) an agreement by two or more persons to commit a criminal offence; and (2) an intention to put their common design into effect. [39] These essential elements of conspiracy are sometimes broken down further into three parts (see R v Steinhubl, 2010 ABQB602 at para 56, 492 AR 1, referring to O'Brien): (1) an agreement by two or more persons to commit a criminal offence; (2) an intention by two or more persons to agree; and (3) an intention to put this common design into effect. [40] Sulyma J summarized the actus reus and mens rea of conspiracy as follows (Koker B Alcantara at paras 33-39): In R. v.
Papalia; R. v. Cotroni, (SCC), [1979] 2 S.C.R. 256 at 276, the court discussed the actus reus of conspiracy,stating: The word "conspire" derives from two Latin words, "con" and "spirare", meaning "to breath together." To conspire is to agree. Theessence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is the gist of the offence ... Theactus reus is the fact of agreement ... The agreement reached by the co-conspirators may contemplate a number of acts or offences. Any
number of persons may be privy to it. Additional persons may join the ongoing scheme while others may drop out. So long as there is acontinuing overall, dominant plan there may be changes in methods of operation, personnel, or victims, without bringing the conspiracyto an end. The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a commonagreement to which the acts are referable and to which all of the alleged offenders were privy. There must be a meeting of the minds, a common purpose or mutuality of object between the conspirators.
The agreement does not have to be explicit. An implied or tacit agreement may provide the actus reus of conspiracy. The Crown need not establish that the parties to the conspiracy were in direct communication with one another or even that they wereaware of the identify of their fellow conspirators. Nor need it prove each conspirator was aware of the details of the common scheme, aslong as it shown each "was aware of the general nature of the common design and intended to adhere to it:" R. v. Longworth (1982), (ON CA), 67 C.C.C. (2d) 554 at para. 49 (Ont. C.A.).
The Court may find that some but not all of those alleged to have been conspirators were in fact members of the conspiracy, as long as itfinds there were at least two members of the conspiracy. In R. v. O'Brien, (SCC), [1954] S.C.R. 666, the court confirmed that the mens rea of conspiracy consists of an actualintention on the part of the accused to agree to pursue a common unlawful object and an intention to put the common design into effect. The offence is complete on the formulation of an agreement to perform the illegal act, even if no subsequent acts in furtherance of theagreement are undertaken.
Any such acts would simply serve to prove the essential ingredient of the offence; namely, the agreementitself: R. v. Douglas, (SCC), [1991] 1 S.C.R. 301 at para. 28. [Emphasis added.] [41] Sulyma J explained the need to consider all of the evidence in context before coming to a conclusion on the offence ofconspiracy (Koker B Alcantara at para 142): All of the evidence regarding the conspiracy must be considered in context. Indeed, as stated in R. v. Ahern, it would be unusual for theCrown to be able to garner direct evidence of persons conspiring.
In most instances, as in the case before me, the trier of fact will have toweigh each piece of evidence and consider it in the nature of a building block in reaching a conclusion as to whether the conspiracy hasbeen proven beyond a reasonable doubt. As stated in [R. v. Paradis, (SCC), [1934] S.C.R. 165 at 168] the actualagreement may have to be gathered from the cumulative effect of “several isolated doings,” each possibly having little or no value takenby itself.
Also, it is necessary to remember that the inquiry is not as to the acts done in furtherance of the agreement, but whether in factthere was a common agreement. 3. Party liability [42] In R v Trieu, 2008 ABCA 143 at paras 33 and 34, 429 AR 200, Costigan JA for the Alberta Court of Appeal held that to be aparty to conspiracy to traffic in cocaine, an accused must have aided or abetted in the formation of the agreement to traffic.
Aiding orabetting the trafficking itself would make the person a party to the offence of trafficking, not conspiracy: It follows from these principles that for Trieu to be a party to the offence of conspiracy to traffic in cocaine, the Crown had to prove thatTrieu performed acts for the purpose of aiding the formation of an agreement to traffic in cocaine. Acts performed after the agreementwas formed did not aid in the commission of the offence of conspiracy on the facts of this case.
Therefore, Trieu could not be a party tothe offence of conspiracy for facilitating the conspirators in attaining their object of trafficking in cocaine. Although acts performed afterthe agreement was reached could have aided in the commission of the offence of trafficking, Trieu was not charged with the offence oftrafficking. This conclusion does not ignore the possibility that conspiracy may be an ongoing crime. Members may leave the conspiracy and newmembers may join: Cotroni at 276 (S.C.R.).
In an ongoing conspiracy of that nature, party liability can arise after the initial agreement isformed if, for example, a person aids another to join the agreement. However, no such allegation was advanced against Trieu.
4. The co-conspirator’s exception to the hearsay rule [43] Sulyma J outlined in Koker B Alcantara at paras 40-60 how the law on conspiracy and the law on hearsay intersect. Inparticular, the Crown is permitted to rely on hearsay evidence to prove the elements of conspiracy if certain conditions are satisfied(Koker B Alcantara at para 40, citing Lam at para 26).
The difficulty often lies in determining what constitutes hearsay evidence (KokerB Alcantara at paras 41-46). [44] Hearsay has two defining features, namely: (1) it is a statement made by someone other than the person who repeats thestatement while testifying in court, such that there is no opportunity to cross-examine the declarant; and (2) it is adduced to prove thetruth of its contents (Koker B Alcantara at para 41, citing R v Smith, 2007 NSCA 19, 216 CCC (3d) 490, appeal on other issuedismissed 2009 SCC 5 , [2009] 1 SCR 146). [45] In the context of criminal conspiracy, “while acts and declarations of alleged co-conspirators might be regarded ascircumstantial evidence of the existence of a conspiracy, those same acts and declarations might be considered hearsay for the purpose ofestablishing which individuals were members of the conspiracy” (Koker B Alcantara at para 44, referring to Smith at para 190).
Assuch, this evidence is generally not considered hearsay for the purpose of determining whether or not a conspiracy existed, but rather iscircumstantial evidence of its existence. [46] When out-of-court acts or declarations of co-conspirators are adduced for the truth of their contents as evidence against theaccused, they do amount to hearsay. However, the co-conspirators' exception to the hearsay rule permits this evidence to be used againstthe accused if certain conditions are met.
In Koker B Alcantara at para 46, Sulyma J referred to the following quote from R v Chang(2003), (ON CA), 173 CCC (3d) 397 at para 53 (Ont CA): "[t]he [rule] allows the acts and declarations of anaccused's alleged co-conspirators, done or made in furtherance of the conspiracy, to be adduced as evidence against the accused." [47] To determine whether the co-conspirators' exception to the hearsay rule applies, thereby permitting the use of such evidenceagainst the accused, the court must apply the three-step test set out by the Supreme Court of Canada in R v Carter, (SCC), [1982] 1 SCR 938.
As noted in R v Wu, 2010 ABCA 337 at para 39, 266 CCC (3d) 482 (also involving charges of trafficking incocaine and conspiracy to traffic in cocaine): ... the test in Carter applies to the admission of evidence of acts and statements in furtherance of conspiracy by persons alleged to havebeen party to that conspiracy as against other persons also alleged to have been party to that conspiracy even though those acts andstatements in furtherance are done in the absence of those other persons. [48] The Supreme Court of Canada summarized the three-step Carter test in R v Barrow, (SCC), [1987] 2 SCR694 at para 73: 1.
The trier of fact must first be satisfied beyond a reasonable doubt that the alleged conspiracy in fact existed. [The wording used bythe Supreme Court of Canada in Carter at this stage of the test is that the trier of fact is “to consider whether on all the evidence they aresatisfied beyond a reasonable doubt that the conspiracy charged in the indictment existed” (at 947).] 2.
If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against theaccused and decide on a balance of probabilities whether or not [the accused] is a member of the conspiracy. 3. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then [the trier of fact]must go on and decide whether the Crown has established such membership beyond reasonable doubt.
In this last step only, the trier offact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the objectof the conspiracy as evidence against the accused on the issue of his guilt.
Step one: proof of the existence of the conspiracy [ 49 ] In Koker B Alcantara , Sulyma J considered what the Supreme Court of Canada intended in Carter when it said that, at the first stage of the test, the trier of fact must decide “on all the evidence” whether the trier of fact is satisfied beyond a reasonable doubt that the conspiracy alleged in the indictment existed. She acknowledged (at paras 49-51) that controversy exists in the case law as to whether or not it includes only admissible evidence and not evidence provisionally admissible under the co-conspirator’s exception.
Ultimately, she concluded (at para 54) that there was really: ... no difference in result between the two views. They both accept that acts and declarations of a co-conspirator in apparent furtherance of the conspiracy can be considered when determining whether a conspiracy existed, as these do not constitute hearsay for that purpose. [ 50 ] In concluding that the acts and declarations of a co-conspirator made in furtherance of the conspiracy are not hearsay for the purpose of deciding whether the alleged conspiracy existed at stage one of the Carter test, Sulyma J relied on David M.
Pacciocco and Lee Stuesser, the authors of The Law of Evidence , 5th ed, (Toronto: Irwin Law Inc, 2008) at 157, and the Nova Scotia Court of Appeal decision in Smith at para 236 ( Koker B Alcantara at paras 52-53, 55 ): In The Law of Evidence , 5th ed., (Toronto: Irwin Law Inc., 2008) at p. 157, the authors David M.
Pacciocco and Lee Stuesser take the position that the weight of authority favours this second view, stating that: It is settled that all acts and statements made by the alleged co-conspirators in the formation of, or apparent furtherance of, a conspiracy, are included in the phrase “all of the evidence,” and can be considered during the part one inquiry. At first blush it may appear circular to allow statements made by A to be used as part of the co-conspirators tests, when that test is being employed to determine whether those very same statements by A should be used against B during the trial.
Bear this in mind, though: The issues are different. In the part one inquiry, the issue is not whether A’s statements in furtherance of the conspiracy can be used to prove B’s guilt, but whether there is a conspiracy. There is nothing circular in treating evidence differently on different issues. The authors go on to explain that at the first stage of the inquiry, such statements are not really hearsay at all. They are circumstantial evidence of the existence of the conspiracy as their relevance lies in the fact they were said.
They are direct evidence of the formation or furtherance of the agreement to commit an offence. Their admission does not depend on the truth of their content. Even where it does, they “will tend to be statements accompanying or explaining acts done in furtherance of the conspiracy and, like statements caught by the res gestae exceptions, their content will assist in evaluating their reliability.” ... As noted in Smith at para. 236: There is no dispute that, at the first step, at least all the evidence which is relevant and otherwise admissible should be considered.
This includes non-hearsay relevant to the issue of the existence of the conspiracy and any hearsay evidence which may be admissible under a traditional exception or under the principled approach.
In many cases, acts and declarations of alleged co-conspirators will be admissible on one of these bases, either because on the issue of the existence of the conspiracy, they are non-hearsay or because they accompany and explain acts of the declarant, or because their reception is necessary and the statements are shown to have sufficient threshold reliability to be received under the principled approach. [ 51 ] Sulyma J held ( Koker B Alcantara at para 57 ) that: ... wiretap statements of alleged co-conspirators made in the formation or furtherance of a conspiracy are admissible to prove the conspiracy, whether because they are circumstantial evidence rather than hearsay or because, as hearsay, they meet the principled approach.
[ 52 ] The Alberta Court of Appeal put any uncertainty to rest in its subsequent decision in Wu .
The court confirmed (at paras 40-41) that all evidence adduced by the Crown is admissible at stage one of the Carter test and discussed how to implement the Carter test procedurally: In order to justify admission of acts and statements in furtherance of conspiracy as against persons not present and not otherwise proven to have adopted such acts and statements when making the final decision on guilt, the court must first determine: (1) whether the conspiracy existed ( based on all the evidence but proven beyond a reasonable doubt ); and (2) if so, whether the accused is a member of that conspiracy (based only on evidence receivable against the specific accused, and proven on a balance of probabilities).
Given this hybrid burden of proof, Carter allowed (procedurally) for provisional admission of all the evidence and that the court could then at the end of the Crown's case determine whether acts or declarations made by a co-conspirator in furtherance of the conspiracy could be used as evidence against any other alleged co-conspirator . The appellants do not dispute that the trial judge was entitled to consider all the evidence led by the Crown in determining firstly whether or not there was a conspiracy as charged proven beyond a reasonable doubt .
All the evidence was available for the first step as to the conspiracy's existence, although only the evidence directly implicating each appellant was available under the second stage of the Carter test to permit the 'in furtherance' evidence to be used against that appellant: see R. v. Sutton , [2000] 2 S.C.R. 595, 148 C.C.C. (3d) 513, 2000 SCC 50 (S.C.C.) at paras. 3-5 . If all the evidence failed to prove a conspiracy as charged, the trial judge would not need to consider the Carter test further and would acquit.
Accordingly, it would not be wrong for a trial judge to consider the whole of the evidence, including acts and declarations 'in furtherance', on that first issue . [Emphasis added.] [ 53 ] If step one of the Carter test is not proven, the trier of fact does not move on to step two, and the accused cannot be found guilty of conspiracy. If, however, the existence of the conspiracy is proven beyond a reasonable doubt at step one, at step two of the test, the trier of fact must consider whether or not the accused is probably a member of the conspiracy.
Step two: probable membership of the accused in the conspiracy [ 54 ] In deciding whether the accused is a member of the conspiracy on a balance of probabilities, the trier of fact can only consider evidence directly admissible against that accused, although the trier of fact is free to consider that evidence in context. [ 55 ] Such evidence may include out-of-court admissions made by the accused against the accused’s own interests, as such admissions are presumptively admissible as a traditional exception to hearsay ( Koker B Alcantara at para 59 ).
It also may include wiretap evidence as explained by Sulyma J in Koker B Alcantara at para 59 : At the second stage of Carter , an admission made by A in a wiretap recording of a telephone conversation between A and B may be used against A for the truth of its contents.
B’s statements in that conversation may be used in the case against A only as context, i.e. as proof the statement by B was made to A. [ 56 ] Therefore, at the second step of Carter , the accused’s acts and declarations must be viewed within their proper context and need not be divorced from the acts and declarations of the co-conspirators which can be of assistance in understanding the meaning of the accused's acts and declarations.
Step three: proof of membership beyond a reasonable doubt [ 57 ] If step two of the Carter test is not satisfied, the trier of fact does not move on to step three, and the accused cannot be found guilty of conspiracy. [ 58 ] If, on the basis of the evidence admissible at step two, the trier of fact is satisfied beyond a reasonable doubt that the accused is a member of the conspiracy, the accused must be found guilty of conspiracy and there is no need to move on to step three ( Koker B Alcantara at para 60 ). In such cases, the court need not resort to the co-conspirators' exception to the hearsay rule.
Similarly, "if there is
no relevant hearsay evidence of the acts and declarations of a co-conspirator in furtherance of the conspiracy, the accused's guilt must beproven beyond a reasonable doubt at the second stage of Carter, if at all" (Koker B Alcantara at para 60). [59] However, if step two only establishes the probable membership of the accused in the conspiracy, at step three theco-conspirators' exception to hearsay applies to permit the out-of-court acts and declarations of alleged co-conspirators to be used againstthe accused.
"[T]he acts and declarations of co-conspirators in furtherance of the conspiracy may be used to prove the accused'smembership beyond a reasonable doubt" (Koker B Alcantara at para 60). [60] Only those acts or declarations made in furtherance of the conspiracy are permissible under the co-conspirators' exception.
Asindicated in R v Maugey (2000), (ON CA), 146 CCC (3d) 99 at paras 29 and 33, 133 OAC 255: Acts and words in furtherance of the conspiracy are those which moved the conspiracy forward, not narrative discussions or descriptions,or statements made after the object of the conspiracy has been carried out, such as statements made to the police after the fact. ... where the two appellants each gave statements to police after the alleged conspiracy was concluded.
Such statements, once ruledvoluntary, are admissible against the person who made them, but are never admissible against another co-conspirator, as they are notmade in furtherance of the conspiracy, but after the conspiracy was completed. [61] A statement which is simply narrative, divorced from the operation of the common unlawful enterprise, is not made "in furtherance" of the design (Casey S Hill et al, McWilliams' Canadian Criminal Evidence, 4th ed, looseleaf (Aurora, Ont: Canada LawBook, 2003) at ch 7 at 140). “A statement is in furtherance of the common enterprise if it has the purpose of ‘advancing the objectives’of the common enterprise, and is thus distinct from mere narrative” (ch 7 at 140).
Even though a statement has a narrative aspect, it maybe a report by one conspirator to another and, therefore, be
an act in furtherance of the conspiracy (ch 7 at 142). Statements or acts takento preserve or conceal the existence of the design are made in furtherance of the objects of the common enterprise. Where a substantiveoffence is alleged to have been committed as a result of a common design, hearsay statements admissible against the accused must be "infurtherance" of the common design to be admitted. [62] Reassurances and updates given by one member to another in the context of an ongoing enterprise have been held to be "infurtherance" of the common design.
Acts done to avoid detection may also be within the objectives of the conspiracy and, therefore,evidence of these acts may be admissible where the common enterprise is established. [63] Acts and declarations made before the formation of the conspiracy or common enterprise are not admissible for the truth oftheir contents or to prove the non-declarant's role. Since these acts precede the conspiracy, there is no basis for the acts or declarations ofone person to constitute evidence against another, even though both may have become members of the conspiracy at a later date.
Theymay, however, be relevant to prove the origin, character and object of the conspiracy. Necessity and reliability [64] As noted by Bielby J (as she then was) in Steinhubl, where the co-conspirator’s exception to hearsay applies, the evidencesought to be adduced is only presumptively admissible at stage three. It remains open to the defence to challenge the necessity andreliability of the evidence (at paras 55 and 80): Even after the application of these three steps, the Court must be satisfied that the "principled approach" requirements of necessity andreliability are met.
In Starr, the Supreme Court of Canada held that evidence falling under a traditional hearsay exception must still beboth necessary and reliable in order to be admissible. ... Finally, I must proceed to examine whether these hearsay statements made in furtherance of the conspiracy have been established to beboth necessary and reliable. The co-conspirators’ exception has, as a category, been found to meet the requirements of necessity andreliability, there being a presumption that co-conspirators’ declarations which make it through the Carter three-step process meet those
requirements from Starr: see R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358 (S.C.C.); R. v. Chang (2003), (ONCA), 173 C.C.C. (3d) 397, 2003 Carswell Ont 1007 (Ont. C.A.). This presumption may be rebutted by the accused’s demonstration ofinsufficient reliability and/or necessity: see R. v. Pilarinos, 2002 BCSC 855, (2002), 2 C.R. (6th) 273 at para. 68 (B.C.S.C.). No suchdemonstration has been made in relation to any statement otherwise admissible in our case.
I therefore conclude that this hearsayevidence has been established to be both necessary and reliable. [Emphasis added.] [65] Alcantara and Knapczyk raise the question that lies at the intersection of the three-step approach to admission of evidenceunder the co-conspirator’s exception to the hearsay rule in Carter and the principled approach to the admission of hearsay evidence in Rv Starr, 2000 SCC 40, [2000] 2 SCR 144: whether evidence that has passed muster under the three-step Carter analysis must also meetthe requirements of necessity and reliability under the principled exception to the hearsay.
In R v Lam, 2005 ABQB 121, 389 AR 324, acocaine trafficking conspiracy case, Burrows J discussed this issue under the heading “When Carter Meets Starr.” [66] Alcantara and Knapczyk argue that the requirement of necessity is not met in this case because Caines, formerly a co-accused,as well as the other alleged unindicted co-conspirators (aside from the deceased Marche), were not shown to be unavailable to testify.
Insupport of this argument, they offer a number of authorities which have considered or touched on this question (R v Pelletier, 1999BCCA 678, 130 BCAC 300; R v Pilarinos, 2002 BCSC 855, 2 CR (6th) 273; R v Mapara, 2003 BCCA 131, 180 CCC (3d) 184, aff’d2005 SCC 23, [2005] 1 SCR 358; R v Chang (2003), (ON CA), 173 CCC (3d) 397 (Ont CA); Insurance Corp ofBritish Columbia v Sun, 2003 BCSC 1059, 230 DLR (4th) 470; R v Ticknovich, 2003 ABQB 854, 343 AR 243; R v Wilder, 2003BCSC 1840, aff’d 2006 BCCA 1, 204 CCC (3d) 332; R v Lindsay, (ON SC), [2005] OTC 44 (SCJ); R v Oliynyk, 2005BCSC 881, aff’d 2008 BCCA 132, 232 CCC (3d) 411; Lam; R v Abu-Sharife, 2006 BCSC 902 and 923; R v Barnes, [2007] OJ No 468(SCJ) (QL); R v Simpson, 2007 ONCA 793, 230 CCC (3d) 542, leave to appeal to SCC ref’d 230 CCC (3d) 542; R v Giles, 2007 BCSC1894; R c Elmerhebi, 2008 QCCQ 8450; R v Violette, 2008 BCSC 422; R v NY, [2008] OJ No 2228 and 2124 (SCJ) (QL); R v Niemi,[2008] OJ No 4619 (SCJ) (QL); R v MT, [2009] OJ No 977 (SCJ) (QL); R v Maguire, 2009 BCSC 864; R v Downes, [2009] OJ No6364 (SCJ) (QL); Koker B Alcantara; R v Beauchamp, [2009] OJ No 4872 (SCJ) (QL); R c Poirier, 2010 QCCQ 4709; R v Heath,2010 ONSC 3161; R v Green (201), (NL PC), 302 Nfld & PEIR 237; Steinhubl; R v Abreu-Larancuent, 2011ONSC 4384; R v JF, 2011 ONCA 220, 105 OR (3d) 232, leave to appeal to SCC granted [2011] SCCA No 291; R v Ali, 2011 BCSC1701; and R v Cater, 2012 NSPC 15, 315 NSR (2d) 46). [67] Alcantara and Knapczyk rely on three cases in particular that involved declarants’ out-of-court statements that were notadmitted because necessity was not made out: Lindsay, Simpson, and Giles. [68] In Lindsay, the Crown alleged that Lindsay and Bonner committed extortion for the benefit of, at the direction of, or inassociation with a criminal organization, the HAMC.
The Crown sought to adduce oral statements reduced to writing and wiretaptranscripts of members or affiliates of the HAMC, not only for reference by the experts on HAMC, but also for the truth of their contents,relevant to establishing whether the HAMC is a criminal organization and its main purposes and activities. The accused argued that theout-of-court statements should not be admitted as they did not meet the requirements of necessity and reliability. Feurst J considered therequirement of necessity at paras 19-24: As the Supreme Court of Canada held in R. v.
Khan, supra, the first issue is whether reception of the hearsay statement is necessary.Necessity means reasonably necessary, in other words the direct evidence of the witness is unavailable despite reasonable efforts toobtain it: R. v. F. (W.J.) (1999) (SCC), 138 C.C.C. (3d) 1 (S.C.C.). It does not mean necessary to the prosecution'scase. Hearsay evidence does not become inadmissible because corroborative evidence is available: R. v. Smith (1992) (SCC), 75 C.C.C. (3d) 257 (S.C.C.); R. v. Wilcox (2001) 2001 NSCA 45 , 152 C.C.C. (3d) 157 (N.S.C.A.).
Necessity is met where the declarant is physically unavailable to testify, for example because of death, absence from the jurisdiction,insanity, testimonial incompetence, or non-compellability: R. v. B. (K.G.), supra. The majority of the Supreme Court of Canada in R. v. B. (K.G.), supra, recognized that necessity also may be met where the declarant isphysically available to testify, but the court cannot expect to get from him/her at trial evidence of the same value as the prior statement.This can arise where the witness refuses to adopt a prior inconsistent statement.
It also applies where the witness would suffer trauma ifcalled to testify, or cannot provide a meaningful account of events: R. v. Rockey (1996) (SCC), 110 C.C.C. (3d) 481(S.C.C.); R. v. F. (W.J.), supra. Fear or disinclination, without more, do not constitute necessity: R. v. F. (W.J.), supra.
There is no presumption of necessity, and the criterion must always be considered in the circumstances of the particular case: R. v.Rockey, supra. A judge may ground a finding of necessity in evidence called by the prosecution, or it may be self-evident based on whatoccurs at trial, for example where a vulnerable witness would be traumatized by testifying: see R. v. F. (W.J.), supra. However, thecircumstances in which a witness is available to testify but not called and out-of-court statements nevertheless admitted were termed"exceptional" by Binnie J. writing for the majority in R. v.
Parrott (2001) 2001 SCC 3 , 150 C.C.C. (3d) 449 (S.C.C.) at 477. As expressed by Lamer C.J.C. on behalf of the Supreme Court of Canada in R. v. Smith, supra, the categories of necessity are notclosed. [69] The Crown in Lindsay sought to adduce statements made by Miller, a full member of HAMC at the time the statements weremade and president of a chapter. The statements were made by Miller to his girlfriend or others in conversations intercepted ontelephones or by room probes, then transcribed. The Crown did not call or attempt to call Miller, nor did it show he was physicallyunavailable to give evidence.
The Crown relied on expert testimony to the effect that co-operation by HAMC members with theauthorities will be met with sanctions, including violence and even death. [70] Feurst J noted that the Crown did not adduce evidence of efforts to have Miller testify, or of his whereabouts, whether in orout of jail. She held that on the evidence before her, she was not satisfied that hearsay was the only available means of putting theevidence before the court.
Only the statements of two deceased declarants met the criteria of necessity for the purpose contended.However, some statements were admitted for the purposes of the expert testimony. [71] As to reliability, Feurst J commented at para 49 that, unlike the situation in Mapara, Lindsay was not a case where the out-of-court statements were entirely recorded using a wiretap. [72] In Simpson, the Ontario Court of Appeal reviewed the decision of a trial judge to admit an out-of-court hearsay oral statementmade by Williams, a former co-accused and co-conspirator, to an undercover police officer.
The court held that the trial judge erredwhen she admitted Williams’ evidence through the police officer without affording Simpson the opportunity to cross-examine, since theout-of-court statements were neither necessary nor reliable. Simpson argued that the trial judge erred in relying on the co-conspirator’sexception to the hearsay rule when the principled approach warranted exclusion because necessity had not been established.
The courtheld that the Crown should have called Williams to testify; if he denied the statements, recanted or gave inconsistent evidence, theprocedure under s 9 of the Evidence Act could have been employed. [73] The court in Simpson neatly summarized the effect of the co-conspirator’s exception and the principled approach, at paras 14-24: The co-conspirators' exception to the hearsay rule allows the acts and declarations of an accused's alleged co-conspirators, done or madein furtherance of the conspiracy, to be adduced as evidence against the accused: R. v. Carter (SCC), (1982), 67 C.C.C.(2d) 568 (S.C.C.).
Following Carter, co-conspirators’ statements will be admissible against an accused person if: (
i) the trier of fact issatisfied beyond a reasonable doubt that a conspiracy existed; and (ii) if independent evidence, directly admissible against the accusedperson, establishes on a balance of probabilities that the accused was a member of the conspiracy. The basic principle regarding hearsay evidence is that it is generally excluded because it is not the best evidence, as compared to directevidence, and since it is not given under oath and generally cannot be tested by cross-examination, it may be unreliable.
However,hearsay evidence can be admitted if it falls under one of the traditional exceptions to the hearsay exclusionary rule. Hearsay evidence canalso be admitted if it is shown to be necessary and reliable. Together, the requirements of necessity and reliability make up the“principled approach” to the admission of hearsay evidence: see R. v. Khan (SCC), (1990), 59 C.C.C. (3d) 92 (S.C.C.).
Later, in Starr, the Supreme Court of Canada held that the traditional categorical exceptions to the general exclusionary rule for hearsayare to be interpreted in a manner consistent with the principled approach to determine the admissibility of hearsay evidence.
Starr also held that evidence falling within a traditional exception is presumptively admissible because the exceptions typically have an inherent component of necessity and reliability. However, when an exception fails to conform to these principles, that is, in a “rare case”, the principled approach can override the exception to exclude the evidence.
The issue of whether the direction in Starr , to re-evaluate the traditional hearsay exceptions having regard to the principled approach, applied to the rule allowing for the admissibility of co-conspirators' declarations has since been considered by this court in Chang , and by the Supreme Court of Canada in Mapara . Both courts concluded that if the hearsay dangers are present, then the evidence must conform to the principled approach. As I noted, Starr creates the basic framework for analyzing how the common law exceptions to the rule against hearsay interact with the principled approach.
This framework is summarized succinctly by the majority in Mapara at para. 15: (
i) Hearsay is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place. (ii) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach.
The exception can be modified as necessary to bring it into compliance. (iii) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case. (iv) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
And, as Starr pointed out, the party challenging the admissibility of evidence falling within a traditional exception will bear the burden of showing that the evidence should nevertheless be inadmissible. In Mapara , the Supreme Court held that the co-conspirators’ exception generally meets the requirements of the principled approach to the hearsay rule (para. 31). The Court, at para. 18, described how the necessity requirement is built-in to the co-conspirator exception: The criterion of necessity poses little difficulty.
As stated in Chang [at para. 105] , “necessity will arise from the combined effect of the non-compellability of a co-accused declarant, the undesirability of trying alleged co-conspirators separately, and the evidentiary value of contemporaneous declarations made in furtherance of an alleged conspiracy.” [Emphasis added]. The requirement of reliability is also satisfied by this exception.
Relying on this court’s decision in Chang , the Chief Justice held at paras. 24, 26: Proof that a conspiracy existed beyond a reasonable doubt and that the accused probably participated in it does not merely corroborate the statement in issue.
Rather, it attests to a common enterprise that enhances the general reliability of what was said in the course of pursuing that enterprise. … [T]he final Carter requirement, i.e., only those hearsay statements made in furtherance of the conspiracy can be considered, provides guarantees of reliability in the more immediate circumstances under which the statement is made. “In furtherance” statements “have the reliability-enhancing qualities of spontaneity and contemporaneity to the events to which they relate” ( Chang , at paras. 122-23 ).
They have res gestae-type qualities, being “the very acts by which the conspiracy is formulated or implemented and are made in the course of the commission of the offence” ( Chang , at para. 123 ). This “minimizes the motive and opportunity for contrivance” ( Chang , at para. 124 ).
Nevertheless, evidence admissible under the Carter analysis is by definition hearsay: Chang , para. 79 . Thus, as was held in para. 85 in Chang : … a statement that becomes admissible under the Carter process is hearsay and concerns about unreliability are very real. Indeed, the dangers attached to the use of hearsay that give rise to the general exclusionary rule are all present in the case of a statement admitted under the Carter process.
The statement is not made under oath, is not subject to contemporaneous cross-examination, and the trier of fact has no opportunity to observe the declarant at the time the statement was made. So while Mapara holds that, in theory, the Carter exception satisfies the principled approach, it is nevertheless important to test the application of the exception to the particular circumstances for the indicia of necessity and reliability.
In “rare cases” where necessity and/or reliability are lacking, the trial judge may exclude the hearsay statements. [ 74 ] Evidence falling within the co-conspirator’s exception to the hearsay rule is typically admissible as necessary and reliable, but in the “rare case” where the exception fails to conform to these principles, the principled approach can override the exception to exclude the evidence.
Chang and Mapara both were cases where the co-conspirators also were co-accused and, therefore, could not be made Crown witnesses by compulsion. [ 75 ] The court in Simpson commented at para 36 that: The ultimate question to determine on this appeal, therefore, is whether the evidentiary value of contemporaneous declarations outweighs the traditional strong reluctance to admit out-of-court evidence, which has not been made under oath, has not been the subject of contemporaneous cross-examination, and where the trier of fact has no opportunity to observe the declarant at the time the statement was made: see Chang , at para. 85 . [ 76 ] The court then held that the out-of-court statements were neither necessary, because Williams could have been called to testify, nor reliable, given the particular circumstances in which the statement was obtained. [ 77 ] In Giles , the Crown sought to introduce into evidence portions of intercepted private communications as being relevant to the essential elements of the criminal organization charge at issue in that case.
The communications involved a police agent who had infiltrated the East End
chapter of the HAMC during the police investigation. He adopted his own statements at trial. The issue related to the others who participated in those communications. No effort was made to secure the testimony of two of those individuals.
The court found that the statements met the reliability criteria, but at para 35 ruled that the requirement of necessity had not been met. [ 78 ] In Lam at paras 22ff, Burrows J considered whether application of the Carter approach ensures necessity and reliability, and concluded the Carter steps did not assure the necessity and reliability of the wiretap evidence offered by the Crown.
He went on to find that the necessity requirement was satisfied; that some hearsay is admissible despite the availability of the declarant and that courts have defined necessity widely to include cases where evidence of the same value cannot be obtained from the declarant. He noted, at para 39 that the out-of-court declarants were alleged co-conspirators, some recently convicted for participation in the drug trafficking business at hand.
He relied on Wilder at para 680 and 681, in which Romilly J, in a similar context, found necessity was shown: Therefore, when considering the balance that must be considered to bring the co-conspirators' exception into conformity with the principled approach, the factual context and rationale for the exception must be considered. When considering the factual context for the co-conspirators' rule it is clear that: 1) conspiracy is proven by pieces of circumstantial evidence; and 2) it is a remote possibility that a co-conspirator will confess to a court.
When viewed in this light, the co-conspirators' exception is a contextually sensitive approach to the difficulty of proving conspiracy by other means. I find that in light of all these factors, it is not necessary for the Crown to show that they have made reasonable efforts to have the declarant testify. Experience has shown time and again the remote possibility of having a co-conspirator appear in court to respond to their part of a conspiracy. Therefore, this is an appropriate circumstance where hearsay may be admitted more on the basis of expediency or convenience than on the basis of necessity . . .
[79] Burrows J found that even if the declarants were brought to court to testify, it was unlikely their evidence would approach thequality of the wiretap and that the wiretap evidence was necessary as it was by far the best evidence of the specific activity the Crownsought to prove.
He concluded at para 44 that the wiretap evidence met the requirement of reliability as it not only was the best availableevidence of what was said, it was “ ... as close to perfect as evidence can ever get of what was said,” although that alone was notsufficient since the calls were offered not simply to prove that the words were uttered but also to prove the truth of those words. [80] Burrows J held that other indicators of reliability in this context were that the declarants had little or no motive to make thingsappear as other than they were, and in the drug business formal records are not kept.
The wiretaps recordings had similar indicia ofreliability as notes kept in the ordinary course of business as the nurses’ notes held to be admissible in Ares v Venner. They weredeclarations in the course of duty, reasonably contemporaneous with the events they recorded, and made by persons having knowledgeof the matters recorded who had a high motivation to be accurate. By analogy to the nurses’ notes, he found that recorded wiretap calls ofpeople engaged i
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