Court of Queen’s Bench of Alberta

Citation: R. v. Caines, 2011 ABQB 82

Date: 20110214
Docket: 070060157Q1
Registry: Edmonton

Between:

Her Majesty the Queen

- and -

Jeffrey Mark Caines, John Reginald Alcantara and Alan Peter Knapczyk

Accused

_______________________________________________________

Delay Motion Reasons for Judgment

of the
Honourable Madam Justice S.J. Greckol
_______________________________________________________

I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 5

II. Judicial History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 6

A. Provincial Court Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 6
B. Court of Queen’s Bench Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 13

III. The Issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 30

IV. The Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 30

A. Charter Provisions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 30
B. Section 11(b) Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 31
1. Length of the delay.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 33
2. Waiver of time periods.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 33
3. Reasons for the delay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 35
 Page: 2

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

(b) Actions of the Applicants. . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 36
(c) Actions of the Crown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 37
(d) Limits on institutional resources. . . . . . . . . . . . . . . . . . . . . Page: 37
(e) Other reasons for delay. . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 38
4. Prejudice to the Accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 38
5. Balancing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 39

V. Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 39
A. Length of the Delay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 39
B. Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 39
C. Reasons for the Delay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 39
Stage 1: November 24, 2006 (charge) to October 31, 2007 (end of intake period)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 41
(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 41
(b) Decision on Stage 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 42
Stage 2: November 1, 2007 to April 6, 2008 (day before start of Koker A
preliminary inquiry). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 43
(a) Events.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 43
(b) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 43
(c) Evidence of Sherry Stasiuk.. . . . . . . . . . . . . . . . . . . . . . . . . Page: 46
(d) Decision on Stage 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 47
Stage 3: April 7, 2008 (start of preliminary inquiry) to July 14, 2008 (committal to
stand trial). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 49
(a) Events.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 49
(b) Arguments of Caines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 49
(c) Decision on Stage 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 49
Stage 4: July 15, 2008 (day after committal to stand trial) to September 5, 2008
(adjournment request). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 50
(a) Events.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 50
(b) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 50
(c) Decision on Stage 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 50
Stage 5: September 6, 2008 (day after adjournment request) to October 24, 2008
(setting of trial dates). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 51
(a) Events.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 51
(b) Facts in the present case relevant to the conflict issue. . . . Page: 51
(c) Facts relevant to the conflict issue relating to other cases in which
Mr. Chadi acted as defence counsel for unindicted co-conspirators
and an intended witness in Koker A.. . . . . . . . . . . . . . . . . . Page: 57
(d) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 60
(e) Comments on previous representation of witness and the conflict
issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 64
 Page: 3

(f) Comments on unindicted co-conspirators and the conflict issue

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 67
The Flight and John Caines Conflict. . . . . . . . . . . . . . . . . . Page: 68
The Hoskins Conflict in Koker C. . . . . . . . . . . . . . . . . . . . Page: 69
(g) Comments on co-accused conflict issue.. . . . . . . . . . . . . . . Page: 72
(h) Responsibility for raising the conflict issue.. . . . . . . . . . . . Page: 75
(i) Evidence of Carol Zelant. . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 78
(j) Decision on Stage 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 78
Stage 6: October 25, 2008 (day after trial date scheduled) to November 10, 2009
(trial to commence). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 79
(a) Events.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 79
(b) Arguments of the parties . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 80
(c) Decision on responsibility for delay. . . . . . . . . . . . . . . . . . Page: 80
Stage 7: November 11, 2009 (day after trial to commence) to September 26, 2010
(day before commencement of delay motion). . . . . . . . . . . . . . . . . Page: 82
(a) Events.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 82
(b) Arguments of the Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 84
(c) Chronology of use of put away feature of CenCIS I and II
equipment at Special I, K Division, RCMP, Edmonton. . . . Page: 84
(d) When use of the put away feature should have been disclosed
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 87
(e) The due diligence argument: the Applicants’ responsibility for late
disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 88
(f) Decision on Stage 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 91
Stage 8: September 27, 2010 (commencement of delay motion) to June 16, 2011
(anticipated end of trial).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 92
(a) Events.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 92
(b) Arguments of the Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 92
(c) Decision on Stage 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 93
D. Prejudice to the Applicants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 93
1. Mark Jeffery Caines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 93
(a) Evidence and arguments of Caines. . . . . . . . . . . . . . . . . . . Page: 93
(b) Arguments of the Crown. . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 99
(c) Decision on prejudice to Caines. . . . . . . . . . . . . . . . . . . . . Page: 99
2. John Reginald Alcantara. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 100
(a) Evidence and arguments of Alcantara.. . . . . . . . . . . . . . . Page: 100
(b) Arguments of the Crown. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 102
(c) Decision on prejudice to Alcantara. . . . . . . . . . . . . . . . . . Page: 102
3. Alan Peter Knapczyk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 104
(a) Evidence and arguments of Knapczyk. . . . . . . . . . . . . . . . Page: 104
(b) Arguments of the Crown. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 105
(c) Decision on prejudice to Knapczyk. . . . . . . . . . . . . . . . . . Page: 105
E. Balancing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 106
 Page: 4

1. The purposes of s. 11(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 106

2. The Morin factors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 107
3. Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 109
4. Balancing in this case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 111
(a) Overall period of delay. . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 111
(b) Attribution for delay.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 111
(c) Prejudice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 114
(d) Complexity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 114
(e) Seriousness of the charges. . . . . . . . . . . . . . . . . . . . . . . . . Page: 114
5. Conclusions on balancing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 116
 Page: 5

I. Introduction

[1] The three Accused, Jeffrey Mark Caines (Caines), John Reginald Alcantara (Alcantara)
and Alan Peter Knapczyk (Knapczyk), have applied for a stay of proceedings based on
unreasonable delay pursuant to ss. 7, 11(b) and 24(1) of the Charter. The Crown stresses that this
is not an application for s. 24(1) relief based on a breach of the right of disclosure. Nor is it an
application based on abuse of process.

[2] This prosecution has resulted from a joint forces police investigation involving the
Edmonton and Fort McMurray Drug Sections of the Royal Canadian Mounted Police (RCMP) as
well as the Edmonton Police Service (EPS). The investigation, referred to as Project Koker, also
engaged the Edmonton Integrated Proceeds of Crime Unit (EIPOC).

[3] The investigation commenced on or before February 7, 2005. Throughout the course of
the investigation the police used various techniques including searches of electronic databases,
physical surveillance, informants, telephone number recorder warrants, tracking device warrants,
video surveillance warrants and search warrants obtained pursuant to the Criminal Code (Code),
and the Controlled Drugs and Substances Act (CDSA).

[4] The police also obtained five authorizations to intercept private communications under
s. 186 of the Code, designated as follows:

1. WT1709 granted by Slatter J. on August 23, 2005, and valid for 60 days
up to and including October 21, 2005;

2. WT1712 consisting of two authorizations granted by Slatter J. on October

17, 2005, each valid for 60 days up to and including December 16, 2005;
and,

3. WT1713 consisting of two authorizations granted by Slatter J. on

December 14, 2005, each valid for 60 days up to and including February
13, 2006.

[5] On November 24, 2006, two separate Informations were sworn (Docket Nos.
061444279P1and 061444l47P1). Alcantara was charged in both. Caines and Knapczyk also were
charged in Information No. 061444279P1. On November 26, 2006, Alcantara and Knapczyk
were arrested in Edmonton. Caines was arrested in Fort McMurray on December 5, 2006.

[6] On January 8, 2007, Information No. 070060157P1 was sworn as a replacement for
Information No. 061444279P1. Caines, Alcantara and Knapczyk were jointly charged in this new
Information with conspiracy to traffic in cocaine contrary to s. 5(1) of the CDSA and s. 465(1)(c)
of the Code and substantive trafficking contrary to s. 5(1) of the CDSA. Caines also was charged
in a separate count with a criminal organization offence contrary to s. 467.13 of the Code.
 Page: 6

Alcantara and Knapczyk were jointly charged with a criminal organization offence contrary to s.
467.12 of the Code. Throughout the disclosure, this prosecution was referred to as “Koker A”.

[7] On December 4, 2007, Information No. 071521769P1 was sworn as a replacement for
Information No. 061444147P1. In this Information, Alcantara was jointly charged with Beau
Michael Yakimishyn, Sean David Critch, Derek Albert Ezekiel and Nicholas James Roberts with
conspiracy to traffic in cocaine contrary to s. 5(1) of the CDSA and s. 465(l)(c) of the Code. The
four accused also were charged separately with various other drug and weapons offences.
Throughout the disclosure, this prosecution was referred to as “Koker B”.

[8] The police also arrested a number of other persons at various locations who were charged
in multiple separate proceedings. Ricco King, Farhan Haider Sattar, Kamran Sattar and Melissa
Diane King were charged with various drug related offences in Information No. 061444048P1.
The preliminary inquiry in that matter, held in Calgary, has been concluded and the pre-trial
motions were scheduled to commence in the Court of Queen’s Bench on November 8, 2010.
Throughout the disclosure received by the Applicants, this prosecution was referred to as “Koker
C.”

[9] The disclosure received by the Applicants consists of over 8,317 documents totalling in
excess of 400,000 pages. This material was provided to the Defence predominately in electronic
form by way of an external hard drive and multiple DVDs. The narrative logs of the intercepted
private communications contain 51,827 sessions totalling 59,530 pages. All disclosure provided
to one counsel in the Koker prosecutions was provided to all, whether relevant to the particular
Koker prosecution that counsel was involved in or not.

[10] In a Notice of Intention under s. 189(5) of the Code dated March 6, 2008, the Crown gave
notice that it would seek to introduce 464 intercepted private communications into evidence at
trial. A disc containing the intercepted private communications and four binders containing the
transcripts in hard copy have been entered as exhibits in the trial, although as a result of late
disclosure, the admissibility of this material will be re-visited.

II. Judicial History

[11] Counsel for Alcantara prepared a summary of the judicial history of Koker “A,” which
was adopted by the Crown and largely adopted by Caines. Knapczyk adopted the judicial history
accepted by Caines. Caines and Knapczyk have provided additional information that pertains to
them.

A. Provincial Court Proceedings

November 26, 2006

 Page: 7

[12] Alcantara and Knapczyk were arrested on November 26, 2006.

December 2006

[13] Caines turned himself in to the police on December 5, 2006. He did not speak to judicial
interim release on Information No. 061444279Pl, and was detained in custody. He retained
counsel shortly after his arrest and was represented by Jamel (“Jake”) Chadi.

[14] Following a show cause hearing on December 7, 8 and 15, 2006, Alcantara was denied
judicial interim release by Day P.C.J. in relation to both R. v. Caines (Information No.
061444279PI-Koker A) and R v. Alcantara (Information No. 061444147P1-Koker B). Alcantara
was represented by Chady F. Moustarah throughout the show cause hearing.

[15] Knapczyk was released on recognizance on December 15, 2006, and was represented by
Mr. Chadi from about December 4, 2006.

January 2007

[16] Replacement Information No. 070060157P1 in relation to the present matter, Koker A,
was sworn on January 8, 2007.

[17] On January 29, 2007, that Information came before Kerby P.C.J., at which time process
was transferred from the original Information. Mr. Gill, appearing as agent for Mr. Chadi for
Caines, indicated that a Designation of Counsel had been signed by Caines but had not yet been
filed. Mr. Gill also appeared as agent for Mr. Chadi for Knapcayk. Election and plea were
reserved to February 26, 2007.

[18] Mr. Moustarah again appeared for Alcantara. He advised the Court he had received a
DVD containing initial disclosure. Alcantara’s plea was reserved to February 26, 2007.

February 26, 2007

[19] The present matter (Koker A) returned before Le Reverend P.C.J. on February 26, 2007.
The case was adjourned to April 23, 2007.

April 23, 2007

[20] Koker A returned before Spence P.C.J., at which time it was further adjourned by
agreement of counsel to May 1, 2007.
 Page: 8

May 1, 2007

[21] Both Koker A and Koker B returned before Caffaro P.C.J. on May 1, 2007. Gregory A.
Rice appeared as Crown counsel. He advised the Court that it was the Crown’s intention to
conduct consecutive preliminary inquiries, with the prosecution in Koker B proceeding first. The
following exchange took place between the Court and Mr. Rice respecting the scheduling of
dates:

MR. RICE: . . . I can advise the Court that pursuant to this we need to set some
Preliminary Inquiry dates. I’ve -- our department has canvassed with Judge
Lefever with regard to opening up a courtroom. The idea is going to be to open up
a courtroom in late September, October, and run what I would submit to be the
first Preliminary Inquiry which would be with regard to Mr. Alcantara, Mr.
Yakimishyn, and Mr. Critch, et al, Mr. Ezekiel.

THE COURT: M-hm.

MR. RICE: Then after that one is finished, Mr. Hrabcak of our office has the
carriage of the second file which is the Mr. Alcantara, Mr. Caines, and Mr.
Knapczyk file. So the idea will be to run back to back.

THE COURT: Okay, consecutively.

MR. RICE: Consecutively, and then we’ll try to fit Mr. Roberts’ matter in there as
well. He’s a stand-alone but it’s on the same wiretap affidavit. So we’re going to
try and do that, set up the dates.

[22] All counsel agreed to a further brief adjournment to May 4, 2007 for the purpose of
obtaining dates for the preliminary inquiries.

May 4, 2007

[23] Caines, Alcantara (with D. Song acting as agent for Mr. Moustarah) and Knapczyk
appeared before Wong P.C.J. on May 4, 2007, at which time they made elections for trial by
judge alone and entered not guilty pleas in both prosecutions. Gregory Rice appeared again for
the Crown on both cases and advised the court that preliminary inquiry dates had been reserved.
The preliminary inquiry in Koker B, which the Crown wished to proceed with first, was
scheduled for February 25, 2008 to April 4, 2008, with a pre-preliminary inquiry conference
scheduled for November 1, 2007. The preliminary inquiry in Koker A was scheduled for April 7,
2008 to May 22, 2008, with a pre-preliminary inquiry conference scheduled for December 4,
2007.
 Page: 9

June 1, 2007

[24] The hard drive containing the majority of disclosure was delivered to Mr. Chadi, counsel
for Caines and Knapczyk.

August 27, 2007

[25] The hard drive containing the majority of disclosure was delivered to Clayton Rice,
counsel for Alcantara.

November 13, 2007

[26] Both cases were brought forward at the request of Anderson P.C.J. for a case
management conference, the purpose of which was to ensure that issues had not arisen which
would prevent the preliminary inquiries from proceeding on the scheduled dates.

[27] Alcantara’s present counsel, Clayton Rice, confirmed that he had been retained by
Alcantara on Koker A, having become counsel of record for Alcantara in Koker B on September
27, 2007.

[28] Various issues were discussed, including the status of disclosure, witness lists and
admissions. The Court also confirmed that other pre-preliminary inquiry conferences had been
cancelled.

[29] The issue of Mr. Chadi’s conflict of interest was raised by Anderson P.C.J. as Mr. Chadi
was representing Caines; John Norman Caines, an alleged co-conspirator; Charles Flight
(“Flight”), an alleged co-conspirator; Knapczyk; Mark Andrew Hoskins (“Hoskins”), an alleged
co-conspirator; and Michael Marche (“Marche”), a main Crown witness and unindicted co-
conspirator. Neither Crown nor other Defence counsel raised an objection at the time to Mr.
Chadi representing these individuals.

November 16, 2007

[30] Caines, represented by Chadi, spoke to judicial interim release in relation to the present
matter (Information No. 070060157P1) before Day P.C.J.. The Crown opposed his bail
application.

November 22, 2007

[31] Caines and Knapczyk signed the first set of consents regarding their joint representation
by Mr. Chadi and certified they had received independent legal advice on the issue.

December 7, 2007
 Page: 10

[32] Caines’ bail hearing concluded on December 7th with Caines being granted bail.

January 25, 2008

[33] Caines’ bail order was signed after a number of changes were made, some of which were
consented to and some opposed by the Crown. Bail consisted of $61,250.00 in cash and
securities totalling $1,000,000.00

January 31, 2008

[34] Caines was released from custody after posting the required amounts.

February 22, 2008

[35] Caines’ bail order was revoked upon Crown application. Caines returned to custody,
having been on release for 21 days.

[36] Caines signed an amended Consent form regarding representation by Mr. Chadi and
Stewart F. Brownlee signed the Certificate of Independent Advice.

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

February 25,2008

[38] The preliminary inquiry in Koker B commenced before Malin P.C.J. on replacement
Information No. 071521 769P1. Prior to the preliminary inquiry, Nicholas James Roberts was
added as an accused in that Information and on February 21, 2008, a stay of proceedings was
entered respecting the accused Derek Albert Ezekiel.

March 4, 2008

[39] A further case management conference was initiated by Anderson P.C.J. to address
whether a conflict of interest existed by virtue of Mr. Chadi acting for both Caines and Knapczyk
in Koker A. The Court provided the following background to the issue for the benefit of counsel
for Alcantara, who had not been aware of the conflict which had arisen in a related proceeding
regarding John Norman Caines and Flight, who had been charged separately:

THE COURT: Okay. Here is what brought us here, as I mentioned, an issue of

conflict arose about a week and a half ago in a preliminary inquiry for a different
Mr. Caines -- I assume they are related. I do not know -- and a Mr. Flight, who are
jointly charged with a conspiracy and some other charges, I believe. That
preliminary inquiry was scheduled to commence on Monday of this week, and that
 Page: 11

commencement date has been put over a week while the issue of conflict is sorted
out. The -- and it may or may not be able to proceed. It punctuated, however, the
fact that if a conflict rears its head in actuality in proceedings, particularly at the
eleventh hour, it can cause cases to go sideways very quickly, and that is
particularly of concern where accused persons are in custody and particularly
where the accused persons in custody are not the person to whom the conflict
relates, and for that reason, I wanted to address as quickly as possible most
specifically any question of conflict that could exist in this prosecution because
Mr. Chadi acts for --

MR. CHADI: Knapczyk and Caines.

THE COURT: -- two persons in relation to this same prosecution. Now, I do not
believe they are actually jointly charged with respect to the same charges, --

MR. HRABCAK: Some of them, they are.

THE COURT: . . .Now, I am assuming that in light of the issues that have arisen
in the other matter, that the Crown has turned their mind more closely to whether
from the Crown’s perspective there is a risk --

MR. HRABCAK: Yes.

THE COURT: -- conflict, and I am sure, Mr. Chadi. You as well have mulled that
over as well. So -- and that is something that in my view really should held or
should be dealt with in the presence of the accused. So that, Mr. Rice, is the
history of how we got here. You obviously have an interest in this issue because
Mr. Alcantara would be affected obviously if matters had to be adjourned.

[40] The case management conference was adjourned to the following day for continuation so
that the three accused could be present.

March 5, 2008

[41] The case management conference in this matter resumed. Counsel for Alcantara took the
position that although the potential conflict of interest issue more directly affected Caines and
Knapczyk, “...there is always a potential effect on my client.” The following exchange then took
place between the Court and Crown counsel respecting any potential conflict of interest:

THE COURT: So maybe, Crown I will ask you first of all whether or not the
Crown -- well, what is the Crown’s position as it relates to any potential conflict
in this matter...
 Page: 12

MR. HRABCAK: ... [W]ith respect to Mr. Jeffrey Caines and Mr. Knapczyk
they’re in a slightly different situation than Mr. Flight and Mr. John Caines. As I
see a defence, any type of defence to this particular case, Mr. Jeff Caines and Mr.
Knapczyk would not have opposing interests, that they would be like mind in any
type of defence that they wish to present. So in that aspect I don’t foresee a
conflict that would arise...The waivers tend to cover off potential or at least these
two accused’s knowledge that such a situation could arise or in the future that
they’ve accepted that they wish to waive their rights in this particular situation. So
I can’t stand here and say it’s not going to happen.

THE COURT: No, I understand that.

MR. HRABCAK: But I don’t foresee it happening unless it happens in the same
fashion as what happened in Mr. Flight and Caines’ and I don’t -- I would expect
that that’s not going to happen.

[42] The Court then asked Mr. Chadi about his position regarding the risk of a conflict arising:

THE COURT: All right. So, Mr. Chadi, what is your position with respect to any
risk of conflict of interest compromising the ability of this to proceed in a timely
way?

MR. CHADI: Thank you, Your Honour. Your Honour, in the related case
unfortunately the appearance reared its ugly head and it was clarified by this
Honourable Court very clearly as to how and when it can arise. Obviously this
Court has got a great deal of experience in that particular area.

When we deal with the matters, and quite frankly I never envisioned that it could
happen even in Flight and in Caines, but it did and obviously we’re extremely
careful in how we assess this second matter, but Mr. Hrabcak relatively and
reasonably put the position before the Court.

Now again we can never predict with any great accuracy, but you have my
undertaking that every precaution in this regard will be undertaken so that this
matter can move forward.

April 3, 2008

[43] The evidence and the submissions of counsel on committal were concluded in the
preliminary inquiry before Malin P.C.J. in Koker B. The Court reserved its decision on
committal to April 16, 2008.

April 7, 2008
 Page: 13

[44] The preliminary inquiry in Koker A commenced before Philp P.C.J. on Information No.
070060l57Pl.

April 16, 2008

[45] All four accused in Koker B were committed to stand trial and the case was scheduled for
arraignment in the Court of Queen’s Bench on May 30, 2008.

[46] Counsel for Alcantara advised the Court that his client intended to apply for judicial
interim release under s. 523(2)(b) of the Code. The application was scheduled for June 13, 2008.

June 11, 2008

[47] The evidence and the submissions of counsel on committal were concluded in the
preliminary inquiry in Koker A. The Court reserved its decision on committal and the case was
adjourned to July 14, 2008.

June 13, 2008

[48] Alcantara was granted judicial interim release by Malin P.C.J. in relation to Koker B on a
cash deposit in the amount of $25,000 and security having a value of $125,000. The conditions of
release included surrender of his passport, reporting in person twice a week and a 24-hour house
arrest provision with a knock-and-respond clause. Alcantara did not enter into the recognizance
until September 9, 2008, after being granted judicial interim release on September 5th by Philp
P.C.J. in Koker A.

July 14, 2008

[49] All three accused in Koker A were committed to stand trial and the case was scheduled
for arraignment in the Court of Queen’s Bench on August 29, 2008. Counsel for Alcantara
advised the Court that his client intended to apply for judicial interim release under s. 523(2)(b)
of the Code. As mentioned above, the application was scheduled for September 5, 2008.

September 5, 2008

[50] Alcantara was granted judicial interim release by Philp P.C.J. in Koker A on a cash
deposit in the amount of $50,000. The conditions of release included a 24-hour house arrest
provision with a knock-and-respond clause, a geographical mobility limitation and a requirement
that he surrender into custody at the Edmonton Remand Centre (ERC) 96 hours before any trial
or summary disposition.

September 9, 2008
 Page: 14

[51] Alcantara entered into recognizances respecting each bail order and was released from
pre-trial custody. All outstanding proceedings up to that date in the Provincial Court were
concluded and both cases proceeded to arraignment in the Court of Queen’s Bench.

B. Court of Queen’s Bench Proceedings

May 30, 2008

[52] The case in Koker B first appeared for arraignment before Sanderman J. in the Court of
Queen’s Bench. Ms. D.J. Alford appeared for the Crown on behalf of Gregory A. Rice. Ms.
Alford advised the Court that the Crown had not filed the Indictment but she undertook to do so.
Ms. Alford requested an adjournment of the arraignment “for some three weeks” so that a trial
judge might be assigned and scheduling issues regarding pre-trial motions could be addressed.

[53] The three Defence counsel took slightly different positions. Charles B. Davison appeared
as agent for counsel for Alcantara and suggested that arraignment be adjourned to September 12,
2008 to allow further time for briefing the disclosure. Paul L. Moreau, counsel for Roberts, was
not opposed to that suggestion but requested that Sanderman J. ask the Chief Justice to appoint a
trial judge and a pre-trial conference could then be scheduled in June or July. Naeem Rauf,
counsel for Critch, expressed a concern that his client had been in custody for “close to two years
now.”

[54] The Court adjourned the arraignment to June 27, 2008, and advised counsel that during
the interim he would arrange for the appointment of a trial judge and requested that all counsel be
prepared to schedule dates at that time.

June 27, 2008

[55] Alcantara returned to the Court of Queen’s Bench for arraignment in Koker B. A trial
judge had still not been assigned. Crown counsel suggested that a bifurcated process be adopted
whereby pre-trial motions could commence with warrantless search motions. The suggestion was
to book a week in late September, three or four days in October and then continue in December.
That proposal was summarized in the following exchange between the Court and Mr. Rice for
the Crown:

THE COURT: All right. So the suggestion is let’s do that in October, the
warrantless searches, come back in December after you’ve got a ruling on that, do
your procedural wrangling, you know, to -- or get deadlines even in October for
notice at some time, come back and then decide in December how much time
you’re going to need to fight about other matters.

MR. G. RICE: That’s correct.

 Page: 15

[56] Counsel for Alcantara was opposed to a bifurcated procedure and suggested that one day,
February 2, 2009, be scheduled for all pre-trial motions. The following exchange then took place
between the Court and Crown counsel:

THE COURT: Well, if anything, and Mr. -- Mr. Danyluik is here today. I’m going
to -- I’m not throwing any arrows his way, but talk to Justice Macklin about it. It’s
a crappy system, you know, when you -- when you do little pieces like that. He’s
involved in something right now with -- well, we have two Rices here, the two
Tchirs and -- and Mr. Danyluik and I think Mr. Sprake and it’s not working very,
very well, you know.

...

The matter that Justice Macklin is -- is running right now, it’s just been a horror
show for the scheduling of the Court because out -- the Court schedule comes out
in half year segments and that’s where I’m more inclined to go along with Mr.
Rice’s suggestion about doing it in February, but, you know, I’m -- don’t want to
impose my will upon you, but I’m just trying to do something that’s efficient for
the Court and efficient for all of you so that if you know it’s going to go in
February, you’re -- you’re set in February.

MR. G. RICE: Well sir, I’ll -- I’ll go with your ruling. My idea was that would be
the most expeditious way to deal with it, but if--

THE COURT: Yeah, but, well, only -- only if-- only if the warrantless searches
don’t go in and the -- and the case collapses, then that’s fine, but that’s not going
to happen here. You know, those types of trials where you decide one matter
that’s only going to take a week is fine, if that’s going to resolve the entire trial.
That’s not going to resolve this entire trial, so why do some here, some here, some
here? Let’s just start it in February.

[57] The pre-trial motions were set for February 2, 2009 to May 29, 2009 and the case was
scheduled to return before Sanderman J. on September 5, 2008 for a case management
conference.

August 28 and 29, 2008

[58] The Crown filed the Indictment in Koker A. The first appearance for arraignment came
before Bielby J. on August 29, 2008. The status of the two cases was summarized by Gregory A.
Rice for the Crown in the following exchange with the Court and Kevin P. Gubbins, who
appeared as agent for counsel for Alcantara:
 Page: 16

MR. RICE: My Lady, there’s been discussion between Mr. Chadi and Mr. Rice
with respect to this date. Trying to get a hold of Mr. Hrabcak with respect to
setting up a proper date. There is also another file related to this, a different file
with some of the same accused, and there’s been issues with respect to some pre-
trial motions that are going out, so they are trying to have these suggestions, so I
am simply asking it go to the next arraignment date.

MR. GUBBINS: Same instructions with respect to Mr. Alcantara.

THE COURT: Well, these charges are fairly dated and Mr. Cairns (sic), at least, is
going to -- remains in custody, with no immediate plans to bail application, so I
am a bit concerned with setting it over.

MR. RICE: When I spoke to Mr. Hrabcak who is really in charge of this particular
application, this is a project called Koker A, and I can tell that you the pre-trial
motions for Koker B, which is my case, are set from February to May or June of
2009. So it is a bit of a scheduling issue. I can tell you that the preliminary inquiry
on this matter, Mr. Hrabcak’s, so Koker A, was completed just at the end of
spring just before summer, so Mr. Hrabcak told me that he didn’t expect that
defence counsel would be prepared to set dates today. He didn’t have any
difficulty with that and that -- but to bring his calendar just in case.

So those were basically the comments of Mr. Hrabcak. So what I can take from
that is he doesn’t have any difficulty with this, and I think it probably would be
prudent. It is becoming a bit of a scheduling problem, so it probably would be
prudent to put it over to the next arraignment date.

...

MR. GUBBINS: The accused are involved -- some of them are involved in Koker
A and Koker B, so they can’t be in at the same time.

MR. RICE: So it is a bit of a -- a bit of a conundrum.

[59] The Court adjourned the arraignment for one week and requested that counsel contact the
trial co-ordinator to provide their available dates for a long trial so that information would be
available to the Court on the return date. Mr. Rice for the Crown further advised the Court that he
was hopeful that Mr. Hrabcak would be available on the next date.

September 5, 2008

[60] Alcantara returned before Sanderman J. for a case management conference in Koker B.
The trial date of February 2, 2009 was confirmed and December 12, 2008 was set as the deadline
 Page: 17

for filing pre-trial motions. The case was scheduled to return to be spoken to on November 28,
2008 before Sulyma J., who had been assigned as the trial judge.

[61] Alcantara also appeared on the arraignment list in Koker A. Ms. M. Karout appeared as
agent for Mr. Chadi and advised the Court that Mr. Chadi was requesting an adjournment for
four weeks. The following exchange took place when the Court inquired whether Mr. Chadi was
in a conflict of interest position:

THE COURT: Yes. Appeared before Justice Bielby on the 29th, and she
suggested you get trial dates, and I see that, is Mr. Chadi acting for two people? Is
there a conflict?

MS. KAROUT: I did address that with Mr. Chadi this morning, sir. His
instructions to me on behalf of both Mr. Caines and Mr. Knapczyk was to ask that
this matter go over for a period of four weeks.

I believe there was some discussions to be taken between himself and

Mr. Hrabcak eventually resolving the Caines matter and should that not be
resolved then, of course, Mr. Chadi would have to get off the record for one of the
two, I believe, if not both, but that was his intention, was to see if we could
resolve Mr. Caines’ matters and Mr. Knapczyk would eventually -- would go to
trial if that was to be done. So he is asking for a month to facilitate that with
Mr. Hrabcak.

[62] Counsel for Alcantara made the following submissions concerning the potential conflict
issue:

MR. C. RICE: I am not too concerned about a brief or three-week window;

however I do have a concern arising from something else that my friend
mentioned this morning and that’s a potential conflict.

THE COURT: I see a real conflict here. I see a real conflict. I don’t know what
Mr. Hrabcak’s feelings are, I don’t know the case, but it is difficult not to see one
arising.

MR. HRABCAK: Yes. It--that issue had come up during the prelim and had been
discussed and had been resolved for the purposes of prelim.

THE COURT: Okay.

MR. C. RICE: I don’t know what -- quite frankly, sir, I see two conflicts that Mr.
Chadi has, and I don’t know which one my friend is referring to. Is she referring
 Page: 18

to a conflict between Mr. Caines and Mr. Knapczyk or is she referring to a

conflict that Mr. Chadi has because he was counsel for a major Crown witness?

THE COURT: These are things that --

MR. C. RICE: Which one?

THE COURT: I’d say two.

MR. C. RICE: That’s what I said, sir.

THE COURT: That’s what I say too. So I think --

MR. C. RICE: And my concern is that if that issue now arises at arraignment,
after a preliminary was conducted by Mr. Chadi in these circumstances, this case
is about to go south. It will take new counsel months to prepare this, sir. I want
you to be aware that this is a very, very big file.

THE COURT: Oh, I am well aware, Mr. Rice.

[63] Counsel for Alcantara advised the Court that he had had discussions with Crown counsel
and, “...we’re on the verge of scheduling dates.” It was suggested that Mr. Chadi be personally
present on the next arraignment date to address the conflict of interest issues. The Court agreed
and adjourned the arraignment to September 26, 2008.

September 15, 2008

[64] The third prosecution in R. v. King (Koker C) proceeded to preliminary inquiry before
Veldhuis P.C.J. in Calgary. The proceedings commenced with Mr. Chadi, counsel for Hoskins,
advising the Court that he was in an “untenable position” as a result of a conflict of interest and
could not continue to act for Hoskins. The conflict issues were addressed by John D. James,
counsel for King, who advised the Court that Mr. Chadi previously was counsel for Marche and
Debbie Weiss, who were Crown witnesses, and as well Mr. Chadi was counsel for Caines, who
was an unindicted co-conspirator. The conflict issues were further summarized for the Court by
Simon Lord, Q.C., counsel for Farhan Sattar, as follows:

MR. LORD: Mr. Chadi was former counsel for Marche. Marche is the principal
civilian accomplice informant witness, is to be that witness on behalf of the
Crown.

...
 Page: 19

Mr. Chadi is deeply conflicted as to Mr. Marche because of his prior acting for
Mr. Marche, and Mr. Marche is going to give evidence, I anticipate, against Mr.
Hoskins and Mr. Sattar at this proceeding.

In addition to Mr. Chadi being conflicted by his representation of Caines, and

although Caines may belong in one side of this alleged conspiracy or another side,
the fact is that Caines is the alleged intended recipient of all the drugs at issue in
this proceeding. So the second limb of major conflict with Mr. Chadi is his
representation which continues of Mr. Caines.

The third limb, in my respectful submission, of conflict with Mr. Chadi is -- is the
conflict which arises with Corporal Anderson.

...

Mr. Chadi, unhappily, is conflicted directly with Mr. Anderson because one of
Mr. Anderson’s thrusts - but I have no doubt it was completely unwarranted - but
nevertheless a thrust by Anderson in interview with Marche, was a suggestion put
to Marche that the habitual retainer which the men in this conspiracy had of Chadi
went beyond retainer of counsel and extended to a retainer to launder the proceeds
of the conspiracy.

And that, in other words, puts Mr. Chadi in the horrible position of having to
cross-examine the witness who actually has told the Crown and accomplice
witness that he believes Mr. Chadi is guilty of a crime. There is no evidence
whatever in support of this, but nevertheless, in my respectful position, Mr.
Chadi’s position is utterly intolerable and the Court should move to exclude him.

[65] The Court granted Mr. Chadi’s application to withdraw as counsel in the Koker C matter.
The preliminary inquiry was adjourned to September 17, 2010 to give Hoskins an opportunity to
consult with new counsel.

September 26, 2008

[66] Alcantara appeared before Clackson J. for arraignment and the scheduling of a trial date
in Koker A. Mr. Chadi appeared for Caines and Knapczyk and advised the Court that he was
making an application to be removed as counsel of record:

MR. CHADI: Thank you, My Lord. I was previous counsel -- I’m counsel of
record for Mr. Caines and Mr. Knapczyk. That is now changing this morning. I’m
applying to get off the record with respect to both of these individuals. I
conducted the preliminary inquiry. Mr. Hrabcak and I tried at great lengths to have
this matter resolved up to and including yesterday. Unfortunately, the resolution
 Page: 20

fell apart. I cannot continue to act, and -- and as I trust my friend is of the same
position. I have consulted with Mr. Caines. I understand that he’s speaking with
Mr. Moreau in that respect. Mr. Moreau is familiar with -- and as a result, can
come up to speed relatively quickly. And I understand that Mr. Juneja had been
consulted by Mr. Knapczyk. So those are my representations before the court.

[67] The Court granted Mr. Chadi’s application to withdraw as counsel and then made the
following inquiry of Mr. Juneja, who was present:

THE COURT: ... Mr. Juneja, what kind of shape are you in before we can set a
trial date here?

MR. JUNEJA: I’m not prepared to go on the record for Mr. Knapczyk at this
point. I have spoken to Mr. Knapczyk in detail, and there is an extensive amount
of disclosure to still go through. Sir, I’m asking for the court’s indulgence to put
this matter over for a period of one month to be brought up to speed and to have
further communications with Mr. Knapczyk about my retainer.

[68] The following exchange then took place between the Court and counsel for Alcantara,
who was opposed to a further adjournment:

THE COURT: Mr. Rice.

...

MR. RICE: I have some submissions to make to the court because the change of
counsel and withdrawal of counsel at this late date is going to squarely put in issue
my client’s rights to trial within a reasonable time. We are in a position today to
schedule this matter. Obviously that cannot be done due to new counsel coming
on board...So I’m -- I’m in a position where I’m not agreeing with having it
adjourned today, because we are certainly ready to proceed and set dates.

THE COURT: Okay. In a nutshell, then, you may make an application at some
point in the future based on 11(b) of the Charter is what I hear you saying, and
you don’t want to foreclose that opportunity by agreeing to this adjournment. I’ve
got that. It’s on the record.

MR. RICE: Yes. I don’t want anything to be interpreted as any kind of waiver.

THE COURT: I understand. Thank you, Mr. Rice.

[69] The Court granted Mr. Juneja’s application and the arraignment was further adjourned to
October 24, 2008.
 Page: 21

October 24, 2008

[70] Koker A returned before Clackson J. for the fixing of dates for pre-trial motions and trial.
Gregory C. Lazin appeared as counsel for Caines. Charles B. Davison appeared as agent for
counsel for Alcantara. Mr. Juneja was not prepared to go on the record as counsel for Knapczyk
and sought a further adjournment as he had not been retained and had not received the disclosure
from Mr. Chadi. Mr. Lazin and Mr. Davison then advised the Court as follows:

THE COURT: Okay.

MR. LAZIN: Sir, it was my understanding and expectation that we were going to
be setting pre-trial dates today. I understand that the dates would have been
suitable for Mr. Juneja. We were tentatively looking at setting four months of pre-
trial motions commencing November 2, 2009, with potential trial dates starting
April 5th, 2010. We’re certainly not -- my client’s in custody. It’s certainly a
matter where we’re not prepared to waive any 11(b) potential rights that he may
have.

MR. DAVISON: For Mr. Rice, that’s the same in relation to Mr. Alcantara.

[71] The Court agreed to assign tentative dates for the pre-trial motions and the trial. The
pre-trial motions were scheduled for November 2, 2009 to March 5, 2010. The trial was
scheduled for April 6, 2010 to June 30, 2010. The case was then adjourned to November 21,
2008, for confirmation of those dates.

November 21, 2008

[72] Koker A returned before Hillier J. for Mr. Juneja to advise whether he was retained by
Knapczyk and to confirm the dates for pre-trial motions and trial. Mr. Juneja did not appear as a
result of an oversight and the case was further adjourned to November 28, 2008.

November 28, 2008

[73] Mr. Juneja advised Clackson J. that he had been retained by Knapczyk with respect to
Koker A and a designation of counsel had been filed.

[74] Gregory A. Rice appeared again as Crown counsel in the place of Mr. Hrabcak and
sought an adjustment of the assigned dates for the pre-trial motions and the trial as a result of
police unavailability due to the Winter Olympic Games in Vancouver, B.C.

[75] Mr. Lazin again advised the Court that he was not acquiescing in any additional delay
caused by the unavailability of police witnesses due to the Olympics. The assigned dates were
 Page: 22

adjusted by the Court to November 2, 2009 to March 31, 2010 for pre-trial motions and April 20,
2010 to June 30, 2010 for trial.

[76] A pre-trial conference was scheduled for January 9, 2009.

November 28, 2008 to January 29, 2009

[77] This time period was taken up with pre-trial conferences in both cases.

January 29, 2009

[78] During a pre-trial conference before Sulyma J., the commencement date for the pre-trial
motions in Koker B was changed to February 9, 2009. However, prior to that date, the
co-accused Yakimishyn reached a resolution of all outstanding charges.

February 9, 2009

[79] The trial involving the three remaining accused in Koker B commenced with pre-trial
motions and continued to its conclusion on June 9, 2009, when Sulyma J. reserved judgment.
The trial was then adjourned for the Court to render verdicts.

March 2, 2009

[80] Yakimishyn proceeded separately before Hillier J. and pleaded guilty to trafficking in
cocaine pursuant to s. 5(1) of the CDSA.

March 3, 2009

[81] Alcantara was arrested on breach of recognizance charges.

March 13, 2009

[82] Yakimishyn was sentenced to a term of imprisonment of 10.5 years, less 32 months credit
for pre-trial custody, for a net sentence of seven years and 10 months (R. v. Yakimishyn, 2009
ABQB 162, 470 A.R. 140).

March 23, 2009

[83] Alcantara’s bail on Koker A was revoked by Philip P.C.J..

March 25, 2009

[84] On March 25, 2009, Alcantara’s judicial interim release application was denied.
 Page: 23

May 29, 2009

[85] Koker A came before Sanderman J. to pick a jury selection date. Mr. Lazin advised the
Court that a trial judge had been assigned and efforts were being made to schedule a pre-trial
conference. The case was adjourned to June 19, 2009, in anticipation that the election for mode
of trial would be clarified before that date.

June 19, 2009

[86] Koker A returned before Ross J. and was further adjourned to September 11, 2009, as
counsel had not been able to arrange the pre-trial conference with the assigned trial judge. It was
also expected that resolution of the outstanding issue regarding the election for mode of trial
could wait until that date.

September 10, 2009

[87] Alcantara’s application under ss. 515(10) and 525 of the Criminal Code was denied.

September 11, 2009

[88] Koker A returned before Sanderman J., at which time a pre-trial conference was
scheduled for October 14, 2009 before this Court. The question of whether the case would
proceed as a judge and jury election was adjourned to December 18, 2009, with the suggestion
that the issue could be addressed before this Court. The Crown also requested that the trial date
be adjusted again and it was moved up to April 6, 2010 from April 20, 2010, with the consent of
the Defence.

September 14, 2009

[89] Caines, without his counsel of record Gregory C. Lazin, appeared before Gill J. in regard
to Koker A and entered guilty pleas to two counts in the Indictment. Mr. Chadi, who already had
withdrawn from the file due to a conflict, appeared with Caines. The Crown did not object to his
appearance.

September 15, 2009

[90] Koker B was brought forward at the request of Sulyma J. to render Reasons for Judgment
(R. v. Alcantara, 2009 ABQB 524, 24 Alta. L.R. (5th) 248). All three accused were convicted
and the case was adjourned to September 18, 2009 to schedule a date for the sentence hearing.

September 16, 2009

 Page: 24

[91] Caines appeared before Gill J. in regard to Koker A. The Crown tendered exhibits.
Mr. Juneja, counsel for Knapczyk, attended as agent for Mr. Chadi.

September 18, 2009

[92] Koker B came before Clackson J. and the period December 2 to 4, 2009 was booked for
the sentence hearing.

[93] In Koker A, Mr. Chadi appeared before Gill J. and asked to withdraw as counsel. Mr.
Lazin confirmed that he would act for Mr. Caines.

September 24, October 2 and October 9, 2009

[94] In Koker A, Caines’ new counsel, Mr. Lazin, appeared before Gill J. with respect to
issues that had arisen since September 14, 2009.

October 14, 2009

[95] Alcantara and Caines first appeared before this Court in Koker A for the purposes of a
pre-trial conference. I directed that notices of motion regarding pre-trial applications be filed by
October 23, 2009, and books of authorities be filed by October 30, 2009. Following a discussion
of various scheduling and other logistical matters, the case was adjourned by agreement of all
counsel for the commencement of pre-trial motions on November 9, 2009, at which time it was
adjourned to November 10, 2009.

November 9, 2009

[96] The proceedings in relation to Caines and Koker A resumed before Gill J. The Court was
advised that issues had arisen with respect to a document that had been tendered to the Court on
September 14, 2009, when Mr. Lazin had not been present.

November 10, 2009

[97] Koker A resumed before this Court.

[98] Mr. Lazin advised the Court that Caines had appeared before Gill J. on September 14th
and had entered guilty pleas to two counts in the Indictment. Crown counsel confirmed that
Caines had been severed from the case and the trial of Alcantara and Knapczyk would continue.

[99] The matter in relation to Caines was scheduled to continue before Gill J. on November
12, 2009. Caines’ counsel, Mr. Lazin, was excused from further attendance before this Court.
 Page: 25

[100] Counsel for Alcantara and Knapczyk advised the Court that in the absence of their
co-accused Caines advancing an application under s. 8 of the Charter, as he had been severed
from the case, they were abandoning their s. 7 Charter applications. The following exchange
took place when counsel for Alcantara suggested that the trial date be moved up:

MR. RICE: Now, with respect to Mr. Alcantara, My Lady, it’s obvious that we
have a considerable period of time here that has now been freed up. If the court
was disposed to accelerating the trial date, that is moving it up to an earlier date
other than the one that has been scheduled in April and take advantage of this
available time I can certainly be available to do that.

THE COURT: Why wouldn’t we do that? It didn’t occur to me that we might be

able to do that but why wouldn’t we do that?

MR. HRABCAK: There is reasons -- this is primarily an RCMP file. It is an

RCMP file. The Olympics take place February and Special Olympics in March
and pretty much the majority of available RCMP officers in Alberta and in BC are
consumed through the security with respect to the Olympics as a result there is an
attempt not to schedule RCMP files during that time period.

Further, I have a matter at the end of March that is a file up in Fort McMurray that
I am needing to deal with. So I am hesitant to actually bring the matter forward.

[101] After some initial resistence Crown counsel agreed to look into the availability of police
witnesses for an earlier trial date and it was agreed that the proceedings would be adjourned to
November 18, 2009 for Crown counsel to report back to the Court. Counsel for Alcantara then
advised the Court that he had received instructions from Alcantara to offer a plea of guilty to
Count #1 in resolution of all charges in the Indictment which triggered the following exchange:

MR. RICE: Count 1 in the Indictment before you is a count alleging a conspiracy
between the dates of July 1st, 2005 and March 31st, 2006 contrary to Section
465(l)(c) of the Criminal Code, and I can advise you that in respect of that count I
have received instructions from Mr. Alcantara to offer a plea of guilty to the court
in resolution of all matters contained in this Indictment.

MR. HRABCAK: I’m taken by surprise I must admit. I’m going to need time to --
I’m not even certain of my -- what my friend is proposing to be honest.

THE COURT: I’m certain of what he is proposing. He is proposing a guilty plea

to Count 1 and all the other counts be vacated by the Crown.

MR. HRABCAK: That’s -- if that is the case that’s something for him to discuss
with myself. I mean if he wants to plead guilty, put on the record and then
 Page: 26

continue on with the trial on the other counts that’s something that the Court can
entertain but if my friend is saying he wishes to plead guilty to Count 1 on the
condition that the Crown withdraw the remaining counts that’s something that he
and I can discuss next week.

THE COURT: I’m sure. He wanted to put that on the record, that’s fine with me,
so I will leave you to discuss it.

MR. HRABCAK: Thank you.

November 12, 2009

[102] The Koker A proceedings before Gill J. continued with argument as to an agreed
statement of facts without the need to call evidence.

November 16, 2009

[103] In the Koker A proceedings before him, Gill J. dismissed the Defence application to
withdraw admissions without evidence, but allowed a Defence application with evidence.

November 18, 2009

[104] The proceedings in Koker A continued before this Court with Crown counsel requesting
an adjournment for another week as he needed more time to determine whether witnesses could
be available to commence the trial on December 7, 2009. Following a discussion about
scheduling issues and the unavailability of RCMP witnesses due to the Winter Olympics, the
case was adjourned to November 30, 2009 due to the unavailability of the Court. Counsel for
Alcantara asked whether Crown counsel had a response to the offer which Alcantara had made
on November 10, 2009 to plead guilty to the conspiracy count on the condition that the remaining
counts be withdrawn. Mr. Hrabcak replied that the Crown would not accept that plea offer at that
time , “...although I am still considering it.” He advised that he would have an answer by the
following Tuesday.

November 30, 2009

[105] Koker A resumed before this Court. Crown counsel advised the Court that he could begin
calling evidence in the trial on December 10, 2009, with a proposed continuation date of January
18, 2010. He then summarized the witness availability issues as follows:

MR. HRABCAK: After that I cannot give any assurance at all that I would have
witnesses in February or March given the Olympics. I will still attempt to do so
based upon the dates that we’ve discussed in court, that being the first two weeks
of February, and then I believe all of March is available; however, I’m not
 Page: 27

available at the last week of March, so the first three weeks of March I would
consider looking to get some witnesses, although I cannot guarantee that. So we
may have an absence of evidence in February and March and then recommence in
April.

[106] Defence counsel agreed that it was preferable to commence the trial on December 10,
2009, and the proceedings were then adjourned to the accelerated trial dates of December 10-16,
2009 and January 20-29, 2010.

December 2, 2009

[107] The sentence hearing in Koker B concluded before Sulyma J. The matter was adjourned
to December 4, 2009 for the Court to render its decision.

December 4, 2009

[108] Sulyma J. sentenced all three accused in Koker B. Alcantara was sentenced to a global
term of 14 years imprisonment less credit for time served in pre-trial custody of five years and
two months for a net sentence of eight years and 10 months. All outstanding matters in that
prosecution were then concluded. The remaining chronology of the judicial history deals solely
with the case before this Court in Koker A.

December 10, 2009

[109] The trial in the present matter commenced with Alcantara filing a Notice of Intention to
Re-Elect. He was then arraigned, formally re-elected to be tried by judge alone and entered a
guilty plea to Count 1 (conspiracy) in the Indictment. Alcantara maintained his pleas of not guilty
to trafficking in cocaine and the criminal organization count. Following the admission of facts
establishing the elements of the offence of conspiracy, the Court accepted Alcantara’s guilty plea
and entered a conviction. Crown counsel advised the Court that he intended to continue with the
trial against both accused and proceeded with an opening address and the calling of evidence.

December 17, 2009

[110] The trial continued until December 17, 2009, when it was adjourned to January 20, 2010
for further continuation.

January 13, 2010

[111] On January 13, 2010, Crown counsel advised the Defence about new disclosure regarding
implementation of the live monitoring requirement in certain of the wiretap authorizations (the
put away issue).
 Page: 28

January 20, 2010

[112] The trial resumed with Defence counsel making an application for an adjournment as a
result of the new disclosure which had been received from the Crown. Counsel for Alcantara
advised the Court as follows:

MR. RICE: Last week, on January the 13th, or at least by way of a letter dated
January 13th, 2010, from Mr. Hrabcak, on behalf of the Crown, we were made
aware of an issue that the Crown has become aware of regarding the
implementation of the wiretap authorizations in this case. It pertains to the police
interpretation and practice with respect to the implementation of what we call a
live monitoring requirement in the wiretap authorizations, and we have been
advised that it potentially may affect 71 of the evidentiary intercepted private
communications that form the part of the foundation of the prosecution’s case. We
have been provided to this point with electronic disclosure of session reports
prepared by the RCMP, my understanding, at the request of the Crown. And I
have only had the opportunity of briefly reviewing the various reports contained in
the electronic disclosure, which, certainly, in total, exceed a couple of thousand
pages of material. I understand, in speaking with Mr. Hrabcak, that the Crown has
requested further material related to this issue, which they’ve not yet received but
anticipate receiving, so we are expecting further disclosure on this point.

...

Given this development, and given the amount of material that we now have to
assess by way of this new information, I expect that we would not be in a position
to proceed further until at least April.

[113] The adjournment application triggered the following exchange between the Court and
Crown counsel, who conceded that the Defence would need some time to review its position:

THE COURT: But what about pertaining to the guilty plea on the first count? I
mean, isn’t it conceivable that some of this -- these issues around certain
intercepts might be related to --

MR. HRABCAK: Yeah. Well, certain --

THE COURT: -- the guilty plea that’s been entered, and so consequently, it seems
to me that Mr. Rice might want to review his position with respect to everything
at this point.
 Page: 29

MR. HRABCAK: Oh, and I don’t--I don’t take exception with that. Yes, I’d
expect that Mr. Rice would be starting, back from the start to determine whether
or not any of the steps that were taken he wishes to step back from.

THE COURT: Right.

MR. HRABCAK: That’s a determination that he will have to make, and he will
need time to make that. I’m not suggesting that this is something that can be
determined overnight, and I’m not taking any exception that Mr. Rice needs some
time to deal with that.

[114] The Defence agreed to proceed with the evidence of one additional Crown witness
without prejudice to any application which might be made arising out of the new disclosure. The
trial was then adjourned to January 25, 2010, on which date it was further adjourned to April 6,
2010.

[115] Immediately after the application for an adjournment was granted, Crown counsel and
counsel for Caines attended before Gill J. to adjourn Caines’ matter in Koker A.

February 16, 2010

[116] Proceedings in Koker A in front of Gill J. were adjourned so that Caines could evaluate
the consequences to him of the late disclosure.

April 6, 2010

[117] The proceedings resumed before this Court with Mr. Lazin advising that Caines would be
bringing an application to vacate his guilty plea before Gill J. and then would be bringing an
application for joinder before this Court.

April 7, 2010

[118] Gill J. declared a mistrial in the Koker A proceedings before him and struck Caines’
guilty pleas.

April 12, 2010

[119] The Crown consented to the joinder of Caines in the present proceedings and the case
reverted to the previous style of cause as R. v. Caines, Alcantara and Knapczyk.

[120] Also on that date, Alcantara filed a Charter application to vacate his guilty plea to Count
1 (conspiracy) pursuant to ss. 7, 11(d) and 24(1) of the Charter (Motion #2); an application for a
judicial stay of proceedings under ss. 7, 11(b), 11(d) and 24(1) of the Charter based on delay
 Page: 30

(Motion #3) and an application for the exclusion of evidence pursuant to ss. 7, 8, 11(d) and 24(1)
and (2) of the Charter based on unlawful search and seizure (Motion #5). A Garofoli application
(Motion #4) was filed October 8, 2010.

[121] Caines had requested further disclosure from the Crown at some point after March 10,
2010, which had not been received by this date. Counsel for Caines sought a two week
adjournment pending receipt of the further disclosure. An adjournment to April 20, 2010 was
granted.

April 20, 2010

[122] The Defence proposed a schedule whereby its disclosure motions would begin on June 1,
2010 and continue for seven to ten days. Over the summer, they would await the disclosure and
further prepare.

May 18, 2010

[123] Alcantara and Caines filed a joint notice of motion seeking an order for production
pursuant to ss. 7 and 24(1) of the Charter (Motion #1).

May 28, 2010

[124] Caines filed a Charter application alleging breaches of ss. 7, 8, 11(a) and 11(b), and
seeking a judicial stay of proceedings under s. 24(1) (Motion #3).

June 1, 2010-June 14, 2010

[125] The disclosure motion proceeded on various dates from June 1, 2010 to June 14, 2010, at
the conclusion of which the Court set deadlines for the Crown to comply with the orders granted.
The deadline for disclosure of the final outstanding information was set for August 19, 2010.

June 24, 2010 and June 28, 2010

[126] The case continued with two case management conferences, at the conclusion of which
the Court fixed a “Revised Proposed Pre-Trial Motions and Trial Schedule.” The pre-trial
motions were booked to commence on September 1, 2010 and conclude on March 31, 2011, with
the trial proceeding April 11, 2011 to June 16, 2011.

August 20, 2010

[127] The disclosure motion resumed, at which time Crown counsel provided an update
regarding the status of the Crown’s compliance with the order for production. The Defence
indicated it would need time to review the disclosure provided. The proceedings then adjourned
 Page: 31

to September 1, 2010, which was the date scheduled for the commencement of the application to
vacate Alcantara’s guilty plea.

September 1, 2010

[128] Pre-trial motions commenced.

September 24, 2010

[129] Knapczyk filed a Charter application alleging a breach of s. 11(b) and seeking a judicial
stay of proceedings under s. 24(1) (Motion #3).

[130] Alcantara was allowed to vacate his guilty plea to Count 1 in the Indictment (R. v.
Alcantara, 2010 ABQB 616). Also, on that date, the Court confirmed that Mr. Juneja could
continue in his representation of Mr. Knapczyk for the duration of the delay motion (R. v.
Caines, 2010 ABQB 612).

October 8, 2010

[131] The Court issued a decision (R. v. Caines, 2010 ABQB 646) pertaining to a voir dire
hearing as to the relevance and admissibility of session history reports relating to wiretap
interceptions in a separate prosecution.

September-December 16, 2010

[132] The delay motion proceeded.

III. The Issue

[133] The issue is whether the delay in the prosecution and trial of the charges against Caines,
Alcantara and Knapczyk is unreasonable and contrary to s. 11(b) of the Charter.

IV. The Law

A. Charter Provisions

[134] The Charter provides that:

7. Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of fundamental
justice.
 Page: 32

...

11. Any person charged with an offence has the right

...

(b) to be tried within a reasonable time;

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.

B. Section 11(b) Discussion

[135] In R. v. Morin, [1992] 1 S.C.R. 771 at paras. 26-31, Sopinka J. set out the purposes of
s. 11(b) of the Charter and the approach to be used in a s. 11(b) analysis:

The primary purpose of s. 11(b) is the protection of the individual rights of

accused. A secondary interest of society as a whole has, however, been recognized
by this Court. I will address each of these interests and their interaction.

The individual rights which the section seeks to protect are: (1) the right to
security of the person, (2) the right to liberty, and (3) the right to a fair trial.

The right to security of the person is protected in s. 11(b) by seeking to minimize

the anxiety, concern and stigma of exposure to criminal proceedings. The right to
liberty is protected by seeking to minimize exposure to the restrictions on liberty
which result from pre-trial incarceration and restrictive bail conditions. The right
to a fair trial is protected by attempting to ensure that proceedings take place while
evidence is available and fresh.

The secondary societal interest is most obvious when it parallels that of the
accused. Society as a whole has an interest in seeing that the least fortunate of its
citizens who are accused of crimes are treated humanely and fairly. In this respect
trials held promptly enjoy the confidence of the public. As observed by Martin
J.A. in R. v. Beason (1983), 36 C.R. (3d) 73 (Ont. C.A.): "Trials held within a
reasonable time have an intrinsic value. The constitutional guarantee enures to the
benefit of society as a whole and, indeed, to the ultimate benefit of the accused..."
(p. 96). In some cases, however, the accused has no interest in an early trial and
society's interest will not parallel that of the accused.

There is, as well, a societal interest that is by its very nature adverse to the
interests of the accused. In Conway, a majority of this Court recognized that the
 Page: 33

interests of the accused must be balanced by the interests of society in law

enforcement. This theme was picked up in Askov in the reasons of Cory J. who
referred to "a collective interest in ensuring that those who transgress the law are
brought to trial and dealt with according to the law" (pp. 1219-20). As the
seriousness of the offence increases so does the societal demand that the accused
be brought to trial. The role of this interest is most evident and its influence most
apparent when it is sought to absolve persons accused of serious crimes simply to
clean up the docket.

The general approach to a determination as to whether the right has been denied is
not by the application of a mathematical or administrative formula but rather by a
judicial determination balancing the interests which the section is designed to
protect against factors which either inevitably lead to delay or are otherwise the
cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that some delay is
inevitable. The question is, at what point does the delay become unreasonable?"
(p. 1131). While the Court has at times indicated otherwise, it is now accepted
that the factors to be considered in analyzing how long is too long may be listed as
follows:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including

(a) inherent time requirements of the case,

(b) actions of the accused,

(c) actions of the Crown,

(d) limits on institutional resources, and [page788]

(e) other reasons for delay; and

4. prejudice to the accused.

These factors are substantially the same as those discussed by this Court in Smith,
supra, at p. 1131, and in Askov, supra, at pp. 1231-32.

[136] Cromwell J. in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 commented at para. 18 that
applying the factors set out in Morin inevitably leads to a detailed examination of particular time
 Page: 34

periods and the reasons why certain delays occurred, but cautioned that in undertaking this type
of analysis, the court should not lose sight of the forest for the trees.

[137] In R. v. Smith, [1989] 2 S.C.R. 1120 at para. 28, Sopinka J. confirmed that it is the
accused who has the ultimate or legal burden of proof on a s. 11(b) Charter application, although
a secondary or evidentiary burden may shift to the Crown, depending on the circumstances of the
case. For example, a long period of delay due to an adjournment requested by the Crown
ordinarily will call for an explanation from the Crown as to why the adjournment was needed. If
no satisfactory explanation is given, the Court can infer the delay was unjustified. Sopinka J.
emphasized, however, that it is preferable not to decide a s. 11(b) application on the basis of the
burden of proof but rather to evaluate the reasonableness of the overall delay having regard to the
Morin factors.

[138] Sopinka J. advised in Morin at para. 36 that an inquiry into unreasonable delay should be
undertaken only if the period of time in question is of sufficient length to raise the issue of
reasonableness. If the applicant is in custody, a shorter period of delay will raise the issue.

1. Length of the delay

[139] The time period to be examined is from the date of the charge to the end of trial:
Argentina v. Mellino, [1987] 1 S.C.R. 536 at 548; R. v. Rahey, [1987] 1 S.C.R. 588 at 633; R. v.
Kalanj, [1989] 1 S.C.R. 1594 at para. 16; Morin at para. 32. Sopinka J. clarified in Morin at
para. 35 that “charge” means “the date on which an information is sworn or an indictment is
preferred.” He also stated (at para. 35) that:

Pre-charge delay may in certain circumstances have an influence on the overall

determination as to whether post-charge delay is unreasonable but of itself it is not
counted in determining the length of the delay.

2. Waiver of time periods

[140] The operative period of delay may be shortened by subtracting periods of delay that have
been waived. In Morin at para. 38, Sopinka J. set out the test for waiver as follows:

This Court has clearly stated that in order for an accused to waive his or her rights
under s. 11(b), such waiver must be clear and unequivocal, with full knowledge of
the rights the procedure was enacted to protect and of the effect that waiver will
have on those rights... Waiver can be explicit or implicit. If the waiver is said to
be implicit, the conduct of the accused must comply with the stringent test for
waiver set out above. As Cory J. described it in Askov, supra, at p. 1228:

... there must be something in the conduct of the accused that is sufficient
to give rise to an inference that the accused has understood that he or she
 Page: 35

had a s. 11(b) guarantee, understood its nature and has waived the right
provided by that guarantee.

Waiver requires advertence to the act of release rather than mere inadvertence. If
the mind of the accused or his or her counsel is not turned to the issue of waiver
and is not aware of what his or her conduct signifies, then this conduct does not
constitute waiver. Such conduct may be taken into account under the factor
"actions of the accused" but it is not waiver. As I stated in Smith, supra, which
was adopted in Askov, supra, consent to a trial date can give rise to an inference
of waiver. This will not be so if consent to a date amounts to mere acquiescence in
the inevitable.

[141] In R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, Cromwell J. stated at para. 23:
“[s]cheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b)
purposes, require defence counsel to hold themselves in a state of perpetual availability.”

[142] In R. v. Koruz (1992), 125 A.R. 161, 72 C.C.C. (3d) 353 (C.A.), aff’d [1993] 1 S.C.R.
1134, a case decided after Askov but without the benefit of the reasons in Morin, the Alberta
Court of Appeal held that the approximately eleven-month delay in that case from arraignment to
the first scheduled six week trial date was not an unjustifiable systemic delay, but in any event
the time period had been waived by the defence. Fraser J.A. (as she then was), for the majority,
made the following comments about waiver at para. 55:

The record is clear that Crown counsel discussed the issue of trial dates with the
defence counsel for each defendant and agreed on a date before representations
were made to the court. (It cannot be argued that defence counsel were unaware of
their clients' rights under s. 11(b). On the first occasion the preliminary inquiry
was adjourned, the matter of s. 11(b) was expressly addressed by two of the three
counsel. The third was present during the exchange.) At arraignment, Crown
counsel advised the court that "I have discussed with counsel prospective dates for
hearing of this matter and it appears that the most convenient time that can be
offered is September of 1990." None of the defence counsel objected to this
representation. I take this to mean, given the reference to "convenient" that the
dates were indeed acceptable to all counsel. This being so, I regard the agreement
by defence counsel to the September trial date as tantamount to waiver, falling
squarely within the comments made by Sopinka J. in Smith, supra, at 1136:

Agreement by an accused to a future date will in most circumstances give

rise to an inference that the accused waives his right to subsequently allege
that an unreasonable delay has occurred. While silence cannot constitute
waiver, agreeing to a future date for a trial or a preliminary inquiry would
generally be characterized as more than silence.
[Emphasis in the original.]
 Page: 36

3. Reasons for the delay

(a) Inherent time requirements of the case

[143] Sopinka J. in Morin at para. 40 recognized that some delay is to be expected in criminal
cases. It takes time for a charge to be processed, for an accused to retain counsel and for
applications for bail to be heard and other pre-trial procedures to be completed. Counsel must
have time to prepare for trial and the trial itself takes time. All of these are inherent time
requirements of the case.

[144] As explained by Sulyma J. in R. v. Chan, 2003 ABQB 759, 342 A.R. 201 at para. 14,
relying on Morin:

Inherent time requirements will vary depending on the complexity of the case.
Counsel for the prosecution and defence counsel are not expected to devote
themselves exclusively to one case. Intake requirements, including retention of
counsel, bail hearings, police and administrative paperwork, and disclosure and
transcription of intercepted communications also result in inherent delays.
Sopinka J. in Morin at para. 42 noted that as the number and complexity of these
activities increase, so does the amount of delay which is reasonable.

[145] The inherent time requirements of a matter in relation to disclosure encompasses the
Crown’s preparation of disclosure (Morin at para. 42), the parties’ negotiation of the method of
disclosure delivery (R. v. Siemens (2000), 260 A.R. 57 at paras 111-113 (Q.B.)), the
accused’s review of that disclosure (Morin at para. 42) and fine-tuning by the Defence of any
requests for additional disclosure (Siemens at para. 110).

[146] Of course, a longer inherent time period also is to be expected when a case proceeds
through the two-stage process involving a preliminary inquiry. As stated by Sopinka J. in Morin
at para. 43:

Clearly a longer time must be allowed for cases that must proceed through a
"two-stage" trial process than for cases which do not require a preliminary
hearing. Equally, a two-stage process will involve additional inherent delays such
as further pre-trial meetings and added court dates. An additional period for
inherent time requirements must be allowed for this second stage. This period will
be shorter than in the case of the one-stage trial process because many of the
intake procedures will not have to be duplicated.

[147] In addition, the conduct of the trial itself, including argument, adjudication and
sentencing is considered part of the inherent time requirement (Morin at para. 43).
 Page: 37

[148] The inherent time requirement does not count against either the Crown or the Defence in
assessing unreasonable delay. It simply is deducted from the operative period of delay (R. v.
MacDougall, [1998] 3 S.C.R. 45 at para. 44).

[149] Sulyma J. in Chan at para. 464, a case which she described as being in the category of
most complex of cases, concluded that 18 months was the inherent time required to effect
disclosure and complete other intake requirements such as retaining counsel, for bail hearings to
be conducted, for police and administrative paperwork to be completed, for the accused to review
disclosure, for the parties to litigate necessary pre-trial motions and for the completion of
additional investigative steps.

[150] In R. v. Bains, 2010 BCCA 178, 254 C.C.C. (3d) 170, the appellant was charged with
conspiracy to traffic in cocaine. On a s. 11(b) application, the trial judge held that the inherent
time required was 27 months, given the complexity of the charge and multitude of accused. The
appellant did not take issue with that finding on appeal.

[151] In R. v. Bogiatzis, 2002 CarswellOnt 6122 (S.C.J.), a drug conspiracy and criminal
organization case, the trial judge noted that the 10 2/3 months taken by the Crown to provide
disclosure was justified and part of the inherent time requirements of the case.

[152] Disclosure took approximately 9 1/3 months in R. v. Adams, 2006 BCSC 350, a case
involving multiple accused charged with two counts of conspiracy. Romilly J. commented at
para. 107 that: “Not surprisingly, prosecutions involving wiretaps, as in the case at bar, present
complex and at times formidable disclosure endeavours.” The intake period in the Provincial
Court was held to be 11 months for all but two of the accused. Romilly J. concluded at para. 150
that a period of twelve months for the combined intake requirements at the Provincial and
Supreme Court levels was justified and reasonable and should be considered as part of the
inherent time requirements of the case. The 11 weeks of preliminary inquiry were held to be part
of the inherent time period, as were three and a half weeks reserved for pre-trial hearings, one
and one-half months allotted for the preparation of judgments on the issues raised on the various
voir dires and the almost three months reserved for the jury trial in this matter.

[153] In R. v. Blake, 2010 MBQB 115, 253 Man.R. (2d) 121, the applicant was charged with
conspiracy to import ephedrine. Over 85,000 private communications were intercepted in the
course of the cross-border investigation. Martin J. concluded that the 14 months from arrest to
substantial completion of disclosure was part of the inherent time requirements of the case.

[154] Finally, in R. v. Ebrekdjian, 2010 ONSC 3097, the applicants were charged with two
counts of conspiracy to traffic in cocaine and two criminal organizations counts. Power J.
concluded that the inherent time required for the case was somewhere between about nine and 12
months.

(b) Actions of the Applicants

 Page: 38

[155] In Morin, Sopinka J. explained at para. 44 that what is of concern in terms of this factor
are the actions (or inactions) of an accused which are voluntarily taken and have caused delay.

[156] These actions may include a change of counsel, challenging admissibility of seized
evidence, challenging the validity of a wiretap authorization and adjournments not amounting to
waiver (Morin at paras. 44-45).

(c) Actions of the Crown

[157] As stated by the majority in Morin at para. 46: “[t]his factor simply serves as a means
whereby actions of the Crown which delay the trial may be investigated. Such actions include
adjournments requested by the Crown, failure or delay in disclosure, change of venue motions,
etc.” If no satisfactory explanation as to the need for the adjournment or other delay is given, the
Court is entitled to infer it was unjustified (R. v. Smith, [1989] 2 S.C.R. 1120 at 1132-33).

(d) Limits on institutional resources

[158] The Supreme Court of Canada suggested in R. v. Askov, [1990] 2 S.C.R. 1199 that a six
to eight month period of institutional delay between committal and trial might be at the outside
limit of what is reasonable. However, in Morin, the court emphasized (at para. 48) that this was
simply an administrative guideline and not a limitation period, and that any such guideline would
require adjustment by trial courts to take into account local conditions and to reflect changing
circumstances.

[159] In Morin at para. 47, Sopinka J. commented that:

Institutional delay is the most common source of delay and the most difficult to
reconcile with the dictates of s. 11(b) of the Charter. It was the major source of
the delay in Askov. As I have stated, this is the period that starts to run when the
parties are ready for trial but the system cannot accommodate them.

[160] Sopinka J. suggested the following as a guideline for acceptable institutional delay
(Morin at para. 55):

In Askov, Cory J., after reviewing comparative statistics suggested that a period in
the range of 6 to 8 months between committal and trial would not be
unreasonable. Based on the foregoing, it is appropriate for this Court to suggest a
period of institutional delay of between 8 to 10 months as a guide to Provincial
Courts. With respect to institutional delay after committal for trial, I would not
depart from the range of 6 to 8 months that was suggested in Askov. In such a
case this institutional delay would be in addition to the delay prior to committal.
This reflects the fact that after committal the system must cope with a different
 Page: 39

court with its special resource problems. It is therefore essential to take into
account the inevitability of this additional institutional delay.

[161] He also stated at para. 53:

The application of a guideline will also be influenced by the presence or absence

of prejudice. If an accused is in custody or, while not in custody, subject to
restrictive bail terms or conditions or otherwise experiences substantial prejudice,
the period of acceptable institutional delay may be shortened to reflect the court's
concern. On the other hand, in a case in which there is no prejudice or prejudice is
slight, the guideline may be applied to reflect this fact.

(e) Other reasons for delay

[162] Sopinka J. in Morin at para. 59 grouped under this category reasons for delay not falling
within the other factors, such as actions of the judges.

4. Prejudice to the Accused

[163] This factor relates to prejudice to the accused suffered as a result of the unreasonable
delay, not the criminal proceedings themselves. As stated by L’Heureux-Dubé J. for the majority
in R. v. Conway, [1989] 1 S.C.R. 1659 at para. 19:

... the main purpose for the right to be tried within a reasonable time under s.
11(b) of the Charter, namely, to minimize the adverse effect on the person
charged resulting from the pending disposition of an unresolved criminal charge.
The focus of the protection is "the impairment or prejudice arising from the delay
in processing or disposing of the charges against an accused and not the
impairment or prejudice arising from the fact that he has been charged" (Rahey,
supra, at p. 624, per Wilson J.). The right recognizes that, with the passage of
time, subjection to a criminal trial gives rise to restrictions on liberty,
inconveniences and pressures detrimental to the mental and physical health of the
individual.

[164] Sopinka J. in Morin at para. 61 confirmed that prejudice may be inferred from prolonged
delay and such an inference is more likely to be drawn the longer the delay.

[165] Prejudice to the liberty and security interests of an accused also may be proved by
evidence. In Morin, Sopinka J. stated at para. 63 that:

[T]he accused may rely on evidence tending to show prejudice to his or her liberty
interest as a result of pre-trial incarceration or restrictive bail conditions. Prejudice
to the accused’s security interest can be shown by evidence of the ongoing stress
 Page: 40

or damage to reputation as a result of overlong exposure to the “vexations and

vicissitudes of a pending criminal accusation,” to use the words adopted by Lamer
J. in Mills, supra, at p. 538. The fact that the accused sought an early trial date
will also be relevant. Evidence may also be adduced to show that delay has
prejudiced the accused’s ability to make full answer and defence.

[166] In Godin at paras. 30-31 and 38, Cromwell J. stressed that proof of actual prejudice to the
right to make full answer and defence is not required as this is just one of three varieties of
prejudice, all of which must be considered together with the length of the delay and any
explanations for that delay. The other two varieties are prejudice to an accused’s liberty interest
in terms of pre-trial custody or bail conditions and security of the person, “in the sense of being
free from the stress and cloud of suspicion that accompanies a criminal charge.”

[167] While prejudice to the accused may be inferred, an assertion or inference of prejudice
may be rebutted by the Crown, which may establish by evidence that the delay benefited rather
than prejudiced the accused. As noted by Sopinka J. in Morin at para. 64, conduct of the accused
which falls short of waiver may be relied on to negative prejudice.

5. Balancing

[168] In Morin at para. 32, Sopinka J. explained that:

The judicial process referred to as "balancing" requires an examination of the

length of the delay and its evaluation in light of the other factors... It must then be
determined whether this period is unreasonable having regard to the interests s.
11(b) seeks to protect, the explanation for the delay and the prejudice to the
accused.

V. Analysis

A. Length of the Delay

[169] Alcantara, Knapczyk and Caines all were charged on November 24, 2006. The trial
presently is scheduled to recommence on April 11, 2011 and to conclude on June 16, 2011.
Accordingly, the operative time period is about four years and 6.5 months.

[170] The Applicants argue that this period of delay warrants judicial inquiry under s. 24(1) of
the Charter. The Crown agrees, as do I, that the time period between the date when the
Applicants were charged and the projected end of trial is sufficiently long so as to raise the issue
of reasonableness.

B. Waiver
 Page: 41

[171] The Crown did not allege that the Applicants had waived any of the relevant time period
in this case.

C. Reasons for the Delay

[172] Alcantara argues that the over-arching reasons for delay are the priority given to Koker B
and the late disclosure of the put away issue. He argues that the delay caused by the Crown in its
priorizing Koker B was 18 months: (a) the delay between the end of the inherent time period and
the commencement of the Preliminary in Koker A (6 months) and (b) the conduct of the trial (12
months). He buttresses his argument with the contention that another alternative open to the
Crown would have been to combine the prosecutions of Koker A and B. The delay caused by
later disclosure which caused the adjournment of the trial was eight months, for a total period of
delay attributable to the Crown of 26 months without factoring in prospective delay. Alcantara
submits on behalf of all the Accused that the disclosure should have started as of February 13,
2006, when the wiretap authorizations ended, not June of 2007.

[173] Alcantara contends that added to the above delay was the further delay of one and one
half to two and one half months because of the potential conflict of Mr. Chadi representing two
Crown witnesses and multiple alleged co-conspirators.

[174] Caines takes the position that the delay in this case has been occasioned by factors that
are not attributable to the Defence. He suggests that there are four main causes of Crown delay,
including: (1) the decision of the Crown to proceed with the Koker B trial first; (2) the Crown’s
failure to bring an early application to disqualify Mr. Chadi; (3) late disclosure of the use of the
put-away feature; and (4) Crown delay in complying with further disclosure requests by the
Defence arising from the put-away issue, which resulted in the disclosure motion and order for
production granted by the Court.

[175] Caines attributes a delay of 16 ½ months to the Crown as a result of the priority it gave to
the Koker B prosecution, consisting of: (a) the delay between the end of the inherent period and
commencement of the preliminary inquiry (3 months); (b) the time taken by the conduct of the
Koker B preliminary inquiry (1 ½ months); and (3) the conduct of the Koker B trial (12 months).
He argues that the time attributable to the Crown for not bringing a timely application to remove
Mr. Chadi is two months and submits that the Crown delay from late disclosure is eight months,
amounting to a total Crown delay of 26 ½ months.

[176] Knapczyk generally adopts the arguments advanced by Alcantara. He says the delay
attributable to the Crown includes the delay resulting from the priority which it gave to Koker B,
the late disclosure of use of the put away feature and the conflict involving Mr. Chadi.

[177] The Crown takes the position that the inherent time requirements of the case in relation to
Alcantara include the following periods:
 Page: 42

November 26, 2006 to November 13, 2007 (intake period)-352 days

April 7, 2008 to July 14, 2008 (preliminary inquiry)-98 days

July 14, 2008 to August 29, 2008 (transfer to this Court)-46 days

November 2, 2009 to January 20, 2010 (trial proper)-79 days

April 11, 2011 to June 16, 2011 (projected trial proper)-66 days

[178] The Crown argues the period November 13, 2007 to February 25, 2008 (104 days) is a
period of delay attributable to the actions of Alcantara or is reasonable institutional delay.

[179] The Crown says the following periods of delay should be attributed to Alcantara as
against him and to “other reasons for delay” in terms of Knapczyk and Caines:

February 25, 2008 to April 7, 2008 (Alcantara unavailable due to Koker B

preliminary inquiry)-41 days

August 29, 2008 to June 9, 2009 (Alcantara unavailable for trial because of Koker
B trial)-284 days

[180] The Crown submits that the following periods of delay should be attributed to all three
Applicants:

June 9, 2009 to November 2, 2009 (Alcantara unavailable due to conflict in

Defence counsel’s schedule)-146 days

September 10, 2010 to April 11, 2011 (pre-trial motions)-213 days

[181] The Crown acknowledges that the period January 20, 2010 to September 10, 2010 (227
days) can be attributed to it.

Stage 1: November 24, 2006 (charge) to October 31, 2007 (end of

intake period)

(a) Arguments of the parties

[182] The Applicants concede that this case falls into the complex category due to the number
of accused and charges. They acknowledge that the time required for the Crown to make
disclosure and for Defence counsel to brief the material would be inherently longer than in less
complex cases. Also, they agree that other intake requirements such as retaining counsel and
 Page: 43

completion of show cause hearings might take longer in cases of multiple accused, although that
was not the situation here.

[183] Alcantara submits that, considering the complexity of the case and the volume of
disclosure, the initial inherent time requirements for the present case was 10 months from
November 26, 2006 to September 28, 2007. During this period, he retained counsel, a show
cause hearing was conducted in the Provincial Court and bail review applications subsequently
were heard in the Court of Queen’s Bench. As well, the majority of disclosure was made during
this ten month period.

[184] Alcantara contends that he moved expeditiously with the setting of dates for the
preliminary inquiries. On May 4, 2007, the preliminary inquiry in Koker B was scheduled for
February 25, 2008 to April 4, 2008, while the preliminary inquiry in Koker A was scheduled for
April 7, 2008 to May 22, 2008.

[185] Caines submits that 18 months, the intake period found by Sulyma J. in R. v. Chan, 2003
ABQB 759 at para. 464, 342 A.R. 20, represents the outer limits of the inherent time
requirements for this case as it also embraced the period of pre-trial motions in Chan. He
contends, however, that in contrast to the situation in Chan, the method of delivering disclosure
was more efficient in the present proceedings (the hard drive having been delivered to the
Defence on June 1, 2007 and August 27, 2007), there are fewer accused and counsel involved,
and counsel for the Defence were prepared to set dates early and they worked co-operatively.
Caines submits that Blake was a far more complex case and the inherent time there was found to
be 14 months. Based on Chan, Blake, Bains, Adam and Ebrekdjian, Caines agrees with
Alcantara’s submission that the inherent time for disclosure and to prosecute a case such as the
present one is ten months.

[186] The Crown asserts that the almost one year period from November 26, 2006 to November
13, 2007, when Mr. Rice went on the record as counsel for Alcantara in Koker A, should be
included in the inherent time requirements of the case and treated as neutral delay. During that
time frame, the Crown organized and provided disclosure, judicial interim release applications
were addressed, preliminary hearing dates were reserved, and Alcantara retained new counsel
(his original counsel having been Mr. Moustarah).

[187] The Crown acknowledges that this is a lengthy intake period, but notes that this
prosecution is complex and involves conspiracy and organized crime charges, a large amount of
evidence, a significant number of witnesses and complicated pre-trial motions.

(b) Decision on Stage 1

[188] In my view, the initial intake period ran from November 24, 2006, the date when the
Applicants were charged, through to the end of October 2007. During that period, Caines and
Knapczyk retained counsel, Alcantara retained his initial counsel, a show cause hearing was held
 Page: 44

and dates were obtained for the preliminary inquiry. The hard drive containing the majority of
disclosure was delivered to the Defence on June 1, 2007 and August 27, 2007.

[189] The time required for review of disclosure by the Defence is considered part of the
inherent time requirements of the case. It is apparent from the Crown’s remarks before Caffaro
P.C.J. on May 1, 2007 that it was hoping to run the preliminary inquiry in Koker B in late
September and October of that year, with the Koker A preliminary inquiry to be held
immediately afterwards. As the same disclosure applied for both cases, I infer from the Crown’s
remarks that it believed the Defence could review the disclosure and both the Crown and the
Defence could prepare for at least one of the preliminary inquiries by late September 2007. That
might have been the case if full disclosure had been made by early May. However, given that the
hard drive with much of the disclosure was not delivered to counsel for Caines and Knapczyk
until June 1, 2007, the Crown may have been somewhat optimistic in its estimate. The Defence
does not dispute that the initial intake period was ten months. I am of the view, however, that it
extended to the end of October 2007, allowing for a reasonable time for Defence review of the
disclosure.

Stage 2: November 1, 2007 to April 6, 2008 (day before start of Koker

A preliminary inquiry)

(a) Events

[190] On May 4, 2007, the preliminary inquiry in Koker B was scheduled for February 25, 2008
to April 4, 2008, with a conference set for November 1, 2007, while the inquiry in Koker A was
scheduled for April 7, 2008 to May 22, 2008, with the conference set for December 4, 2007.

[191] Clayton Rice did not go on the record as counsel for Alcantara until November 13, 2007,
although obviously he had been retained at an earlier date as he received disclosure from the
Crown on August 27, 2007 and became counsel of record for Alcantara in Koker B on September
27, 2007.

(b) Arguments of the parties

[192] The Applicants maintain that part of the delay from the end of what they contend was the
inherent time period on September 28, 2007 to the start of the Koker A preliminary inquiry on
April 7, 2008 was the Crown’s decision to proceed with the Koker B prosecution first.

[193] The Applicants cite Askov, R. v. Pusic (1996) 30 O.R. (3d) 692 at para. 56 (Gen. Div.)
and R. v. Lee, 2010 ONCJ 163 at para. 24 as establishing that where the prosecution gives
preference to another case in the system, the consequences of that prioritization may be assessed
against the Crown.
 Page: 45

[194] Alcantara recognizes that as he was an accused in both cases, they could not proceed at
the same time. However, he submits that the time between February 25, 2008 and April 6, 2008
was a period when the Koker A matter lay dormant.

[195] Alcantara relies on R. v. W.B. (2000), 145 C.C.C. (3d) 498 at paras. 74-77 (Ont. C.A.).
The appellant in that case had been charged under an indictment with offences involving two
complainants. He was successful in having the charges relating to the different complainants
severed. The Court of Appeal concluded that the Crown’s initial decision to join the two sets of
charges was not unreasonable, nor was its subsequent decision to proceed to trial first on the
more serious set of charges. However, it also held that the Crown’s later failure to take steps to
give the second case some priority over others in the system could be considered in the balancing
exercise.

[196] Further, Alcantara argues that the Crown could have combined Koker A and B in one
prosecution as he faced charges in both, and Beau Yakimyshyn, one of the accused in Koker B, is
an unindicted co-conspirator in Koker A. Alcantara submits that if the Crown had exercised its
discretion in that manner, there would have been seven accused, so the manageability criteria in
R. v. Pangman, 2000 MBQB 71, 149 Man.R. (2d) 68, would still have been met.

[197] In Pangman, the Court raised severance of it own motion because of the number of
accused and complexity of the charges. While acknowledging that there is no science to the
decision on the maximum number of accused against whom a trial reasonably can proceed,
Krindle J. concluded at para. 30 that a trial of seven or eight accused, while difficult, should be
manageable for the jury. He commented that the interests of justice would require severance for
anything beyond that number.

[198] The Applicants also argue that there is nothing in the record to indicate why
commencement of the preliminary inquiry in this case was delayed for 11 months from May 4,
2007, when they pleaded not guilty and elected trial by judge alone, to April 7, 2008, aside from
Crown priorities and limits on institutional resources. They suggest it can be inferred that part of
the delay was to find a three month block of time during which to hold the preliminary inquiries
back to back, which was the Crown’s objective.

[199] Alcantara and Knapczyk take the position that the approximately six months from
November 29, 2007 to the start of the preliminary inquiry in this matter is attributable to the
Crown and limits on institutional resources.

[200] Caines submits that the Crown arbitrarily chose to proceed with the prosecution in Koker
B first and that from May 1, 2007, when he was in a position to set a preliminary inquiry date,
until April 7, 2008, he was at the mercy of the Koker B file. He too points out that Koker B was
dormant from February 25, 2008 to April 4, 2008. He claims that a period of about three months
from the end of the inherent time period is attributable to the Crown’s priorities and limits on
institutional resources.
 Page: 46

[201] The Crown says that even if the Court agrees with the Applicants that the initial inherent
period ended on September 27, 2007, it was prepared to proceed with the preliminary inquiry as
at that date. It says this can be inferred by its request to the Provincial Court in early May 2007
for dates in September and October 2007 in regard to the Koker B preliminary inquiry, with the
Koker A preliminary inquiry to follow immediately afterwards.

[202] The Crown points out that Mr. Rice went on the record for Alcantara in Koker B on
September 27, 2007, suggesting Alcantara would have counsel in Koker A shortly. It says the
delay between September 27, 2007 and November 13, 2007 was caused by Alcantara and should
be considered, as against Knapczyk and Caines, as a neutral period of delay due to “other
reasons.” The Crown argues it cannot be held responsible for that delay. It was Alcantara’s
responsibility to retain counsel. There is no suggestion the Crown delayed or interfered with his
attempt to retain new counsel.

[203] The Crown takes the position that the time period between November 13, 2007, which it
contends was the end of the initial inherent time period, to February 25, 2008, the start of the
Koker B preliminary inquiry, should be attributed to actions of Alcantara, reasonable limitations
of institutional resources or a combination of both.

[204] The Crown submits it can be inferred that Mr. Rice would have required a portion of the
time between November 13, 2007 and February 25, 2008 to prepare for the preliminary inquiry.
If that is the case, that time is properly attributable to Alcantara’s late retention of counsel as
against him. Otherwise, the time is attributable to limits on institutional resources and, as it is
under the eight to ten month guideline found to be an acceptable period of delay at the provincial
court level, this time should be classified as neutral delay.

[205] The Crown again submits with respect to Knapczyk and Caines that the time period from
November 13, 2007 to February 25, 2008 was due to limitations of institutional resources. It
accepts all parties should have been prepared to proceed to the preliminary inquiry as of
November 13, 2007. It contends this is a reasonable period of delay based on the guideline for
the Provincial Court system set out in Morin.

[206] The Crown argues there was valid reason to keep Knapczyk and Caines as co-accused
with Alcantara, despite any delay caused by Alcantara’s change in counsel on November 13,
2007. They were charged with being in a common enterprise as co-conspirators in a conspiracy
and co-accused in a criminal organization charge. The evidence against one is relevant against
the others. To severe the charges against Knapczyk and Caines from those against Alcantara
would have meant the Crown would have had to run two or three lengthy complex prosecutions
with essentially the same evidence in each.

[207] The Crown also argues that the time period from February 25, 2008 to April 7, 2008, the
start of the Koker A preliminary inquiry, should be attributed as against Alcantara to his own
 Page: 47

actions and should weigh against him. It states that neither Alcantara nor his counsel were
available to have the Koker A preliminary inquiry scheduled during this time period as they were
involved in the Koker B preliminary inquiry.

[208] The Crown maintains that any delay caused by unavailability of an accused involved in
multiple prosecutions should be counted against the accused rather than the Crown, in the same
way that it would be if the accused failed to retain counsel in sufficient time to proceed with a
scheduled trial date. The Crown concedes that if it is established the delay was caused by Crown
negligence in scheduling the separate prosecutions, a portion of the time may be attributable to it.

[209] The Crown submits that it was available to proceed with both preliminary inquiries
simultaneously. It had assigned separate prosecutors to the two prosecutions, which would have
allowed both preliminary inquiries to proceed at the same time. It says its scheduling of the two
preliminary inquiries consecutive to each other was nothing more than its acquiescence to the
inevitable.

[210] The Crown takes the position that its decision to proceed with Koker B first cannot be
attributed to any improper purpose or Crown negligence. It points out that Alcantara consented to
the order of proceeding with the prosecutions. It argues that there was little to distinguish Koker
A from Koker B: both involve serious charges; both concern a similar number of accused persons
and unindicted co-conspirators; both involved a detained accused; and that nothing stands out to
militate in favor of one proceeding first. To accede to the notion that the Crown must bear
responsibility for delay occasioned by its exercise of discretion in such circumstances would
mean that one or more prosecutions in a multi-pronged investigation would always be susceptible
to dismissal for delay because of the sequencing chosen by the Crown. The Crown suggests this
result is not logically tenable.

[211] The Crown argues that the February 25, 2008 to April 7, 2008 time period should be
attributed to “other reasons for delay” as against Knapczyk and Caines. The delay was caused by
actions of Alcantara, but there were valid reasons not to sever the charges against Knapczyk and
Caines, as discussed above. The Crown also notes that Knapczyk and Caines did not apply to
sever their charges from those of Alcantara to obtain an earlier hearing date.

(c) Evidence of Sherry Stasiuk

[212] Ms. Stasiuk, currently a business analyst for Court Management with Alberta Justice,
testified on this application. She has been with Court Services since 1980 and was a trial
scheduler for ten years. As part of her duties, she was responsible for setting dates for matters to
proceed in the Provincial Court. She recalled being asked on Project Koker to set back-to-back
dates for two sets of charges. In May 2007, dates in the Provincial Court were set based on police
availability, court time and counsel availability. A matter requiring one day of court time would
receive an earlier court date than one requiring 15 days of court time.
 Page: 48

[213] Ms. Stasiuk said that she gave Mr. Gregory Rice the earliest consecutive back-to-back
dates that she had available. She recalled that he was not happy that the dates were so late. She
could not remember if Defence counsel were present at the time, but she presumed they were
since she indicated their names on the scheduling notice and scheduled a pre-trial conference,
which would have required that she know the availability of Defence and Crown counsel.

[214] Ms. Stasiuk explained that when setting a date for a preliminary inquiry, normally she
would have gone into JOIN, one of the Courts’ computer system, she would have put in the
docket number and then would have checked officer availability. She advised that on May 4,
2007, when she scheduled the preliminary inquiry in the present matter for April 7, 2008 to May
22, 2008, police availability was not a factor in the scheduling as that information had not been
put into the system so far in advance.

[215] The preliminary inquiry in Koker B was scheduled for 28 days, starting on February 25,
2008. Ms. Stasiuk testified that she could have scheduled the Koker A preliminary inquiry first if
those had been her instructions. She had no idea why one of the Koker matters was scheduled
before the other. Initially, she said that it was probable an earlier date could have been found for
the first preliminary inquiry but for the instructions she received from the Crown to set the
matters back-to-back. After reviewing an accumulated times report for May 4, 2007, she
confirmed that as at that date she had a three week block available from December 3 to 21, 2007
(15 sitting days). The preliminary inquiry for Koker A was scheduled for 30 days, however.
December 21st was the last sitting day before the end of the year. Additional dates were available
on January 17, 18, 24, 25 and 28, with a further eight days available from January 30 through to
February 8, 2008. There were no further dates available in February without using the actual
Koker B dates.

[216] Ms. Stasiuk said that in her experience in scheduling inquiries and trials, she could not
recall ever scheduling a long inquiry or trial in such broken segments. She testified that
preliminary inquiries always run on consecutive sitting days. She has scheduled shorter trials and
split the trial dates up, but not for something requiring the amount of time necessary for the
Koker A or Koker B matters. She could not recall having offered counsel split times and said she
probably did not do so. As a result, she would not have been aware of whether counsel was
available on the December and January dates she listed above.

(d) Decision on Stage 2

[217] In my view, the Crown acted reasonably in separating the Koker A and Koker B
prosecutions rather than charging all of the accused in the two matters on one indictment. Seven
accused would have been at the very upper end of what the court in Pangman considered might
be manageable. The Crown was entitled to exercise its discretion in that regard.
 Page: 49

[218] In R. v. Guilbride, 2006 BCCA 392, 211 C.C.C. (3d) 465, the British Columbia Court of
Appeal indicated at para. 110 that: “[a]bsent a challenge for abuse of process, the Crown is free
to determine how it will prosecute a case, and delay must be assessed on the basis of the charges
as the Crown has framed them.”

[219] It was reasonable for the Crown to want to schedule the preliminary inquiries in both
matters back to back in order to maximize efficiency. In any event, it is clear from Ms. Stasiuk’s
evidence that even if she had not been instructed to provide back-to-back dates and even if the
Koker B matter had not been scheduled first, there was no 30 day period available for the Koker
A preliminary inquiry before February 25, 2008. It also made sense to run preliminary inquiries
involving charges of this complexity continually rather than in segments.

[220] Given this evidence, I conclude that the period from November 1, 2007 to February 24,
2008 must be attributed to institutional delay and that such period was reasonable considering the
preliminary inquiry was anticipated to take 30 days.

[221] Alcantara retained new counsel on or before August 27, 2007 and the Crown argues that
the time necessary for Clayton Rice to review disclosure and prepare for the preliminary inquiry
in Koker A should be counted against Alcantara.

[222] In Chan at para. 407, Sulyma J. discussed the issue of dominant or overriding cause for
delay, stating:

I reject Mr. Bloos' argument that where the "dominant cause" of delay is a
consequence of Crown action or inaction, other activity occurring within those
Crown-action delay periods is irrelevant for purposes of the Morin delay
calculation. I do not accept that Crown-action delay necessarily absorbs inherent
or Defence delay. In my view, Morin mandates that all reasons for delay be
examined and weighed in determining whether the delay involved has been
unreasonable.

However, I do acknowledge that a number of cases use language that suggests

concurrency and dominant cause principles, including Antinello, Sander, Court,
Siemens, and Tapp. While the terms "concurrent cause" and "dominant cause" are
not employed, the courts do refer to a "root cause" or to a particular cause
overshadowing another. Glithero J. in Court found that non-disclosure in that case
was so extensive he was unable to perform the traditional Morin time analysis. No
such difficulty arises in the present case. In undertaking the Morin analysis, I will
have consideration to concurrent causes of delay and the weight to be assigned to
each cause in examining particular periods of time and the whole of the delay.

[223] In my view, the institutional delay was the more significant cause of delay in this period.
The evidence is that, even if Alcantara had not retained new counsel and even if Koker A had
 Page: 50

proceeded first, the preliminary inquiry in this matter could not have commenced prior to
February 25, 2008.

[224] As Alcantara was an accused in both matters, he cannot argue that the Crown was
responsible for the period of delay between the start of the Koker B preliminary inquiry and the
start of the Koker A preliminary. In my view, as against Alcantara, that period of delay should be
regarded as “other reason for delay” given that he and his counsel, who acted in both matters,
were unable to attend both preliminary inquiries simultaneously. In terms of his submission that
Koker A was inactive from February 25, 2008 to April 6, 2008, I note that pre-preliminary
inquiry conferences were held during that time.

[225] Caines and Knapczyk submit that, as against them, the delay from February 25, 2008 to
April 6, 2008 should be attributable to the Crown as it was the Crown’s choice to proceed with
the Koker B matter first.

[226] In R. v. Ghavami, 2010 BCCA 126, 253 C.C.C. (3d) 74, most of the delay complained of
flowed from the Crown’s decision to prosecute two accused and others on a federal indictment
when those two accused were facing a concurrent provincial indictment. The court commented at
para. 41 that: “[i[n the absence of an allegation of abuse of process, the Crown's charging
decision cannot be challenged,” but noted that this rule does not preclude the court on a s. 11(b)
application from bringing into the balance the Crown's conduct of the prosecution so long as the
focus remains on delay and the causes of that delay. It reiterated at para. 54 that any delay
flowing directly out of a charging decision is not attributable to the Crown, and, therefore, such
delay takes on a lower weight in the balancing under s. 11(b). The court was of the view that the
charging decision establishes the inherent time requirements for the case given that the number
and type of charges, number of accused, and nature of the offences dictate complexity, time
required for preparation, and intake requirements.

[227] It was within the Crown’s discretion to keep Koker A and Koker B as separate
prosecutions and to include the charges against Alcantara in the present Indictment. As Alcantara
also was one of the accused charged in Koker B, the Crown had to choose one of the matters to
proceed first as it could not run them simultaneously. There has been no suggestion that it acted
improperly in choosing to schedule the Koker B preliminary inquiry before that of Koker A.
While it is possible that the preliminary inquiry in one of the matters could have been scheduled
for the mornings and the preliminary inquiry in the other for the afternoons, there is no evidence
that such scheduling would have resulted in the Koker A preliminary inquiry concluding before it
actually did.

[228] I agree with the Crown that, as against Caines and Knapczyk, the period between
February 25, 2008 and April 6, 2008 should be attributed to “other reasons for delay.”

Stage 3: April 7, 2008 (start of preliminary inquiry) to July 14,

2008 (committal to stand trial)
 Page: 51

(a) Events

[229] The preliminary inquiry in this matter commenced on April 7, 2008. The three Accused
were committed to stand trial on July 14, 2008.

(b) Arguments of Caines

[230] Caines suggests that if Koker B had not existed (and the Crown had brought the
appropriate motion with respect to Mr. Chadi at the earliest date possible), Koker A would have
been at the committal stage when the committal in Koker B occurred and he would have been in
a position to set dates for trial or pre-trial motions as early as May 30, 2008, which was the next
arraignment date in the Court of Queen’s Bench after the Koker B committal. Therefore, he
contends the entire delay from May 30, 2008 to August 29, 2008 is solely attributable to the
Crown.

(c) Decision on Stage 3

[231] As previously stated, Alcantara was involved in both prosecutions. The Crown had to
select one of the matters to proceed first. In my view, it was reasonable for the Crown to proceed
against all three Accused under one Indictment. Caines and the other Accused did not apply for
severance (during this time period). Any delay occasioned by Koker B proceeding first at the
preliminary inquiry stage already has been accounted for as “other reasons for delay”. In my
view, analysis of the remainder of the timeline should be undertaken on the basis of what, in fact,
occurred rather than what might have occurred if Koker A had proceeded first.

[232] I conclude that the time period from April 7, 2008 to July 14, 2008 taken for the
preliminary inquiry in the present matter and for the Provincial Court Judge to render his
decision on committal was part of the inherent time requirements of the case.

Stage 4: July 15, 2008 (day after committal to stand trial) to

September 5, 2008 (adjournment request)

(a) Events

[233] The Indictment in Koker A was filed on August 22, 2008.

[234] On August 29, 2008, the Crown and Mr. Gubbins, as agent for counsel for Alcantara,
asked for an adjournment of the proceedings until September 5, 2008.

(b) Arguments of the parties

[235] Alcantara suggests that the time that elapsed pending assignment of a trial judge in this
case falls under the category of institutional delay, but concedes the delay was marginal.
 Page: 52

[236] The Crown submits that the time period from July 14, 2008, when the Applicants were
committed to stand trial, until August 29, 2008, the first date for arraignment, should be
attributed to inherent time requirements of the case. During this time period, the prosecution was
moved from the Provincial Court system to the Court of Queen’s Bench for trial. The Crown
suggests this was done in an expeditious manner and was reasonably required to advance the
prosecution to the trial stage.

(c) Decision on Stage 4

[237] In my view, the delay from July 15, 2008 to August 22 2008 was part of the inherent time
requirements of the case as it is attributable to the Crown preparing and filing the Indictment.

[238] The delay from August 23, 2008 to the next arraignment date of August 29, 2008 was
institutional.

[239] It appears from the transcript of the comments made on August 29th by Mr. G. Rice for
the Crown and Mr. Gubbins that Defence counsel had been discussing possible trial dates, taking
into consideration the pre-trial motions in Koker B set for February 2 to May 29, 2009. Mr.
Hrabcak was not in attendance on August 29th, but Mr. G. Rice advised that Mr. Hrabcak
apparently had been under the impression that Defence counsel would not be in a position to
schedule the trial on that date. Mr. G. Rice and Mr. Gubbins both asked that the matter go over to
the next arraignment date, although Mr. G. Rice, who appeared for Mr. Hrabcak, did have Mr.
Hrabcak’s calendar and presumably could have agreed to trial dates if Defence counsel had been
prepared to set them.

[240] The Crown and the agent for counsel for Alcantara both asked for the adjournment. The
comments of counsel for Alcantara on September 5, 2008 suggest that even by then Alcantara
and the Crown were not in a position to agree to trial dates. The difficulty in scheduling may
have arisen as a result of Alcantara’s involvement in both Koker A and Koker B prosecutions,
but given the comments made by Ms. Karout as agent for Mr. Chadi on September 5, 2008, the
adjournment also may have been sought because the Crown and Mr. Chadi were attempting to
resolve the matter as against Caines before Mr. Chadi decided whether to withdraw as counsel
due to his conflict of interest.

[241] This short time period may simply be accounted for by the exigencies of scheduling
among multiple counsel at the tail end of the summer break. I conclude that this time period, if
not actually waived by the Defence, should be considered as “other reasons for delay.”

Stage 5: September 6, 2008 (day after adjournment request) to

October 24, 2008 (setting of trial dates)

(a) Events
 Page: 53

[242] As noted above, an agent for Mr. Chadi appeared on the September 5, 2008 arraignment
date and advised the Court that Mr. Chadi was requesting a four week adjournment. The Court
adjourned the matter to the next arraignment date, September 26, 2008.

[243] On September 26, 2008, Mr. Chadi applied to be removed as counsel of record for Caines
and Knapczyk due to conflict of interest. Counsel for Alcantara advised the Court that he was not
too concerned with the previous three-week period of delay, but was concerned with any longer
delay as they were on the verge of scheduling trial dates.

[244] It was not until October 24, 2008 that the tentative date of November 2, 2009 was
selected for commencement of the trial. This was confirmed on November 28, 2008, when Mr.
Juneja advised the Court that he had been retained by Knapczyk.

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

[245] Caines was charged in Information No. 061444279P1, sworn on November 24, 2006. He
was arrested on December 5, 2006, after turning himself in to the police. Information No.
070060157P1 was sworn on January 8, 2007 as a replacement for Information No. 061444279P1.
Caines was jointly charged with Alcantara and Knapczyk in this new Information with
conspiracy to traffic in cocaine and substantive trafficking. Caines also was charged in a separate
count with a criminal organization offence (charges currently before this Court).

[246] Knapczyk retained Mr. Chadi as counsel starting December 4, 2006 and Caines retained
Mr. Chadi as counsel starting December 5, 2006. By February 26, 2007, Mr. Chadi was counsel
of record for both Caines and Knapczyk. The Crown did not object to Mr. Chadi representing
either, although Mr. Chadi previously had represented Marche, one of the unindicted co-
conspirators and a witness the Crown intended to call with respect to this matter.

[247] From the date the first information was filed on November 24, 2006, Defence and Crown
were aware that the unindicted co-conspirators include Aaron McDonald (“McDonald”), Jody
Smith, Michael Marche (“Marche”), Cal Gregoire (“Gregoire”), Jeremy Cardinal (“Cardinal”),
Charles Weston Flight (“Flight”), John Norman Caines, Ricco King, Melissa Diane King, Mark
Andrew Hoskins (“Hoskins”), Farhan Sattar, Kamran Sattar, Jamie Richard Correia, Patrick
Felix, Anthony Saunders, Beau Yakimishyn, Josh Preston and Nicholas Bela Van Den Hurk.

[248] The following description of the counts against Caines (Counts #1, 2, 4-11), Alcantara
(Counts #1-3) and Knapczyk (Counts #1-3) was available to the Defence at least by August 27,
2007 through disclosure of the Report to Crown Counsel Narrative in Koker A:

Count # 1: Conspiracy to traffic cocaine between the dates of:

22 August 2005-14 February 2006

Count # 2: Trafficking (cocaine) between the dates of:

 Page: 54

22 August 2005-14 February 2006

Count # 3: Aiding the commission of an offence for a criminal organization

between the dates of 22 August 2005-14 February 2006

Count # 4: Instructing the commission of an offence for a criminal

organization between the dates of 22 August 2005-14 February
2006

Count # 5: Possession of proceeds of crime between the dates of:

22 August 2005 -17 December 2005

Count # 6: Possession for the purpose of trafficking (cocaine)

(re: Aaron MCDONALD on 15 September 2005)

Count # 7: Possession for the purpose of trafficking (cocaine)

(re: Charles FLIGHT on 27 October 2005)

Count # 8: Possession for the purpose of trafficking (cocaine)

(re: Michael MARCHE on 24 November 2005)

Count # 9: Possession for the purpose of trafficking (cocaine)

(re: KING’s rental property, Fort McMurray on 1 December 2005)

Count # 10: Possession for the purpose of trafficking (cocaine)

(re: CARDINAL seizure, Fort McMurray on 17 January 2006)

Count #11: Obstruction of justice: 20 October 2005.

[249] The dates above in Counts #1 and 2 were amended in the present Indictment to July 1,
2005 to March 31, 2006.

[250] The disclosure provided to Knapczyk and Caines at least by June 1, 2007 and to
Alcantara at least by August 27, 2007 contained an executive summary of the Report to Crown
Counsel, including a document described as “source materials in support of W.T. 1713” and
entitled “Overview of Relevant Seizures.” The document states that:

While WT 1709, 1712 and 1713 were in effect, the investigative team made a
number of substantive seizures in relation to Caines and his network of traffickers.
The seizures are as follows:

(a) On September 15, 2005, Fort McMurray Drug Section

investigators executed a warrant at Aaron Patrick McDonald
 Page: 55

(“McDonald”) and Letisha Dawn Peters’ (“Peters”) residence,

seizing cocaine, cash, a handgun, and other items. While this
investigation was independent of Project Koker, the police allege
the seized cocaine belonged to Caines.

(b) On October 27, 2005, Banff investigators stopped a vehicle driven

by Charles Weston Flight (“Flight”) and executed a warrant on
behalf of the Koker investigative team. Cocaine and marihuana
was seized from the trunk of the car. The police allege Flight had
returned from British Columbia after picking up the cocaine on
behalf of Caines.

(c) On November 10, 2005, at the request of the Koker investigative

team, Red Deer Drug Section investigators stopped a vehicle
driven by Caines, and seized $95,600.00 in cash from the vehicle.

(d) On November 24, 2005, Red Deer investigators stopped a vehicle

driven by Michael Francis Marche (“Marche”) and executed a
warrant on behalf of the Koker investigative team, seizing cocaine
from the vehicle.

(e) On December 1, 2005, Fort McMurray investigators received a

complaint about a suspicious substance found at an abandoned
rental property. The investigators attended at the scene and seized
cocaine from the property. The rental property is alleged to have
been owned by Ricco King. The police contend the cocaine
belonged to Caines.

(f) On January 17, 2006, Fort McMurray investigators executed a

warrant at a residence and seized cocaine, $12,000.00 in cash and a
money counting machine. While this investigation was
independent of Project Koker, the police allege the seized cocaine
belonged to Caines.

[251] The Report to Crown Counsel, which was disclosed to the Defence, also referred to the
anticipated role of Michael Marche as a Crown witness, as well as to the following alleged
relationships between various individuals:

1. Marche is a “co-operating witness for the prosecution:”

...on 23 February 2006, Michael Marche provided a sworn statement to Cpl.

Anderson of the Edmonton Drug Section ... . MARCHE is a former trusted
 Page: 56

member of CAINES’ network and is now a cooperating witness for the

prosecution.

In the statement, MARCHE identified himself as a significant cocaine

trafficker in CAINES network. MARCHE stated that he had received a
call from Caines on 15 September, advising Marche that an anticipated
shipment of cocaine had come in, and that MARCHE was to attend
McDONALD’S residence to pick up his supply. MARCHE advised that he
attended 123 Gypsy Place in Fort McMurray, as instructed by CAINES,
and subsequently provided information to investigators that resulted in the
aforementioned CDSA Search Warrant.

2. The seizures of cocaine are said to be that of “...Caines’ network of

traffickers...” including McDonald, Flight, Marche and Ricco King.

3. There is a transcript of an interview in which the lead investigator,

Corporal Anderson, advises Caines of the theory of the police, naming the
co-conspirators as McDonald, Marche, Gregoire, Cardinal, Flight, John
Caines, the Kings, Hoskins, and others, as well as contending that Caines
attempted to obstruct justice through his dealings with Berube.

4. The Report speaks to the charges against Flight and John Caines, and that
Caines, Alcantara and Marche are alleged unindicted co-conspirators in
that prosecution.

5. The Report contends that John Caines worked in concert with Flight in the
Caines operation.

6. The Report contends that Cardinal was a trafficker in Fort McMurray,

working in the Caines network.

[252] On June 14, 2007, Anderson P.C.J. wrote to Crown and Defence counsel confirming each
of their retainers. He referred to Mr. Chadi as counsel for Caines, Knapczyk, Flight and John
Caines. He wrote:

Mr. Chadi has advised the Court that he has satisfied himself he is not acting in a
conflict of interest and has the consent of each of his four clients to act for the
other. The Crown is not alleging a conflict of interest which I understand to
include an implicit representation that the Crown does not foresee calling any one
of the four accused against any of the others, with some being charged on separate
informations. [Emphasis added.]
 Page: 57

[253] On November 22, 2007, Caines signed a “Consent Regarding Independent Legal Advice”
respecting Mr. Chadi’s joint representation of him and Knapczyk, which stated:

I, Jeffrey Mark Caines, confirm that I spoke to Ajay Juneja, Barrister and Solicitor
on the 15th day of November 2007 and understand that Mr. Chadi represents both
myself and Alan Peter Knapczyk regarding criminal charges stemming from and
between the years of 2005 and 2006. These charges pertain to Conspiracy to
Traffic, Criminal Organization, Trafficking in Cocaine etc.

There is presently a Preliminary Inquiry set for April 7, 2008 until May 22, 2008
in Edmonton, Provincial Court and I acknowledge and waive my rights to
Independent Counsel and consent to Mr. Chadi acting for myself and Mr.
Knapczyk regarding said Preliminary Inquiry.

[254] On November 22, 2007, Knapczyk signed a “Consent Regarding Independent Legal
Advice” mirroring that of Caines.

[255] On November 22, 2007, Mr. Juneja signed a Certificate of Independent Advice certifying
that: Knapczyk attended before Mr. Juneja respecting charges of conspiracy to traffic, criminal
organization and trafficking in cocaine; his co-accused is Caines; Knapczyk appears to
understand the charges and that he and his co-accused have both retained Mr. Chadi and wish
him to represent them at the preliminary inquiry; he wishes to make no statement himself or
against Caines, though he understands that he can do so; he wishes Mr. Chadi to represent him
despite the fact Caines is his co-accused and also represented by Mr. Chadi; that Mr. Juneja is
satisfied Knapczyk is fully apprized of potential consequences and is doing so with full
knowledge and voluntary mind.

[256] On December 21, 2007, the Crown wrote to Mr. Chadi indicating that the waivers and
certificates were deficient in that (a) they referenced the preliminary hearing only and must
reference the trial; (b) the independent counsel was the same person (Mr. Juneja). On January 23,
2008, the Crown again wrote seeking the amended waivers and certificates. On February 21,
2008, the Crown wrote, noting that it “was on the basis of your representations that a proper
waiver and affidavits of independent advice would be obtained from both Jeff Caines and Alan
Knapczyk that the Crown was prepared to proceed without raising the conflict issue.”

[257] On January 23, 2008, the Crown wrote to Mr. Chadi and Mr. Clayton Rice advising that
the Crown wished to address the issue of conflict at a case management meeting scheduled for
January 24th and asking that the revised documents be provided before the meeting.

[258] On February 21, 2008, the Crown again wrote to Mr. Chadi noting that his agent had
assured the Crown at the last case management hearing that the waivers and affidavits would be
forwarded to the Crown imminently, and providing a deadline of February 26, 2008.
 Page: 58

[259] On February 22, 2008, Caines signed a new Consent form referencing both the
preliminary hearing and trial, with Mr. Brownlee signing the Certificate of Independent Legal
Advice.

[260] On February 25, 2008, Knapczyk signed a new Consent form referencing both the
preliminary hearing and trial, with Mr. Juneja signing the Certificate of Independent Legal
Advice.

[261] On April 3, 2008, Anderson P.C.J. wrote to Philp P.C.J., the judge presiding over the
preliminary hearing, stating:

The issue of conflict was canvassed at several stages during the case management
conferences. It was raised because not only is Mr. Chadi acting for the two
persons charged jointly on this information; he also acts for two of the individuals
named in the alleged conspiracy. In a parallel prosecution, Mr. Chadi’s conflicted
position became irresolvable, shortly before the scheduled preliminary inquiry
such that the preliminary inquiry had to be adjourned so that both could get new
counsel.

I have been advised by Counsel that the conflict issue will not arise during the
course of this preliminary inquiry and the accused have been advised that if it does
arise such that Counsel can not continue, they must expect that the preliminary
will continue.

[262] Anderson P.C.J. was referring to John Caines and Flight as the other two individuals
named in the alleged conspiracy for whom Mr. Chadi was acting.

[263] The Koker A preliminary inquiry commenced on April 7, 2008 before Philp P.C.J.. On
April 22, 2008, the Crown called Michael Marche to the stand. The record of the proceedings for
that day shows Mr. Hrabcak and others attended for the Crown, Mr. Rice for Alcantara, Mr.
Chadi for Knapczyk (likely for Caines as well, although the record does not say so), and Mr.
Juneja for Caines and Knapczyk. Mr. Hrabcak examined Marche in chief. The following day,
April 23rd, in an effort to employ the “Dix” procedure whereby independent counsel would cross-
examines the witness, Mr. Juneja cross-examined Marche. Mr. Chadi was not present. Marche
was then cross-examined by Mr. Rice and re-examined by the Crown. On April 24th, the Crown
examined Debbie Weiss, followed by cross-examination by Mr. Rice. Mr. Chadi was acting for
Caines and Knapczyk and had no questions, nor was there any re-direct by the Crown.
 Page: 59

(c) Facts relevant to the conflict issue relating to other cases

in which Mr. Chadi acted as defence counsel for
unindicted co-conspirators and an intended witness in
Koker A

[264] In addition to being counsel of record for both Caines and Knapczak, Mr. Chadi
represented a number of individuals who are unindicted co-conspirators in the Koker A
prosecution in separate proceedings against them for charges relating to events that underlie
certain of the charges in the Informations and present Indictment. One of those unindicted co-
conspirators, Marche, also is a prospective Crown witness in Koker A.

[265] The role of Mr. Chadi in the various related prosecutions, including his representation of
Caines and Knapczyk in the present prosecution (Koker A), commenced in 2001 and continued
until September 26, 2008, when he was permitted to withdraw as counsel for Caines and
Knapczak. The time frames and interconnections are complex. The parties being represented, the
different prosecutions, and the time frames involved are set out in the chronology below and in
even greater detail in Appendix A.

[266] The five events the Crown seeks to prove against Caines in Counts #6 to 10 of the present
Indictment reference the same events that were the subject of charges brought individually
against McDonald, Marche, Cardinal, Flight and John Caines, as summarized below and detailed
in Appendix A.

[267] The five events the Crown seeks to prove against Caines in Counts #6 to 10 of the present
Indictment reference the same events described in the Overview of Relevant Seizures in relation
to McDonald, Marche, Cardinal, Flight and King.

[268] The events the Crown seeks to prove against Caines in Count #8 of the present
Indictment reference the same events of November 24, 2005 that were the subject of charges
arising on that same date against Hoskins.

[269] It is further my understanding that the event involving the obstruction of justice regarding
Melanie Berube that the Crown seeks to prove against Caines in Count 11 of the Indictment is
alleged to be obstruction (that arose on October 20, 2005) respecting charges against Caines and
Berube that arose in 2001, which concluded for Berube by January 31, 2003 and for Caines in
2008.

[270] In the following chart (taken from material gathered by counsel for Caines and provided
to the Court in relation to the charges against Melanie Berube (“Berube”) and the unindicted co-
conspirators Hoskins, John Caines, Flight, Marche, Gregoire, McDonald and Cardinal), the first
column identifies the accused in related proceedings. Those whose names are bolded were
represented by Mr. Chadi. The earliest date an alleged offence is said to have arisen, the charge
date, the approximate start of Mr. Chadi’s representation of the accused and the end date of his
 Page: 60

representation [I note that there were periods of time within those time frames when one or more
of the accused whose names are bolded were represented by other counsel], together with
information concerning the proceedings, are given in the other columns:

Related Proceedings in Which Jamel Chadi Acted for an Accused

Name of Alleged Date of M r. Chadi M r. Details

Accused Date of Charge Started Chadi
Offence Acting Stopped
Acting

Caines and Apr. 20, Apr. Apr. 25, Oct. 1, Charges were possession of cocaine for the
M elanie 2001 20, 2001 2008 purpose of trafficking. Caines also was
Berube* 2001 charged with trafficking in cocaine. Mr.
Chadi represented the two accused until at
least February 2002. He acted for Berube at
the preliminary inquiry on December 3,
2002. Caines and Berube were committed to
stand trial on that date. The Berube
committal was quashed prior to January 21,
2003. Mr. Chadi recommenced acting for
Caines until October 27, 2005, when the
charges against Caines were stayed by the
Crown. The charges were reactivated on
October 25, 2006 against Caines. Mr. Chadi
again acted for Caines until October 1, 2008,
when the charges were concluded. *Count
11 in Koker A alleges that on October 20,
2005, Caines offered Berube a bribe in
exchange for her evidence

Aaron Sept. 15, Sept. Oct. 11, June 28, Charges were related to various alleged drug
M cDonald* 2005 16, 2005 2006 and firearms offences, including possession
and Letisha 2005 of cocaine for the purpose of trafficking in
Peters Fort McM urray. Mr. Chadi represented the
two accused until they entered guilty pleas to
certain of the charges and other charges were
withdrawn on June 28, 2006. *M cDonald is
an unindicted co-conspirator in Koker A

M ichael Nov. 24, Nov. Nov. 30, Dec. 20, Charges were possession of cocaine for the
M arche* 2005 24, 2005 2005 purpose of trafficking. A stay of proceedings
and Debbie 2005 was entered on December 20, 2005. Mr.
W eiss Chadi represented both accused. Marche
gave sworn statement to the police on Feb.
23, 2006. *M arche is an unindicted co-
conspirator in Koker A and is an intended
Crown witness.
 Page: 61

Caines, Jul. 1, Nov. Feb. 26, Sept. 26, Charges are alleged drug offences and
Knapczyk 2005 24, 2007 2008 criminal organization offences. Mr. Chadi
and 2006 went on the record as counsel for Caines and
Alcantara Knapczyk by or before February 26, 2007
(Koker A) and appears to have been acting for them
before that date. On September 5, 2008, he
applied to withdraw from the record due to
conflict of interest and was given leave to do
so on September 26, 2008.

Harry Jan. 17, Jan. 18, Jan. 24, Jan. 7, Charges were possession of drugs for the
Armstrong 2006 2006 2006 2008 purpose of trafficking and being in
Breakell, possession of the proceeds of crime in Fort
Jeremy McMurray. Mr. Chadi and then A. Gill of
Cardinal* Mr. Chadi’s office acted for all three. On
and M elissa February 1, 2008, Cardinal pleaded guilty to
Dawn certain counts while all counts against
Shephard Breakell and Shephard were withdrawn.
*Cardinal is an unindicted co-conspirator
in Koker A.

Cal Oct. 8, ? Nov. 7, Mar. 12, Charges were for assault, resisting a police
Gregoire* 2006 2006 2007 officer and other offences. A. Gill of Chadi
and Co. represented Gregoire until new
counsel appeared on March 12, 2007.
*Gregoire is an unindicted co-conspirator
in Koker A.

Charles Oct. 18, Nov. Nov. 30, Mar. 31, Charges were for conspiring with Caines,
W eston 2005 24, 2006 2008 Marche and others to traffic in cocaine and
Flight and 2006 for possession of the proceeds of crime. Mr.
John Chadi represented both accused. The Crown
Norman addressed Anderson P.C.J. on February 22,
Caines* 2008 about a conflict in Mr. Chadi
representing both accused. On March 31,
2008, Mr. Chadi withdrew from the record
for John Caines. On April 1, 2008, Flight,
representing himself, entered pleas of guilty
to certain charges. *Flight and John Caines
are unindicted co-conspirators in Koker
A.
 Page: 62

Ricco Oct. 28, Nov. Dec. 12, Sept. 17, Koker C: Charges were for conspiring with
King*, 2005 24, 2006 2008 Caines, Marche and persons unknown to
Melissa 2006 traffic in cocaine. Melissa King and Hoskins
Diane also were charged with possession of the
King*, proceeds of crime. Mr. James, counsel for
M ark co-accused Ricco and Melissa King, wrote to
Andrew the Crown querying why the Crown had not
Hoskins* objected to Mr. Chadi acting for Hoskins
and others given his prior representation of Crown
witnesses Marche and W eiss. At the
preliminary inquiry on September 15, 2008,
Mr. Chadi applied to withdraw, referring to
independent counsel having cross-examined
Marche and W eiss in the Koker A
preliminary inquiry. He indicated that the
spectre of Caines being called by the
Defence put him in an untenable position. On
September 17, 2008, Mr. Chadi’s application
to withdraw was granted. Guilty pleas were
entered on February 5, 2009 with S. Virk
acting as counsel for Hoskins. *Hoskins and
the Kings are unindicted co-conspirator in
Koker A.

(d) Arguments of the parties

[271] It is argued by the Defence that this period of about seven weeks delay is attributable to
Mr. Chadi being in a position of conflict of interest, and the responsibility for that rests with the
Crown.

[272] Alcantara originally submitted that there was a period of delay from September 5, 2008
until October 24, 2008 which was attributable, as against him, to “other reasons for delay” or
possibly Crown delay as being the consequence of Mr. Chadi failing to deal with his conflict of
interest issues at an earlier date and the Crown acquiescing in that failure. Alcantara now takes
the position that the delay occasioned by the conflict problem extended from September 5, 2008
to November 28, 2008, when new counsel for Knapczyk was on board, and that it is delay
attributable to the Crown’s failure to object to the Chadi conflict at an early stage.

[273] Alcantara notes that ss. 11(b) and 7 of the Charter protect liberty, security and fair trial
interests, and argues that the conflict issue engaged his fair trial interests. He points to Askov at
para. 43, where Cory J. stated that s. 11(b) is primarily concerned with an aspect of fundamental
justice guaranteed by s. 7. The interplay between these sections of the Charter was described in
the following manner by Lamer J. in Conway at para. 65:

In my view, the fundamental purpose of s. 11(b) is to secure, within a specific

framework, the more extensive right to liberty and security of the person of which
no one may be deprived except in accordance with the principles of fundamental
 Page: 63

justice. The purpose of s. 11(b) can, in other words, be ascertained by reference to

s. 7 of the Charter. Section 11(b) is designed to protect, in a specific manner and
setting, the rights set forth in s. 7, though, of course, the scope of s. 7 extends
beyond those manifestations of the rights to liberty and security of the person
which are found in s. 11. Hence, the focus for the analysis and proper
understanding of s. 11(b) must be the individual, his or her interests and the
limitation or infringement of those interests.

[274] Alcantara also refers to Morin at para. 27, where Sopinka J. reiterated that the individual
interests that s. 11(b) seeks to protect are “...(1) the right to security of the person, (2) the right to
liberty, and (3) the right to a fair trial.”

[275] Finally, he refers to the comments of La Forest J. in R. v. Beare; R. v. Higgins, [1988] 2

S.C.R. 387 at para. 39 that while the common law is not determinative of whether a particular
practice violates a principle of fundamental justice, it is a major repository of the basic tenets of
our legal system. As I understand this aspect of Alcantara’s argument, he is saying that the
common law rules concerning conflict of interest infuse the fair trial interests protected by ss.
11(b) and 7 of the Charter.

[276] Alcantara argues that there are two aspects to the evidence on the issue of the conflicts
involving Mr. Chadi: (1) the conflicts that arise as a result of his representation of Berube and
Marche are so apparent they leap off the page; and (2) the overall history of the various
interrelated proceedings demonstrates a context of systemic conflicts. He contends that the
Crown ought to have brought both of these conflicts to the attention of the Court and its failure to
do so ought to be given weight in the overall assessment of reasonableness of the delay in the
balancing process.

[277] Caines maintains that the delay between September 5, 2008 and October 24, 2008 is
attributable to the Crown alone, based on its failure to remove Mr. Chadi earlier on in the
proceedings, particularly given that the issue was raised by Anderson P.C.J. during a case
management meeting on March 5, 2008.

[278] Caines points out that, as early as November 2005, when Marche and Weiss were charged
with possession of cocaine for the purpose of trafficking, Corporal Anderson of the RCMP knew
that Marche and Caines were at least acquainted.

[279] Caines argues that the Crown knew, even prior to his arrest on December 5, 2006, that
Mr. Chadi had represented many of the individuals involved in this prosecution as accused,
unindicted co-conspirators or potential Crown witnesses, but did nothing to disqualify Mr. Chadi
from acting for anyone in this matter.

[280] He asserts that, because of this conflict, the Crown should have brought an application to
disqualify Chadi & Co. years ago, citing in support of his argument R. v. Edkins, 2002 NWTSC
 Page: 64

9; R. v. Baltovich (2003), 170 O.A.C. 327 (C.A.); and R. v. Shambray, 2005 MBQB 1, [2005] 6
W.W.R. 386.

[281] Caines submits that the Crown should have raised the conflict at the earliest practicable
stage (R. v. Brissett (2005), 74 O.R. (3d) 248 (S.C.J.)). He cites Brissett at para. 23 for the
proposition that: “[w]hen the prosecution has notice of sufficient facts to found the application,
the disqualification motion should be brought on notice ‘well before the start of the trial.’”

[282] Caines points to certain pivotal dates in arguing that the Crown should have been astute
to the egregious extent of the conflicts in which Mr. Chadi had placed himself. Caines says that
by December 20, 2005, when the charges against Marche were stayed, it was clear to the Crown
that Marche would be an important witness in the Koker A prosecution. Marche gave a sworn
statement to the police on February 23, 2006. Caines submits that at least by February 26, 2007,
when Mr. Chadi became his counsel of record and counsel for Knapczyk in the Koker A
prosecution, Mr. Chadi’s conflicts involved: two accused, Caines and Knapczyk, charged with
conspiracy; his former client Marche, who is a Crown witness; and his former clients McDonald,
Cardinal, Gregoire, Flight, John Caines and Hoskins, all of whom are unindicted co-conspirators
in Koker A.

[283] Caines notes that disclosure was provided commencing December 4, 2006 and the
disclosure hard drive was provided to his counsel on June 1, 2007, including the Report to
Crown Counsel from the police, a document that is 285 pages in length [I note that the Slavin
affidavit suggests the Report was provided to all counsel on January 26, 2007]. In the Report, the
different threads in the case were tied back to Caines and demonstrated the alleged associations
between Caines, the indicted and unindicted co-conspirators, and the witness Marche. The
Report to Crown Counsel referred to the anticipated role of Marche as a Crown witness.

[284] Caines argues that the Certificates of Independent Legal Advice and Consents signed by
himself and Knapczyk on November 22, 2007 concerning Mr. Chadi’s representation of the two
of them were ineffective as the Certificates did not advert to the conflict respecting Marche and
certain unindicted co-conspirators [I note that Mr. Chadi apparently advised Anderson P.C.J.
before June 14, 2007 that he had agreed to be counsel of record for John Norman Caines, Flight,
Caines and Knapczyk and had the consent of each to act for them and the others].

[285] Caines points to the March 4, 2008 case management meeting, during which Anderson
P.C.J. raised the problem of Mr. Chadi’s conflict in representing Caines and Knapczyk. During
the continuation the following day, the Crown said he did not foresee a conflict given they would
be of like mind in their defence and the waivers covered off the potential conflict. Mr. Chadi
acknowledged Judge Anderson’s experience, and said that “... you have my undertaking that
every precaution in this regard will be undertaken so that this matter can move forward.”

[286] Caines argues that the procedure employed of having independent counsel cross-examine
Marche at the Koker A preliminary inquiry before Philp P.C.J. on April 7, 2008 did not meet the
 Page: 65

procedural requirements contemplated by the Dix procedure, and could not cleanse the taint of
conflict.

[287] The Indictment was filed in Koker A on August 22, 2008. The matter was put on the
Court of Queen’s Bench arraignment list for September 5, 2008. Caines refers to the inquiry
initiated by the Court on that date about whether Mr. Chadi was in a conflict of interest position.
Ms. Karout, for Mr. Chadi, said that Mr. Chadi was involved in resolution discussions pertaining
to Caines, but should there be no resolution, “of course, Mr. Chadi would have to get off the
record for one of the two...if not both... .” Counsel for Alcantara observed two conflicts - one
between Caines and Knapczyk, and the other because Mr. Chadi was counsel for a major Crown
witness (Marche). Sanderman J. agreed with counsel’s observations concerning the two conflicts.

[288] Finally, Caines argues that the extent of the conflict is further shown by the need for Mr.
Chadi to withdraw from the Koker C proceedings in which he was representing Hoskins at the
commencement of the Koker C preliminary hearing in Calgary on September 15, 2008. Mr.
Chadi advised the Court at that time that he was in an “untenable position” as a result of a
conflict and could not continue to act for Hoskins. Counsel for King advised the Court that Mr.
Chadi had previously been counsel for Marche and Weiss, Crown witnesses, and was then
counsel for Caines, an unindicted co-conspirator in Koker C. He also raised the concern that
Marche’s statement to Corporal Anderson implicated (no doubt, he said, it was completely
unwarranted) Mr. Chadi in the conspiracy. The Court granted Mr. Chadi’s application for leave
to withdraw.

[289] The Crown contends that the time period from August 29, 2008 to June 9, 2009 is
attributable to actions of Alcantara and should weigh against him as he and his counsel were
unavailable to proceed to trial on Koker A during that period.

[290] The Crown asserts that this time period should be attributed to “other reasons for delay”
as against Knapczyk and Caines as the delay was caused by Alcantara and there were valid
reasons not to sever the charges against Knapczyk and Caines from those against Alcantara.

[291] In terms of the conflict of interest issue, the Crown does not dispute that a conflict of
interest with Mr. Chadi was highlighted and resolved between August 29, 2008 and October 24,
2008 by Caines and Knapczyk obtaining new counsel. It submits the conflict of interest did not
contribute to any additional delay given it was impractical to schedule the trial on Koker A
during that time period due to the actions of Alcantara.

[292] Further, the Crown says that Knapczyk and Caines likely were not available to proceed to
trial in this time period due to their own actions. Prior to the preliminary inquiry, they were made
aware of a potential conflict of interest with their counsel, Mr. Chadi. Nevertheless, they chose to
proceed with Mr. Chadi as their counsel until Mr. Chadi removed himself as counsel on
September 26, 2008. On October 24, 2008, Mr. Lazin officially went on the record as counsel for
 Page: 66

Caines. Knapczyk appeared with his current counsel, although Mr. Juneja had not yet been fully
retained. A trial date was scheduled in anticipation that Mr. Juneja would be retained in due
course, as he was on November 28, 2008. The Crown suggests that, realistically, Mr. Lazin and
Mr. Juneja would not have been available to commence the Koker A trial prior to February 2,
2009.

[293] The Crown argues there is no proof that Mr. Chadi’s withdrawal resulted in actual delay
in the setting of the trial dates.

(e) Comments on previous representation of witness and the

conflict issue

[294] The Court has the inherent jurisdiction, stemming from the role of lawyers as officers of
the Court, to control the conduct of counsel in legal proceedings in the public interest. Their
conduct in legal proceedings may affect the administration of justice and is subject to this
supervisory jurisdiction (MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 at para. 18). Even
where there is no motion for disqualification before the Court, the Court has the inherent
jurisdiction to require counsel to withdraw from proceedings (R. v. Dix, 1998 ABQB 92 at para.
33, 218 A.R. 18).

[295] The court in MacDonald Estate at para. 13 identified three competing interests: (1) the
concern to maintain the high standards of the legal profession and the integrity of our system of
justice; (2) the countervailing value that the litigant should not be deprived of his or her choice of
counsel without good cause; and (3) the desirability of permitting reasonable mobility in the legal
profession. The court at para. 45 set out two questions that typically must be answered in
determining whether there is a disqualifying conflict of interest: “(1) Did the lawyer receive
confidential information attributable to a solicitor and client relationship relevant to the matter at
hand? (2) Is there a risk that it will be used to the prejudice of the client?”

[296] Where a previous relationship existed which is sufficiently related to the retainer from
which it is sought to remove the solicitor, the Court should infer that confidential information
was imparted unless the solicitor satisfies the Court that no information was imparted that could
be relevant (MacDonald Estate at para. 46).

[297] The retainer in question here is the representation by Mr. Chadi of Caines and Knapczyk.
The Court can infer that confidential information was imparted to Mr. Chadi by Marche, as well
as by the others Mr. Chadi represented in individual but related proceedings and who are now
unindicted co-conspirators in the Koker A prosecution.

[298] In MacDonald Estate at para. 47, the second question posed is whether the confidential
information will be misused:
 Page: 67

... A lawyer who has relevant confidential information cannot act against his client
or former client. In such a case the disqualification is automatic. No assurances or
undertakings not to use the information will avail. The lawyer cannot
compartmentalize his or her mind so as to screen out what has been gleaned from
the client and what was acquired elsewhere. Furthermore, there would be a danger
that the lawyer would avoid use of information acquired legitimately because it
might be perceived to have come from the client. This would prevent the lawyer
from adequately representing the new client. Moreover, the former client would
feel at a disadvantage. Questions put in cross-examination about personal matters,
for example, would create the uneasy feeling that they had their genesis in the
previous relationship.

[299] In my view, these observations apply in respect of Mr. Chadi being in an adverse
relationship to and having to cross-examine his former client, Marche.

[300] In Brissett, Hill J. wrote at para. 45:

An attack on the credibility of the former client witness, or the real potential for
such confrontation, in the context of counsel having had access to relevant
confidential information in the prior retainer, squarely raises conflict of interest
with counsel in an adversarial stance to his former client: R. v. York, supra at
pages 3-4; R. v. Edkins, supra at para. 11. Indeed, it has been suggested that the
witness may be in a position to assert "countervailing constitutional rights":
Proulx and Layton, Ethics and Canadian Criminal Law, supra at 292-3. Can it be
shown that "a reasonably informed person would be satisfied that no use of
confidential information" would occur? (R. v. Parsons, supra at page 5).

[301] In R. v. Con-Drain Co.(1983), 2008 ONCJ 114, the court dealt with an application by the
Crown to remove counsel who had represented both the corporate and individual defendants in
proceedings under the Occupational Health and Safety Act. The Crown alleged conflict of
interest as charges were stayed against the individual defendant and he became a Crown witness.
The motion requesting counsel’s removal was granted because of the risk that relevant
confidential information would be used to the prejudice of the former individual defendant and
because counsel would have a right to cross-examine him as a Crown witness. The court
expressed the concern that even if lawyer/client confidences were not misused in
cross-examination, the witness might be prone to his former lawyer's suggestions due to fear of
misuse or due to trust arising from their lawyer/client relationship (at para. 33).

[302] The Crown argues that the conflict presented by Mr. Chadi’s prior representation of
Marche was resolved at the preliminary inquiry by using the Dix procedure.

[303] The Dix procedure takes its name from the decision of Veit J. in Dix. In that case,
Mr. Dix was faced with two counts of first degree murder. Late disclosure revealed that a
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jailhouse informant was to provide crucial evidence against Mr. Dix. Counsel for Mr. Dix had
represented the informant some six years prior on a parole violation, and his partners had acted
for the informant about four years prior. On the Crown’s application to have the court require
that counsel for Mr. Dix withdraw from the case, Veit J. considered the guidelines established by
the Supreme Court of Canada in Macdonald Estate for determining whether a lawyer should be
disqualified from acting because of conflict of interest.

[304] Veit J. found that defence counsel’s situation was not like that of counsel in MacDonald
Estate. The lawyer in MacDonald Estate had moved to another firm that was acting against the
former client and in the same lawsuit, whereas in Dix the case before the court was unrelated to
the case in which defence counsel had represented the former client.

[305] Veit J. denied the Crown’s application and instead accepted the defence proposal that
independent counsel cross-examine the informant. In addition, she directed 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 informant.
Specifically, she accepted defence counsel’s undertaking that he and his associates would not
pass on any privileged or confidential information relating to the informant to the independent
counsel conducting the cross-examination. She required defence counsel and his associates who
had represented the informant in the past to file affidavits in which each of them swore to the
facts relating to their treatment of information concerning the informant. Defence counsel was
directed to give written instructions to everyone in his firm that the firm’s files relating to the
informant would remain sealed and was to tell all employees of the office that disciplinary action
would ensue if there was a breach of that direction. Finally, the court ordered that the
independent lawyer hired to cross-examine the informant would receive full crown disclosure
relating to the informant from the Crown directly and not from defence counsel or his associates.
In this way, the confidentiality of the informant’s previous relationship with counsel for Dix was
maintained but at the same time Dix was assured his right to counsel and entitlement to a speedy
fair trial.

[306] 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.

[307] Mr. Chadi represented Marche with respect to charges of cocaine trafficking in Fort
McMurray laid on or about November 24, 2005. In the Koker A prosecution, Marche is said to
have been trafficking in the Caines organization and his activities are said to have given rise to
Count #8 against Caines in the Information before the Court at the preliminary inquiry and in the
Indictment before this Court. Marche testified at the preliminary and is expected to testify at trial.
 Page: 69

[308] There were no consents or certificates of independent advice in respect of the 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.

[309] 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.

[310] I note that Caines and Knapczyk do not raise the Marche conflict issue for any purpose
other than in relation to the delay occasioned by the change of counsel for Knapczyk. Whatever
may have been the consequences at the preliminary hearing, in the proceedings before me,
counsel collectively have been diligent in their representations and, as the record will show, to
date no stone has been left unturned.

(f) Comments on unindicted co-conspirators and the conflict

issue

[311] In Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001) at p. 307, Michael
Proulx and David Layton emphasize that the duty of loyalty to a former client is not limited to
parties who are charged on the information and can extend to unindicted co-conspirators.

[312] What of the potential conflict between Mr. Chadi’s representation of Caines and
Knapczyk and his prior or concurrent representation of other alleged unindicted co-conspirators?
If they were called as witnesses for the Crown or the Defence, there would be a conflict on the
same basis as there was arising from Mr. Chadi’s past relationship to the witness Marche. This is
a potential conflict but was there also an actual conflict?

[313] While I do not need to decide this point, counsel have tendered extensive evidence and
argument to demonstrate that Mr. Chadi’s representation of unindicted co-conspirators also led to
his being in conflict in the Koker A proceedings. When Mr. Chadi undertook the representation
of Caines and Knapczyk, he had represented or was representing McDonald, Cardinal, Gregoire,
Flight, John Caines and Hoskins in relation to their independent charges arising from events that
are alleged to form part of the conspiracy count. In the Koker A prosecution, it is alleged that the
drugs that were found in the possession of the co-conspirators belonged to Caines.
 Page: 70

[314] As noted in McDonald Estate, at para. 46, where a previous relationship existed that is
sufficiently related to the one in issue, the Court should infer that relevant confidential
information was imparted in the first retainer. It can be assumed that Mr. Chadi received
confidential information relevant to the Koker A prosecution during his representations of certain
of the alleged unindicted co-conspirators. Were the interests of the alleged co-conspirators inter
se congruent? Were their interests congruent with or in conflict with those of Caines and
Knapczyk? Whose interests are paramount? Are the interests of some sacrificed to the interests
of others? Is the alleged criminal organization or conspiracy a hierarchical one? These are
obvious questions that arise in this situation.

[315] The facts in this case are complex and the actions of the alleged conspirators and
unindicted co-conspirators are inextricably interwoven because the facts relating to the charges
faced by McDonald, Marche, Gregoire, Cardinal, Flight, John Caines and Hoskins are alleged to
form part of the charges faced by Caines in the Koker A prosecution before the Court. In a
situation such as this, where one counsel represents certain of the alleged conspirators and has, or
does represent certain alleged unindicted co-conspirators, there are at least two broad bases of
conflict relating to the unindicted co-conspirators which must be examined.

[316] First, there is the potential that the unindicted co-conspirators may become witnesses, as
is the case with the witness Marche.

[317] Second, there is the duty of loyalty owed to the other clients or former clients. In the
situation of multiple concurrent and successive representations in which Mr. Chadi placed
himself, there existed the problem that Mr. Chadi would bring knowledge that he obtained in his
representation of the alleged unindicted co-conspirators in the individual prosecutions involving
them to his representation of Caines and Knapczyk. Use of information from former or current
clients would have been a breach of Mr. Chadi’s oath of confidentiality to those clients, unless
informed consents were given based on full disclosure. As the Court in McDonald Estate noted
at para. 47, the “... lawyer cannot compartmentalize his or her mind so as to screen out what has
been gleaned from the client and what was acquired elsewhere.”

[318] Some of the problems presented by multiple concurrent and successive representations in
conspiracy cases are illustrated in the Koker and related prosecutions in which Mr. Chadi
withdrew as counsel due to conflict either at or after the preliminary hearing, including: Koker A;
the Flight and John Caines matter; and Koker C.

The Flight and John Caines Conflict

[319] Mr. Chadi went on the record for Flight and John Caines on December 1, 2006.

[320] On June 14, 2007, Anderson P.C.J. wrote to Crown and Defence counsel confirming each
of their retainers. He referred to Mr. Chadi as counsel for Caines, Knapczyk, Flight and John
Caines. He wrote: “ Mr. Chadi has advised the Court that he has satisfied himself he is not acting
 Page: 71

in a conflict of interest and has the consent of each of his four clients to act for the other”
(emphasis added).

[321] On November 13, 2007, Anderson J. was conducting a case management meeting in the
matters of Koker A, Koker B, and the case of R. v. John Caines and Charles Weston Flight. He
confirmed that Mr. Chadi was representing Caines, as well as John Caines and Flight, whose
preliminary inquiry was scheduled for March 3 - 14, 2008. Three months previously, Mr. Chadi
had committed to file consents regarding the multiple representations, but had not yet done so.
He agreed to do so respecting the representation of the two Caines, Knapczyk, and Flight by the
following week. On March 4th, Anderson J. held a pre-preliminary conference in the Koker A
matter, scheduled to commence April 7th. He stated that the preliminary in the Flight and John
Caines matter was to commence Monday, March 3rd, but was put over for a week to sort out a
conflict, and the matter might or might not be able to proceed. Anderson J. observed:

THE COURT: That is right. However, they will have to have him here tomorrow
at 1:30. Okay. Here is what brought us here, as I mentioned, an issue of conflict
arose about a week and a half ago in a preliminary inquiry for a different Mr.
Caines -- I assume they are related. I do not know -- and a Mr. Flight, who are
jointly charged with a conspiracy and some other charges, I believe. That
preliminary inquiry was scheduled to commence on Monday of this week, and that
commencement date has been put over a week while the issue of conflict is sorted
out. The -— and it may or may not be able to proceed. It punctuated, however, the
fact that if a conflict rears its head in actuality in proceedings, particularly at the
eleventh hour, it can cause cases to go sideways very quickly, and that is
particularly of concern where accused persons are in custody and particularly
where the accused persons in custody are not the person to whom the conflict
relates, and for that reason, I wanted to address as quickly as possible most
specifically any question of conflict that could exist in this prosecution because
Mr. Chadi acts for --

[322] On March 5th, at a continuation of that pre-preliminary conference in Koker A, Mr.

Chadi stated that:

When we deal with the matters, and quite frankly I never envisioned that it could
happen even in Flight and in Caines, but it did and obviously we're extremely
careful in how we assess this second matter...

[323] Ultimately, on March 31st, 2007, Mr. Chadi withdrew from representation of John Caines
due to conflict. Flight, unrepresented, entered pleas on April 1, 2008.

[324] Mr. Chadi was on the record for both Caines and Knapzcyk in Koker A by February 26,
2007 (and appears to have been acting for them well before that date). Part of the Crown
disclosure in Koker A included the theory that John Caines and Flight were working in the
 Page: 72

Caines organization. It is alleged that Flight worked in the conspiracy, gathering funds, as well as
transporting and delivering cocaine, and that John Caines worked with him, in the gathering and
accounting of money from people in the Jeffrey Caines' network. Flight is an unindicted
co-conspirator in the Koker A prosecution.

[325] Anderson P.C.J. wrote that Mr. Chadi had advised he had the consent to represent Flight,
John Caines, Caines and Knapczyk. No signed consents to that effect were put in evidence in this
case. Assuming that informed consents were in place, a conflict still arose resulting in the
eventual withdrawal by Mr. Chadi from representation of Flight and John Caines.

The Hoskins Conflict in Koker C

[326] The next conflict that arose was in the Hoskins matter, in the Koker C prosecution.

[327] The information, laid November 24, 2006, included allegations that Ricco King, Melissa
King, Hoskins and others conspired with Caines, Marche and persons unknown to traffic in
cocaine. Mr. James, counsel for the Kings, wrote to the Crown querying why the Crown had not
objected to Mr. Chadi acting for Hoskins, given his prior representation of Crown witnesses
Marche and Weiss. At the preliminary inquiry on September 15, 2008, Mr. Chadi applied to
withdraw. He indicated that the spectre of Caines being called by the Defense put him in an
untenable position. On September 17, 2008, Mr. Chadi’s application to withdraw was granted.

[328] The problem of conflict presented by multiple concurrent and successive representation in
conspiracy cases goes beyond the witness issue as in the Marche example, and the co-accused
issue, as in the Caines and Knapczyk example. It extends to the issues that arise between alleged
conspirators and alleged unindicted co-conspirators. It is a question of multiple loyalties arising
incident to the various solicitor-client relationships. Absent consent to release confidentiality by
those concerned, the confidentiality of the relationship must be maintained.

[329] In R. v. Neil, [2002] 3 S.C.R. 631 at para. 19, the court identified the following aspects of
the duty of loyalty owed by a lawyer to his or her client: (1) the duty of confidentiality; (2) the
duty to avoid conflicting interests; (3) the duty of commitment to the client's cause from the time
of retainer, “i.e. ensuring that a divided loyalty does not cause the lawyer to ‘soft peddle’ his or
her defence of a client out of concern for another client;” and (4) the duty of candour with the
client on matters relevant to the retainer. At para. 27, Binnie J. discussed the British case of
Bolkiah v. KPMG, [1999] 2 A.C. 222 (H.L.):

More recently in England, in a case dealing with the duties of accountants, the
House of Lords observed that "[t]he duties of an accountant cannot be greater than
those of a solicitor, and may be less" (p. 234) and went on to compare the duty
owed by accountants to former clients (where the concern is largely with
confidential information) and the duty owed to current clients (where the duty of
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loyalty prevails irrespective of whether or not there is a risk of disclosure of

confidential information). Lord Millett stated, at pp. 234-35:

My Lords, I would affirm [possession of confidential information] as the

basis of the court's jurisdiction to intervene on behalf of a former client. It
is otherwise where the court's intervention is sought by an existing client,
for a fiduciary cannot act at the same time both for and against the same
client, and his firm is in no better position. A man cannot without the
consent of both clients act for one client while his partner is acting for
another in the opposite interest. His disqualification has nothing to do with
the confidentiality of client information. It is based on the inescapable
conflict of interest which is inherent in the situation. [Emphasis added in
Neil.]

[330] The narrow question of whether there is impermissible conflict in a situation of

successive representations in related matters where there is not necessarily adversity in the
present and former clients’ interests is squarely dealt with in the Bolkiah case at pp. 2-3:

Where the court’s intervention is sought by a former client, however, the position
is entirely different. The Court’s jurisdiction cannot be based on any conflict of
interest, real or perceived, for there is none. The fiduciary relationship which
subsists between solicitor and client comes to an end with the termination of the
retainer. Thereafter the solicitor has no obligation to defend and advance the
interests of his former client. The only duty to the former client which survives the
termination is a continuing duty to preserve the confidentiality of information
imparted during its subsistence. [Emphasis added.]

[331] The court in Bolkiah confirmed that it is the solicitor’s duty to preserve the
confidentiality of former clients, and that the court should intervene unless there is no risk of
disclosure (at p. 3). The court indicated that the lawyer’s duty to the former client is not to make
any use of the confidential information, without the consent of the former client, other than for
his benefit. The former client is entitled to prevent his former lawyer from exposing him to any
avoidable risk, including the increased risk of use of the information to his prejudice arising from
the former lawyer’s acceptance of instructions to act for another client with an adverse interest in
a matter to which the information is or may be relevant. The court noted that the English test for
disqualification set out in Rakusen's case, [1912] 1 Ch. 831, has been replaced in Canada by the
two rebuttable presumptions set out in MacDonald Estate: (1) that confidential information will
have been communicated by the former client in the course of the retainer and (2) that lawyers
who work together share confidences. The court went on to state:

It is in any case difficult to discern any justification in principle for a rule which
exposes a former client without his consent to any avoidable risk, however slight,
that information which he has imparted in confidence in the course of a fiduciary
 Page: 74

relationship may come into the possession of a third party and be used to his
disadvantage. Where in addition the information in question is not only
confidential but also privileged, the case for a strict approach is unanswerable.
Anything less fails to give effect to the policy on which legal professional
privilege is based. It is of overriding importance for the proper administration of
justice that a client should be able to have complete confidence that what he tells
his lawyer will remain secret. This is a matter of perception as well as substance.
It is of the highest importance to the administration of justice that a solicitor or
other person in possession of confidential and privileged information should not
act in any way that might appear to put that information at risk of coming into the
hands of someone with an adverse interest.

Many different tests have been proposed in the authorities. These include the
avoidance of "an appreciable risk" or "an acceptable risk." I regard such
expressions as unhelpful: the former because it is ambiguous, the latter because it
is uninformative. I prefer simply to say that the court should intervene unless it is
satisfied that there is no risk of disclosure. It goes without saying that the risk
must be a real one, and not merely fanciful or theoretical. But it need not be
substantial. This is in effect the test formulated by Lightman J. in Re a Firm of
Solicitors [1997] Ch. 1, at p. 9 (possibly derived from the judgment of
Drummond J. in Carindale Country Club Estate Pty. Ltd. v. Astill (1993) 115
A.L.R. 112) and adopted by Pumfrey J. in the present case.

[332] While it is unnecessary for disposition of the issues before me to deal with the conflicts
issue beyond that of Marche, the Defence led extensive evidence to show that when Mr. Chadi
ultimately withdrew from his representation of Caines and Knapzcyk, he was in the midst of
multiple conflicts of which the Crown was aware, given its role of prosecuting all but the
Gregoire matter, which was a provincial prosecution. As there is a public policy issue raised on
facts in this case that rather dramatically illustrate the problem of conflict in conspiracy cases, I
have taken the opportunity to discuss the conflicts issue in some depth. A more detailed analysis
of the McDonald, Gregoire, Cardinal, and Berube matters is unnecessary.

[333] Counsel are correct that it is necessary for both the Defence and the Crown to carefully
consider the complexities presented by multiple concurrent and successive representations in
conspiracy cases, in the interests of avoiding delay and adjournments, but also to protect and
advance the principled goals of conflict management as set out in MacDonald Estate: (1) the
value of maintaining the high standards of the legal profession and the integrity of our system of
justice; (2) the countervailing value that the litigant should not be deprived of his or her choice of
counsel without good cause; and (3) the desirability of permitting reasonable flexibility within
the legal profession. The submissions of counsel that the common law rules against conflict of
interest infuse the fair trial protections in s. 7 and 11(b) of the Charter is compelling. A fair trial
requires that counsel be without conflict.
 Page: 75

(g) Comments on co-accused conflict issue

[334] Representing co-accused in a criminal trial does not necessarily give rise to a conflict that
requires recusal or removal of counsel.

[335] In R. v. Graff (1993), 135 A.R. 235 (C.A.), the appellant and her daughter entered pleas
of guilty to conspiracy to murder. The appellant appealed on the basis that her sentence should be
vacated due to conflict of interest. The court held that the facts did not disclose a real or apparent
conflict between the two accused persons. As the Crown in this case argues, different levels of
culpability are not enough to demonstrate conflict; it must be shown that interests are at odds, so
that joint representation is not possible.

[336] The Supreme Court of Canada affirmed the finding in Graff in R. v. Neil, 2002 SCC 70,
[2002] 3 S.C.R. 631, in which Binnie J. wrote for a unanimous court at para. 39:

In R. v. Graff (1993), 80 C.C.C. (3d) 84, the Alberta Court of Appeal held that in
a post-conviction situation, if an accused is to challenge a conviction or sentence
on appeal, he or she must show more than a possibility of conflict of interest;
while actual prejudice need not be shown, the appellant must demonstrate the
conflict of interest and that the conflict adversely affected the lawyer's
performance on behalf of the appellant. See also Silvini, supra, at p. 551, per
Lacourcière J.A.; Widdifield, supra, at p. 173; R. v. Barbeau (1996), 110 C.C.C.
(3d) 69 (Que. C.A.), at p. 81, per Rothman J.A. It is not necessary for the accused
to demonstrate actual prejudice because "[t]he right to have the assistance of
counsel is too fundamental and absolute to allow courts to indulge in nice
calculations as to the amount of prejudice arising from its denial": Glasser v.
United States, 315 U.S. 60 (1942), at p. 76.

[337] In R. v. Widdifield, (1995), 25 O.R. (3d) 161 (C.A.), the court dismissed an appeal where
a couple alleged that their joint representation had led to an unfair jury verdict. Doherty J.A., for
the court, found no evidence of a real or apparent conflict of interest, but commented at paras.
23-24 and 38:

... A lawyer can render effective assistance only when that lawyer gives the
accused's cause the undivided loyalty which is a prerequisite to proper legal
representation. Within the limits imposed by legal and ethical constraints, the
lawyer must champion the accused's cause without regard to counsel's personal
interests or the interests of anyone else... This duty of undivided loyalty not only
serves and protects the client, but is essential to the maintenance of the overall
integrity of the justice system...

While there can be no absolute bar against the joint representation of co-accused,
joint representation puts counsel's obligation of undivided loyalty to each client at
 Page: 76

risk... In attempting to serve two masters, counsel may do a disservice to the

interests of one or both. Counsel who undertake the joint representation of
co-accused assume the heavy burden of ensuring that they are not placed in a
position of representing interests which are or may be in conflict: Rules of
Professional Conduct of the Law Society of Upper Canada (1992), Rule 5. Where
counsel fails to perform that duty and undertakes the representation of interests
which do or may conflict, the court will order counsel removed from the record...

...

It is incumbent on an appellant to point to a specific instance or instances where

the appellant's interests and those of the co-accused diverged, requiring counsel to
choose between them... That is not to say that an appellant must demonstrate that
counsel consistently favoured the co-accused's interests. If, at any point in the
course of the joint retainer, counsel, when faced with conflicting interests, took a
course of action which adversely impacted on the effectiveness of counsel's
representation of the appellant, then the appellant has established the necessary
adverse effect.

[338] The court in Widdifield at para. 33 distinguished between the functions of a trial judge
and an appellate court when faced with a conflict of interest claim, stating that where the issue is
raised at trial, the court must be concerned with actual conflicts of interests and potential
conflicts that may develop as the trial unfolds. In deciding whether counsel should be allowed to
act for co-accused, the trial judge must speculate to a degree as to the issues which may arise in
the trial. The trial judge must proceed with caution. When there is any realistic risk of a conflict
of interests, the trial judge must direct that counsel not act for one or possibly either accused.

[339] According to the authors of Ethics and Canadian Criminal Law at p. 295, any conflict of
interest scenario that could reasonably occur at trial will be sufficient to require the removal of
counsel.

[340] In Alberta Union of Provincial Employees v. United Nurses of Alberta, Local 168, 2009
ABCA 33, 307 D.L,R. (4th) 44, the court commented at para. 30 that waivers and consents may
overcome many problems relating to conflicts of interests, but there are situations where consent
is simply ineffective as matters unfold in such a way that the lawyer, due to his or her fiduciary
duties or the passage of confidential information, cannot continue to act.

[341] In R. v. Robillard (1986), 14 O.A.C. 314, 28 C.C.C. (3d) 22 (Ont. C.A.), the court, on the
basis of public interest in the fairness of the trial, removed conflicted counsel despite a waiver
signed by a Crown witness who had been that counsel’s client.

[342] In R. v. Parsons, (1992), 100 Nfld. & P.E.I.R. 260,72 C.C.C. (3d) 137 ( C.A.), the court
declined to remove counsel in a murder case although that counsel had acted for the accused’s
 Page: 77

father in a matrimonial matter. The father had signed a waiver of solicitor-client privilege. The
waiver had been signed with full consent and no confidential information could be used by the
accused’s counsel at the trial.

[343] Waivers were signed in this case by both Caines and Knapczyk. The waivers do not deal
with the Marche conflict or the multiple concurrent and successive representation issues (except
it is said that each of John Caines, Flight, Caines and Knapczyk consented to the representation
of the others). It may be that this is a case contemplated by the Alberta Union of Provincial
Employees decision, where consent is simply ineffective or inadequate to the job of waiving the
multi-layered interests at stake.

[344] Both judges before whom this matter came in preliminary proceedings, very experienced
in criminal law matters, immediately expressed concern about whether Mr. Chadi was in a
conflict position by acting for both Caines and Knapczyk, on one occasion with knowledge of the
problem pertaining to the Marche conflict. It may be they were concerned because the charges
include conspiracy and the accused persons, presumed to carry out different roles in the alleged
conspiracy, may be at odds, or they may have been concerned because the Indictment alleges
membership in a criminal organization and the Crown’s theory alleges a hierarchical structure.

[345] These judicial inquiries are consistent with the view expressed in Ethics and Canadian
Criminal Law at p. 344, that: “...in some instances the judge may have a positive obligation to
inquire into the possibility of conflict, most especially where a single counsel appears for
multiple clients.”

[346] It is unnecessary for me to decide whether Mr. Chadi was in a position of conflict in
undertaking the representation of both Caines and Knapczyk. Mr. Chadi ultimately applied to
withdraw from the record due to conflict; the Crown would say that a conflict developed by the
end of the preliminary inquiry. However, it is apparent that the efforts to deal with the conflict in
representing Caines and Knapczyk at once fell short of the mark. As I have noted above, with
these facts before the Court, a propitious opportunity arose to consider the issues relative to
representation of co-accused in a complicated conspiracy case.

[347] Time passed while new counsel was retained. Account must be taken of that time if it
resulted in a delay in the prosecution of this matter.

(h) Responsibility for raising the conflict issue

[348] The next question is whether the responsibility to take steps to remove Mr. Chadi as
counsel fell to the Crown or whether Caines and Knapczyk bear the responsibility.

[349] The court in Con-Grain Co. at para. 20 expressed the view that there is an obligation on
the parties to raise the matter of conflict "at the earliest practicable stage," citing Neil at para. 38.
 Page: 78

It commented that when there are sufficient facts at hand, the disqualification motion should be
brought on notice before the start of the trial. According to the court at para. 21:

... The law requires both parties to be vigilant in avoiding conflict issues. It is not
only the duty of the Crown to raise potential conflicts of interest. There is also a
heavy onus on the defence to ensure that there is no conflict posed by joint
representation of co-accused: R. v. W.(W.) (1995), 100 C.C.C. (3d) 225 (Ont.
C.A.).

[350] In R. v. Atkinson, (1991) 5 O.R. (3d) 301, 68 C.C.C. (3d) 109 (C.A.), aff’d [1992] 3
S.C.R. 465, the court reviewed certain s. 11(b) determinations made at trial. The trial judge had
found that the Crown was responsible for raising a conflict issue as early as possible, attributing
the resulting delay to the Crown. The Court of Appeal found that the trial judge had erred in
attributing the delay to the Crown, given that defence counsel had known about the conflict for
the same period of time but had steadfastly denied the conflict while continuing to act.

[351] In R. v. Beauchamp, [2008] O.J. No. 5315 (S.C.J.) (QL), Smith J. ruled on certain
periods of delay, one of which was attributable to a hearing on conflicted counsel. In finding that
the delay was attributable either to an inherent time requirement or to the defence, Smith J.
concluded at para. 31 that the responsibility to avoid a conflict of interest rests with the lawyer
involved and, therefore, the delay was not attributable to the Crown. The delay was regarded as
neutral as against other accused persons and the Crown and allocated to the accused whose
counsel was in conflict.

[352] In R. v. Edkins, 2002 NWTSC 9, cited by counsel for Caines, the issue before Vertes J.
was whether counsel for the defendant should be removed for a conflict as he had acted for a
Crown witness in the past. However, Vertes J. was not determining whether delay was
attributable to the Crown. In concluding that defence counsel would have to be removed due to
the conflict, Vertes J. commented (at para. 7) that Crown counsel had a duty, as an officer of the
court, to raise the concern about a potential conflict of interest as soon as she became aware of it.

[353] R. v. Chang, [2005] O.T.C. 899 (S.C.J.) involved a s. 11(b) application for a stay of
proceedings related to delays caused in a gang trial with multiple defendants. Chang was being
tried with two co-accused who were using the same lawyer and the Crown had waited for a year
after the arrest to apply for the removal of defence counsel due to conflict. The Crown argued
that the delay was caused by the inaction of Chang’s co-accused. Keenan J. granted Chang a stay
of proceedings in view of the three year, nine month delay, concluding at para. 44:

There was more than the inherent time requirements of retaining and instructing
counsel after the charge has been laid in this case. There was an extraordinary
delay in resolving the status of counsel for Combden and DeFranco. There is no
explanation why the information about the potential conflict had not been given at
least orally to Mr. Sosna much earlier in the proceedings. ... There is no
 Page: 79

responsibility for that delay attributable to Mr. Chang or his counsel. The
responsibility rests with the Crown for failure to deal with the issue of conflict and
require prompt replacement of the defence counsel.

[354] R. v. Stewart (1999), 100 O.T.C. 194 (S.C.J.), aff’d (2001), 148 O.A.C. 234 (C.A.),
involved an appeal from a ruling on a s. 11(b) Charter application. Caputo J. noted that the
Crown had made two applications to remove successive defence counsel by reason of a conflict.
The issue was whether the applications were necessary, reasonable and meritorious. Caputo J.
agreed with the trial judge that the Crown had had good reason to believe there was a conflict of
interest in terms of the first lawyer and, therefore, that delay was considered inherent delay (at
para. 77). However, he found that the Crown should have known that the second application
would be unsuccessful on the basis of the first conflict finding. As a result, that period of delay
was attributable to the Crown (at para. 103).

[355] In R. v. Krisza, [2009] O.J. No. 2205 (S.C.J.) (QL), the Crown appealed a stay of
proceedings granted to the defence on the basis of a successful s. 11(b) application for delay. One
lawyer had represented all 11 defendants on charges relating to illegal hunting and animal
cruelty, and eventually withdrew due to conflict. The trial judge had determined that
responsibility for the resultant delay should be shared between the defence and the Crown.
Kruzick J., on appeal, found that the trial judge had reached a reasonable compromise by
splitting the difference between the two sides. The trial judge had found that the lawyer, when he
came on the file, was acting in good faith. Kruzick J. considered that the trial judge was
reasonable in finding that the prosecution had an obligation to act to have the lawyer removed
when that became apparent.

[356] A review of these authorities suggests the obligation to raise the conflict issue and press
for determination is a shared obligation. The authors of Ethics and Canadian Criminal Law take
that view (at pp. 297, 343 and 344):

Counsel must be wary of representing multiple accused, and should only do so

after extremely careful consideration of the conflict-of-interest issue. By the same
token, Crown counsel confronted with a case of multiple representation should
make it a practice to address conflict-of-interest concerns promptly, at least with
defence counsel if not with the court. Trial judges would also do well to make
formal inquiries whenever co-accused share a single counsel.

Defense counsel who have any real concern as to whether a disqualifying conflict
has arisen has a duty to alert the court. ... When a conflict problem arises during
the course of an ongoing trial, this duty requires that defense counsel inform the
court immediately.

Moreover, the Crown shares with all counsel the duty to raise conflict issues with
the court where necessary to maintain the integrity of the administration of justice.
 Page: 80

The Crown should act promptly in bringing the conflict matter to the court’s
attention. [R. v. Chen cited, (2001), 53 O.R. (3d) 264.]

In fact, in some instances the judge may have a positive obligation to inquire into
the possibility of a conflict, most especially where a single counsel appears for
multiple clients.” [Widdifield, Robillard, cited, and R. v. Henry, (1990), 61
C.C.C. (3d) 455, where the lawyer was allegedly involved in the offence.]

[357] The conflicts that arise where one counsel or firm carries out multiple concurrent and
successive representations in conspiracy cases may involve conflicts between accused and
witnesses, as in the Marche example; or conflicts between accused and unindicted co-
conspirators, as in the John Caines and Flight example; or conflicts between two co-accused on
the same information and Indictment, as in the Caines and Knapczyk example. There may be
actual conflicts in the sense of patent adversity of interests; or more subtle conflicts that arise by
virtue of the confidential information obtained in one representational capacity being used,
advertently or inadvertently, but without consent, in the conduct of concurrent or subsequent
retainers.

[358] It is logical to conclude that in conspiracy cases which are necessarily hierarchical in
nature (as this one is alleged to be), people have different roles and interests and that one lawyer
cannot represent many or all of them without risk of compromising the interests of some in
favour of those of others. The concern is that the interests of the powerful would trump those of
the least powerful. For example, in a set of complex interrelated cases, the cross-examination
could be conducted to the benefit of one client while to the detriment of another, and the latter is
none the wiser.

[359] Defence counsel’s strategies cannot be permitted to sabotage the interests of justice and
the individual fair trial interests of each accused person who finds him or herself in the criminal
justice system. Nor should convenient disposition of matters where one counsel undertakes
multiple representation influence the Crown with respect to its duties.

[360] Conflict management ensures the timely and orderly conduct of criminal proceedings. In
my view, it is necessary that these conflict issues be raised by both Crown and Defence, or by the
court, so as to avoid delay, but also to enhance the administration of justice and the truth seeking
purpose of trials. As counsel has argued, ultimately it is a question of trial fairness.

(i) Evidence of Carol Zelant

[361] Carol Zelant, the Criminal Trial Co-ordinator for the Court of Queen’s Bench in
Edmonton, gave evidence during the present voir dire. She testified that she is allowed to book
eight long trials (six days or more) per week. The usual time lag for long trials is less than three
months. For example, as of October 13, 2010, she could schedule a long trial for January 2011. In
May 2008, the earliest time for a long trial would have been December 1, 2008. According to
 Page: 81

Ms. Zelant, the time lag is the same for very long trials, defined as ones anticipated to last 25
days or more.

[362] The first appearance to set dates for Koker A was on October 24, 2008. The earliest that a
long trial or very long trial (25 days or longer) could have been scheduled at that time was
February 2, 2009. In November or December 2008, the earliest a long or very long trial could
have been scheduled was April 6, 2009. Ms. Zelant could not say why Koker A was scheduled in
October 2008 for November 2009.

(j) Decision on Stage 5

[363] On September 5, 2008, Mr. Chadi applied to be removed as counsel for Caines and
Knapczyk. It was not until October 24, 2008 that a tentative date for commencement of the trial
was scheduled for November 2, 2009. This date was confirmed on November 28, 2008, when
Mr. Juneja advised the Court that he had been retained by Knapczyk.

[364] There is no direct evidence that the delay in scheduling the trial caused by Mr. Chadi’s
application to withdraw as counsel due to conflict resulted in any actual delay in the proceedings.
All counsel estimated the trial in Koker A would take eight months to complete. When the
Applicants were first arraigned on August 29th, Alcantara already had scheduled his Koker B trial
to commence on February 2, 2009, which was less than six months away. As a result, there
would have been insufficient time to complete the Koker A trial prior to commencement of the
Koker B trial without requiring that it be split over a significant period of time. The evidentiary
portion of the Koker B trial continued to June 9, 2009, past the estimated end date of May 29,
2009. I agree with the Crown that, practically speaking, the trial in Koker A could not have been
scheduled to start before September 2009.

[365] However, I am prepared to infer, based on the evidence of Ms. Zelant that in 2008 a long
trial could be obtained within three to five months of arraignment, that the seven week delay in
scheduling the trial in the present matter pushed the trial date back by at least that amount and
did, in fact, constitute real delay.

[366] In terms of Caines and Knapczyk, the responsibility for this seven week delay is shared
by them and the Crown.

[367] 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.

[368] 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
 Page: 82

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.

[369] 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).

[370] 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.

[371] The Crown, however, shares this responsibility. The Crown was in possession of all of
the relevant facts involving Mr. Chadi’s multiple concurrent and successive representational
roles. Indeed, because the facts that underlay the charges against the unindicted co-conspirators
also will form part of the Crown’s case in the Koker prosecutions, I must conclude that the
Crown had full knowledge of the various representations undertaken by Mr. Chadi when he
became counsel of record in the various related matters (with the exception of Gregoire). These
matters should have been raised by the Crown for determination by a judge long before the
conflicts required Mr. Chadi to withdraw.

[372] In terms of Alcantara, the time period of September 6, 2008 to October 24, 2008 is
categorized as both “other reasons for delay” and Crown delay.

Stage 6: October 25, 2008 (day after trial date scheduled) to

November 10, 2009 (trial to commence)

(a) Events

[373] Pre-trial motions in Koker B were scheduled from February 2, 2009 to May 29, 2009 and
closing arguments in that case did not conclude until June 9, 2009.

[374] Pre-trial conferences occurred in both cases between November 28, 2008 and January 29,
2009.
 Page: 83

[375] On September 14, 2009, Caines entered guilty pleas to two counts in the Indictment
before Gill J.

[376] A pre-trial conference was held in Koker A on October 14, 2009.

[377] The case was adjourned by agreement of all counsel on October 14, 2009 for the
commencement of pre-trial motions on November 9, 2009, when it was further adjourned to
November 10, 2009.

(b) Arguments of the parties

[378] Alcantara and Caines submit this period of delay was due to the decision of the Crown to
proceed with Koker B first. It would have been impractical to schedule the trial in the present
matter immediately after that in Koker B due to the length of the anticipated trial and imminent
summer recess. They contend this one year delay should be attributed to the Crown.

[379] The Crown contends the period from February 2, 2009 to June 9, 2009 was due to actions
of Alcantara and should be attributed to “other reasons for delay” as concerns Knapczyk and
Caines.

[380] The Crown says the period from June 9, 2009, when the evidentiary portion of Koker B
finished, to November 2, 2009, when the Koker A trial commenced, is attributable to actions of
the Applicants. It says that, theoretically, the Applicants were available to proceed with the
Koker A trial after June 9, 2009, but Defence counsel’s schedule prevented the trial from
commencing prior to November 2, 2009, as reflected in Mr. Lazin’s comments of November 28,
2008 that: “... the dates [November 2, 2009 to June 30, 2010] that were originally set were the
earliest dates that were set given all counsel’s schedules.”

[381] The Crown points out that the trial dates were scheduled on October 24, 2008, which
means that as of that date, the earliest date to commence the trial that Defence counsel could
accommodate was November 2, 2009. As a result, the Koker A trial could not be brought
forward after the Koker B trial concluded due to Defence counsel’s unavailability.

(c) Decision on responsibility for delay

[382] Ms. Zelant testified that as of October 24, 2008, the earliest trial date that could be
obtained for a long trial was February 2, 2009. Accordingly, in my view, the period from October
25, 2008 to February 2, 2009 was one of institutional delay.

[383] As pre-trial motions in Koker B were scheduled from February 2, 2009 to May 29, 2009
and closing arguments in that case did not conclude until June 9, 2009, Alcantara was not
available for the trial of Koker A to proceed until after June 9, 2009. Given the anticipated length
 Page: 84

of the trial and the imminent summer recess at the end of June, the Koker A trial could not
reasonably be scheduled before September 2009.

[384] Alcantera was involved in Koker B and, therefore, not available until the trial in that
matter concluded on June 9, 2009. As in my decision on Stage 2, I consider the period from
February 3, 2009 to June 10, 2009 to be due to “other reasons for delay” as against all three
Accused.

[385] The trial could not be scheduled between June 10, 2009 and September 1, 2009 since the
summer recess intervened. This period of time is attributable to institutional delay.

[386] Due to counsels’ calenders, the first date in the fall of 2009 that the trial could proceed
was November 10, 2009. Having a trial date acceptable to all counsel’s calendars is a feature of
the system under which defence counsel and Crown counsel provide service to their clients in an
orderly fashion. It is not a question of fault; it is one of the inevitable exigencies of running a
case involving experienced counsel and several Accused, each of whom have their choice of
counsel.

[387] In R. v. Heikel (1992), 125 A.R. 298 (C.A.), an appeal of a stay of proceedings granted
based on a s. 11(b) breach, Fraser J.A. for the majority stated at p. 9:

Steps in the trial process cannot be doled out in 4 month bite-sized chunks of time
to suit defence counsel's schedule and then be treated as part of the overall delay
for the purpose of enhancing an accused's claim under s. 11(b).

In this case, there are three ways to regard the accommodation of defence
counsels' scheduling requirements. It may be treated as a case of waiver of any
intervening time periods. Or it can be regarded as falling within the category of
actions of the accused. Or it can be attributed to delays caused by "other reasons".
Neither of the first two bolsters the defendants' alleged breach of s. 11(b). And the
third should be taken into account in determining whether the delay has been
unreasonable.

[388] In Guilbride at para. 108, the British Columbia Court of Appeal held that the Crown is
not responsible for delay caused by defence counsel's calendar and that such delay should be
treated as neutral in the s. 11(b) calulation.

[389] In R. v. Port Chevrolet Oldsmobile Ltd., 2009 BCCA 357, 246 C.C.C. (3d) 355,
Chiasson J.A., who delivered the judgment of the court, indicated at paras. 85 and 86:

The appellants assert that this Court in R. v. Farewell, 2008 BCCA 9, 229 C.C.C.
(3d) 17, used the phrase "neutral delay" as a synonym for inherent delay. I do not
read the Court's comments as doing so. In para. 89 the Court stated that generally
 Page: 85

delay caused by a co-accused is neutral delay "which [does] not count against
either party in the s. 11(b) reasonableness assessment". To similar effect, in
Guilbride this Court described the time required to accommodate the scheduling
conflicts of defence counsel as neutral.

In my view, the phrase "neutral delay" refers to delay that is not attributable to the
Crown or the accused and is not systemic or inherent; it fits under the heading
"other reasons for delay" in the Morin list ... In my view, the judge did not err in
her use of the phrase in this case.

[390] None of the parties here argued that the period of time from September 2, 2009 to
November 10, 2009 was waived by the Defence. In my view, it should be regarded as “other
reasons for delay” in regard to all three Accused.

Stage 7: November 11, 2009 (day after trial to commence) to

September 26, 2010 (day before commencement of delay motion)

(a) Events

[391] The trial was scheduled to start on November 10, 2009 with pre-trial motions.

[392] Caines was severed from the Indictment and entered a guilty plea before Gill J. to two
counts in the Indictment.

[393] Alcantara and Knapczyk abandoned their Charter applications. Alcantara offered to plead
guilty to Count 1 in the Indictment in resolution of the case against him.

[394] Commencement of the trial was moved up to December 10, 2009. On that date, Alcantara
filed a Notice of Intention to Re-Elect. He was then arraigned, formally re-elected to be tried by
judge alone and entered a guilty plea to Count 1 (conspiracy to traffic in cocaine) in the
Indictment. The Court accepted Alcantara’s guilty plea and entered a conviction on Count 1. The
Crown began its case against both accused. It made an opening statement and called evidence.
The trial continued until December 17th and then was adjourned to January 20, 2010 due to the
Court calendar and unavailability of the trial judge.

[395] On January 20, 2010, the Defence advised the Court that on January 13, 2010 it had
received a letter from the Crown advising of new disclosure, which revealed that monitors of
intercepted communications used a "put-away" function to record and store telephone calls for
later review while the wire authorization required live monitoring of calls.

[396] On January 25, 2010, one witness was called by the Crown. As a result of the late
disclosure, the Defence asked for time to analyze their positions.
 Page: 86

[397] Caines withdrew his guilty pleas and re-joined this trial. The Defence brought a number
of consequential disclosure applications over the course of approximately five months. Alcantara
brought an application to vacate his guilty plea. Alcantara and Knapczyk brought pre-trial
motions as the late disclosure gave rise to standing and certain other arguments. The pre-trial
motions were scheduled for hearing and decision between September 1, 2010 and March 31,
2011. The trial is now scheduled to commence on April 11, 2011 and to conclude on June 16,
2011.

[398] The order of disclosure in this prosecution is set out in the Flavin affidavit. Disclosure
proceeded from November 24, 2006 through to provision of the hard drive containing
comprehensive (full) disclosure to Caines and Knapczyk on June 1, 2007 and to Alcantara on
August 27, 2007. It continued through 2008 and 2009. The trial commenced on November 10,
2009. As stated, on January 13, 2010, the Accused were notified about the Special I put-away
issue. The disclosure letter read:

The issue in question is that some calls that were required by the terms of the
authorization to be live-monitored were not continuously listened to by the
monitor throughout the call. Rather, the monitor initially listened to the call, but
sometime after confirmation was made that the target was a speaker, the monitor
stopped listening to the call; however, the call continued to be recorded and was
ultimately listened to in its duration at a later time. This was accomplished by the
monitor pressing the system’s “put away” button. Calls where this occurred will
be referred to in this letter as “set aside calls”.

At our request, the RCMP conducted an audit of all the calls intercepted in the
Project Koker investigation that were subject to the live monitoring requirement.
Pursuant to the request, the RCMP generated a “Session History Report” for each
of the lines that were subject to the live- monitoring provision ... . The reports are
organized by phone line and include all the calls intercepted where the monitor
stopped listening to the call before the telephone call ended.

...

I have enclosed, as disclosure, a disk containing the Session History Reports

referred to above.

...

To assist you in considering your position on this matter, I would point out that:

1. While we acknowledge that this “set aside” approach has been called into
question in litigation in Ontario, we do not accept that it is contrary to the
terms of the authorization. ...
 Page: 87

2. Even assuming for argument that this set aside approach was contrary to
the relevant wiretap orders under which this investigation was carried out,
and even making the worst possible assumption about the bona fides of the
police, we do not believe that the Issue has any realistic potential to result
in the exclusion of evidence ...

[399] A session history report is a log of all activity occurring on a particular session and any
subsequent activity. It can be generated into a report by running a program on the CenCIS II
system and requesting such a report.

[400] Alcantara’s application to vacate his guilty plea was dealt with between September 1,
2010 and September 24, 2010, when I rendered my decision on that application (2010 ABQB
616).

(b) Arguments of the Parties

[401] Caines and Alcantara argue that the time period of about eight months from January 20,
2009, the date the trial before this Court was adjourned, to September 27, 2010, the date when
the present application commenced, is a period of Crown delay that should be given even greater
weight in the overall assessment of reasonableness.

[402] The Crown submits that the 84 days from November 2, 2009 to January 25, 2010 are
attributable to inherent time requirements of the case as what occurred during that time period
were trial events.

[403] The Crown suggests that the time period from January 25, 2010 to September 1, 2010 is
rightly attributed to it, although it contends the Applicants should share responsibility for the
delay. It concedes the disclosure should have been completed prior to November 2, 2009. It
maintains that some of the further disclosure requested in relation to use of the put-away feature
is of questionable relevance.

[404] The Crown notes the Defence is required to exercise due diligence in seeking disclosure.
It asserts Defence counsel ought to have known the Crown inadvertently failed to disclose
information relating to whether the intercepted private communications were live monitored and
were required to notify the Crown of the missed disclosure. It maintains this shared responsibility
for the late disclosure significantly mitigates and reduces the weight attributable to the delay.

(c) Chronology of use of put away feature of CenCIS I and II

equipment at Special I, K Division, RCMP, Edmonton

2003 - 2008
 Page: 88

[405] Putting away live monitor calls due to a shortage of manpower had been a practice prior
to Project Koker, as indicated by Ms. Millar, who supervised the monitoring group from August
2005 to February 2006. According to Ms. Monikowski, an intelligence monitor in those years,
every monitor on every project requiring live monitoring from 2003 to June 2008 used the put
away feature as a regular tool to deal with staff shortages. Ms. Morrison, now senior electronic
technical support person with Special I in Edmonton, confirmed that the put away feature was
available commencing in 2003 with version 3.2 of CenCIS II (at present they are using version
3.8). During the Koker investigation, Special I went from version 3.2 to 3.4 of CenCIS II.

January 5, 2005

[406] Ms. Blair, then the Supervisor of the Monitoring and Transcribing Unit, sent a memo to
her staff stating that: "...[if] time permits, do not ‘put away’ calls that are identified as targets.
When you do ‘put away’ a target call, please go in and check periodically to ensure that it is still
our target on the line. If time permits, please listen to the live call periodically." According to Ms.
Hering, an intelligence monitor, the use of the put away feature became a topic of discussion in
Special I, Edmonton after that memo.

January 28, 2005

[407] At a meeting attended by Ms. Hering, Ms. Blair indicated that use of the put away feature
was preferred, next to listening to the live call, and how the monitors were to use it, as it was not
physically possible to listen live to all calls due to the volume.

April 2008

[408] About April 8, 2008, Sergeant Rodrigue, in charge of the Policy Center for Interception of
Communications with the RCMP in Ottawa, was alerted to the problem arising in an Ontario
court case as a result of a monitor having put away calls without first ensuring the named target
was on the line. Within Special I, there were differences of opinion with respect to whether use
of the put away function constituted adherence to the authorization.

June 3 and 4, 2008

[409] At the annual meeting of RCMP and other intelligence professionals from across Canada,
called the POWPM, Sergeant Rodrigue advised the Special I personnel to read their court orders
and ensure they could use the put away function and, if unsure, to talk with their affiant or Crown
counsel. Sergeant Gosselin and Ms. Millar, the monitor supervisor, attended the meeting from
Edmonton. They were advised to stop using the function on live monitored calls, a change in
policy that was implemented immediately. Ms. Millar's normal practice was to return and debrief
the staff on practices that were to be adopted. Monitors were told there was some legal concern
about whether use of the put away feature was in compliance with wiretap authorizations.
 Page: 89

June 19, 2008

[410] Sergeant Rodrigue took steps to determine the extent of the use of the put away feature.
She sent an e-mail to Sergeant Gosselin in Edmonton, as well as other managers of Special I
units across Canada, asking for a list of outstanding projects affected by the use of the put away
feature; whether monitors had put away calls without ensuring the targets were on the line; and
whether any of those projects were before the courts then or would be in the near future.

June 27, 2008

[411] Sergeant Rodrigue sent an e-mail to NCOs and intercept monitor supervisors across
Canada and management, requesting that intercept monitor supervisors and project room
coordinators review their judicial order and "...adhere precisely to the live monitoring clauses
ordered... ." If there were any doubts about how to handle the live monitoring clauses, they
should "...immediately contact their affiant or Crown assigned to the case." The e-mail also
directed that the affiant or Crown be made aware if they were still using the put away call
functionality. This was forwarded to Ms. Hering and other intelligence monitors in the Edmonton
office.

July 3, 2008

[412] Sergeant Rodrigue received a reply from Ms. Millar through Sergeant Gosselin: "We
have put away calls on every file with live lines since we got VB [voice box] in 2003." It
continued: "The following are the cases currently ‘active’ (i.e. in disclosure, awaiting court) that
could be affected:...E7..., Koker - Edmonton Drugs."

[413] Sergeant Rodrigue sent a further e-mail to Sergeant Gosselin asking whether he had had a
chance to talk about this with one of the Crown. She stated in the e-mail that she asked the
questions to make sure that Department of Justice would be involved. She could not recall if she
was advised by Sergeant Gosselin whether he had discussions about this with the Crown.

November 3, 2008

[414] Sergeant Rodrigue sent an e-mail to Ms. Millar referencing the e-mail from Lynn Fedor,
which was intended to ensure all officers in command, NCOs and intercept monitors were
adhering precisely to the live monitoring clauses. Also, in November, Ms. Morrison in technical
support became aware of the put away issue.

November 16, 2008

[415] Sergeant Rodrigue sent an e-mail to Special I NCOS, officers in command and RCMP
members who were wireroom supervisors requesting that intercept monitors review their specific
judicial orders and adhere precisely to live monitoring clauses. She wrote: "If you have any
 Page: 90

doubts on how to handle the ‘live Monitoring’ clauses related to each project, immediately
contact your Affiant or the Crown assigned to the project. Make sure they ‘fully’ understand how
the ‘put away’ functionality works."

[416] At that time, she was waiting for a court resolution of the issue. The e-mail was red
flagged “high priority.” Halifax was then using the specially drafted clause allowing use of the
function.

[417] Sergeant Rodrigue sent e-mail on November 16, 2008 to others, including Sergeant
Gosselin, stating that unless specifically authorized by the judge to continue recording a named
person on a live monitoring line when they were not listening to the call, the put away function
was not to be used.

January 2009

[418] Ms. Morrison believes she tested the system for a dual monitor capability at this time, as
her records indicate they had a case involving live monitor conditions.

January 5, 2010

[419] Assistant Commissioner Doug Lang issued an order to all the intercept monitor
supervisors (and possibly NCOs) not to use the put away function. Current RCMP policy is that
the authorization must permit the recording of live conversation without listening.

Later in 2010

[420] At some point in 2010, in the months leading up to Sergeant Gosselin's retirement,
Special I, Edmonton started reviewing all past cases to see if the put away feature had been used
on live monitored calls.

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

[421] From 2003 through 2008, the put away function was used at Special I in Edmonton to
park calls and record them, even though the authorization called for live monitoring. The Blair
memo of 2005 asked that the monitors check periodically to ensure the target was on the line.

[422] In April 2008, Sergeant Rodrigue of the Policy Center for Interception of
Communications became aware of legal concerns arising in an Ontario case from use of the put
away feature in the face of a live monitor clause in the wire authorization. She looked into the
problem and raised it at the national conference, the POWPM, in June 2008, where intelligence
personnel discussed it and resolved that the put away feature should not be used. Sergeant
Rodrigue sent e-mails across the country in June, July and November of 2008 emphasizing that
 Page: 91

authorizations be strictly observed and advising that the affiant or Crown be called if there was
doubt respecting the live monitor clause.

[423] Sergeant Gosselin, Ms. Millar (the monitor supervisor) and the monitors in Edmonton
Special I were aware from and after June 2008 that the put away function should not be used as
there was a concern its use would not be in compliance with live monitor clauses in wire
authorizations. On July 3, 2008, Ms. Millar responded to the Rodrigue inquiries, stating: “The
following are the cases currently ‘active’ (i.e. in disclosure, awaiting court) that could be
affected:...E7..., Koker-Edmonton Drugs.”

[424] I conclude that Edmonton Special I RCMP members knew about use of the put away
feature in Koker A at least by July 3, 2008. Allowing a reasonable time for the RCMP to consult
with the Crown and for the Crown to respond, I find that this information should have been
disclosed to the Defence by the end of August 2008.

[425] There is no evidence that the Public Prosecution Services of Canada (PPSC) in Edmonton
knew of the put away issue before December 2009, when Crown counsel in the prosecution of
Koker A were notified. Defence counsel were notified on January 13, 2010.

[426] However, the law is clear that a failure to disclose by the police is failure to disclose by
the Crown. In R. v. T. (L.A.) (1993), 14 O.R. (3d) 378 at para. 9 (C.A.), Lacourcière J.A stated
for the court that: “... the Crown has a duty to obtain from the police - and the police have a
corresponding duty to provide for the Crown - all relevant information and material concerning
the case.” In R. v. R.P.S., 2010 ABQB 418 at para. 35, Thomas J. wrote:

In addition to the content and the timing of disclosure, there is also the question of
who is required to disclose relevant information to the defence. Although the duty
is often attributed to the Crown only, the Supreme Court of Canada held in the R.
v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 (“McNeil”) case at para. 52 that the
police have a “corollary duty to disclose to the prosecuting Crown all material
pertaining to the investigation of an accused.” This duty arises from the unique
role of the police in investigating crime. Especially pertinent to this case is the
principle from McNeil that the Crown may not hide behind the fact that the police
failed to disclose information to the Crown. As the majority in McNeil held at
para. 24:

It is now widely acknowledged that the Crown cannot explain a failure to

disclose relevant material on the basis that the investigating police force
failed to disclose it to the Crown.

(e) The due diligence argument: the Applicants’

responsibility for late disclosure
 Page: 92

[427] As noted, the Crown suggests that the time period from January 25, 2010 to
September 10, 2010 (i.e. 227 days or roughly seven months and three weeks) is rightly attributed
to it, although it contends the Applicants should share responsibility for the delay. The Crown
argument is that Defence was aware the authorizations affecting Caines contained live monitor
provisions, and had counsel exercised due diligence they would have requested data showing
whether the lines had been live monitored.

[428] The Crown contends that the Defence was aware from the case law, including R. v.
Thompson, [1990] 2 S.C.R. 1111, that failure to observe monitor conditions in a wire
authorization may amount to a Charter breach and lead to exclusion of the evidence. In Project
Koker, authorization 1709 contained live monitor conditions. Ensuring compliance with wire
authorization conditions is a key to making full answer and defense. To test compliance, there
must be live monitor data, and counsel ought to have known to request it. The Installation
Reports were provided in disclosure by Ms. Morrison, containing information regarding
configuration of lines. The Intercept Monitoring Instructions refer to live monitoring. In the
Crown’s view, this information, cumulatively, should have triggered the request for the data.
There should have been an inquiry by the Defence into the reasonableness of the search that was
conducted. In short, the Crown argues that this is a situation where all parties missed the
disclosure.

[429] The Defence disputes that it failed to exercise due diligence. It entered a list of 18
Defence counsel who have been involved in the Koker A, B, and C prosecutions, including some
of the most senior defence counsel in Alberta, and many of whom are experienced in defending
accused persons in drug prosecutions involving wiretaps. Ms. Flavin confirmed that no Defence
counsel sought disclosure of the session history reports or other data that would demonstrate
observance of live monitor conditions in wire authorizations. Indeed, Crown counsel in this case
did not seek disclosure of the session history reports, although he too is well seasoned in these
matters.

[430] In January 2010, Ms. Morrison, the senior technical support person in Special I, provided
session history reports for disclosure to counsel on Koker A. Up until that time, her
understanding had been that such reports were intended as a technical aid, an internal verification
of data, rather than being a disclosure issue. It appears that she (and Special I) did not make the
connection between live monitor conditions and the discloseable nature of data tracking the
implementation of such conditions. She could not recall having had a conversation with anyone
involved in Project Koker between 2005 and 2009 advising that the CenSIS II system could
produce session history reports.

[431] Clearly, the Defence must be an active participant in the disclosure process and must
exercise due diligence in performing that role. As Cory J. stated in R. v. Dixon, [1998] 1 S.C.R.
244 at para. 37: “[w]hen counsel becomes or ought to become aware, from other relevant
material produced by the Crown, of a failure to disclose further material, counsel must not
remain passive. Rather, they must diligently pursue disclosure diligently.”
 Page: 93

[432] In my decision in a previous voir dire in this case (2010 ABQB 646), I reviewed (at paras.
23-34) arguments made by the Crown concerning Defence responsibility for requesting
disclosure of session history reports or data showing whether lines were in fact live monitored.
The Crown argued that the Dixon principle applies to knowledge that defence counsel has of
information in wiretap cases generally, and to specific knowledge that a particular counsel has
because of his or her role in a previous wiretap case. At paras. 30 and 34, I stated:

In my view, however, whether or not counsel knew or ought to have known to

request particular disclosure must be decided on the basis of counsel's knowledge
as proven by the Crown and not simply on the basis that defence counsel is
experienced in wiretap cases.

...

The Dixon case refers to circumstances where counsel becomes aware or ought to
become aware "from other relevant material produced by the Crown" or "on the
basis of other disclosures" that the Crown has failed to disclose further material.
In those circumstances, counsel is obliged to diligently pursue that disclosure. I
will assume for the purposes of this application, without deciding the issue, that
the Dixon principle also extends to knowledge that the defence has acquired other
than from the disclosure already provided in the case before the court or from his
knowledge of that case.

[433] The Crown established in that voir dire that in October of 2006, counsel for Mr.
Alcantara, in his role as defence counsel in Project Imminent, received disclosure of session
history reports identifying live monitoring data. However, I found (at para. 38) that those session
history reports did not reveal the use of the "put away" function in the face of a live monitor
condition. As a result, counsel for Mr. Alcantara was not shown to have had knowledge of the
put away feature. I concluded (at para. 39) that it had not been proved that counsel for Mr.
Alcantara ought to have known that he should request disclosure of the session history reports in
the context of this case. In fact, I noted that it had not been established that any counsel in this
case was aware of the use of the "put away" function until the late disclosure of that fact by the
R.C.M.P. in January 2010.

[434] For purposes of the present motion, the Edmonton Office of the PPSC does not allege
that it ever provided session history reports to Mr. Lazin on any file prior to January 14, 2010 or
to Mr. Juneja prior to January 13, 2010.

[435] I cannot find that Defence counsel in this case failed to exercise due diligence because
they did not request data which would show whether or not the live monitor clauses had been
observed.
 Page: 94

[436] First, as noted above, there was a large amount of disclosure in this case.

[437] Second, while the question of compliance with wire authorizations has been in play since
the Thompson case was decided in 1990, there is no evidence that the narrow refined technical
function of putting away calls was known to anyone other than Special I personnel until the issue
arose in a court case in Ontario in April of 2008. It was more than a year and one half later that
the Crown assigned to Koker A became aware of the use of the functionality.

[438] Third, I find that Ms. Morrison, as a technical support person, did not perceive the link
between live monitor conditions and the session history reports that track implementation of
those conditions. As a result, the data reports were not viewed as documents required to be
disclosed by Special I. Crown counsel did not seek data (session history reports) confirming there
was compliance with the live monitor conditions. Neither did any of the experienced counsel
who have appeared over time representing the accused in the three Koker prosecutions.

[439] I cannot find lack of due diligence on the part of Defence counsel in failing to request
data to confirm live monitoring occurred, since there is no evidence that they were aware of the
put way feature or that session history reports might reveal use of this feature.

(f) Decision on Stage 7

[440] I have determined that disclosure of use of the put away feature in Koker A should have
been made by the end of August 2008, after Special I Edmonton became aware of the issue and
had an opportunity to consult with PPSC in Edmonton about it.

[441] I infer from the fact that Caines sought to vacate his guilty plea and rejoin this trial,
Alcantara applied to vacate his guilty plea, and the Applicants all renewed their various Charter
notices once disclosure was made of use of the put away feature in Koker A, that had such
disclosure been made in a timely fashion, Caines would not have entered the guilty plea on two
counts in the Indictment, Alcantara and Knapczyk would not have abandoned their Charter
applications, Alcantara would not have re-elected to be tried by judge alone and he would not
have entered a guilty plea to Count 1in the Indictment. (Indeed, I ruled previously in the decision
permitting Alcantara to withdraw his guilty plea that these steps would not have been taken in the
first place.) Contrary to the Crown’s view that these were “trial” activities and that the time from
November 11, 2009 to December 10, 2009 should be counted as a period of inherent delay, I am
of the view that this period of delay is attributable to the Crown.

[442] The trial commenced on December 10, 2009 and continued through to December 17,
2009. One witness also testified on January 25, 2010. While it is possible that the witnesses
whose testimony was heard, or some of them, may have to be recalled in order to allow cross-
examination by Caines, he agreed in rejoining the trial to limit the need for that. Accordingly, I
am prepared to find that at least the period from December 11, 2009 to December 17, 2009 was
one of inherent delay.
 Page: 95

[443] On December 17th, the trial was adjourned to January 20th due to the Christmas break and
the Court’s unavailability. The time period December 18, 2009 to January 20, 2010 is one of
institutional delay and/or is attributable to “other reasons for delay.”

[444] On January 20, 2010, the Court was advised of the late disclosure of the use of the put
away feature. On January 25th, the Defence asked for time to consider its position. Over the next
five months, the Applicants brought a series of consequential disclosure applications that were
largely successful (although some were unopposed by the Crown in the interest of efficiency).
While the time taken by those applications can be considered inherent delay, if the Defence had
received timely disclosure from the Crown of use of the put away feature, those applications
likely would have been made from September 2008 through to the end of January 2009, during a
period of delay caused by the withdrawal of Mr. Chadi due to conflict and a period of
institutional delay, both of which I consider to be overriding causes of delay. These motions for
additional disclosure would have been brought in the ordinary course in criminal motions court.

[445] The application to vacate Alcantara’s guilty plea commenced September 1, 2010 and
resulted in a decision on September 24th (2010 ABQB 616).

[446] An issue about Mr. Juneja facing investigation by the Law Society of Alberta arose on
September 14th. Mr. Juneja was granted permission by the Law Society of Alberta to continue to
represent Knapczyk to the conclusion of the delay motion. I affirmed that conclusion by a
decision filed September 24, 2010 (2010 ABQB 612). Having received independent legal advice,
it was Mr. Knapczyk’s wish to have Mr. Juneja continue to represent him. As the records show, I
have no doubt that Mr. Knapczyk proceeded with Mr. Juneja with his eyes wide open. Mr. Juneja
participated in the trial, adopting the arguments of his co-counsel where appropriate, and
otherwise presenting evidence and arguments as suited his client’s interests. Mr. Knapczyk
absented himself from the proceedings for the most part.

[447] While the time taken to deal with this issue might be attributed to “other reasons for
delay” with respect to all of the Applicants, the overriding cause of delay up to September 24th
was Alcantara’s application to vacate his guilty plea, which in turn was attributable to the Crown.

[448] In my view, the period from January 21, 2010 to September 26, 2010 is attributable to
late disclosure of the use of the put away feature and is the responsibility of the Crown.

Stage 8: September 27, 2010 (commencement of delay motion)

to June 16, 2011 (anticipated end of trial)

(a) Events
 Page: 96

[449] Evidence on the delay motion was entered and the application was argued from
September 27, 2010 until December 16, 2010.

[450] The Applicants have filed other applications which are scheduled for the period up to
March 31, 2011, including a Garofoli application (Motion #4); a Charter search and seizure
motion (Motion #5) and a Charter abuse of process motion (Motion #6).

[451] The trial proper is scheduled to commence on April 11, 2011 and end on June 16, 2011.

(b) Arguments of the Parties

[452] The Crown argues that the time period from September 28, 2010 to April 11, 2011
(anticipated start of trial) should be attributed to the actions of the Applicants. That time period
has been set aside to conduct a number of pre-trial motions brought by them. The Crown asserts
these are actions of the Applicants and should weigh against them, citing Morin at paras. 44- 45.

[453] The Crown concedes the eight day period from January 5, 2011 to January 13, 2011 is
properly attributed to it as the prosecutor was not available to proceed with the pre-trial motions
during that time period.

[454] The Crown submits the time period from April 12, 2011 to June 16, 2011, when the trial
proper is anticipated to end, is part of the inherent time requirements of the case.

(c) Decision on Stage 8

[455] The pre-trial motions originally were scheduled to commence November 2, 2009 and to
continue for four months. Instead, they began on September 27, 2010 and are set to continue until
at least March 31, 2011. These are voluntary actions of the Applicants and, according to Morin at
paras. 44-45, must be weighed against them. In Conway, L'Heureux-Dubé J. stated for the
majority at para. 45 that in an assessment of reasonableness under 11(b) of the Charter, the
Crown and the accused must bear the consequences of any tactical decisions which they have
made in the conduct of the trial.

[456] I regard the period from April 1, 2011 to April 10, 2011, when all counsel will be
preparing for trial, to be part of the inherent time requirements of the matter, as is the period from
April 11, 2011 to June 16, 2011 for conduct of the trial itself.

D. Prejudice to the Applicants

[457] The Crown acknowledges that based on the overall length of the delay, the Court could
infer prejudice to all of the Applicants. However, it asserts that minimal prejudice resulted from
the delay caused by the late disclosure.
 Page: 97

[458] Each of the Applicants provided affidavit evidence as to the prejudice they allege was
caused by the delay of these proceedings.

1. Mark Jeffery Caines

(a) Evidence and arguments of Caines

[459] Caines swore an affidavit on September 13, 2010 and a supplementary affidavit on
November 22, 2010. Caines was born in Corner Brook, Newfoundland on June 24, 1973.
According to his earlier affidavit, he used to have a perfect life. From 2001 on, he was in a
common law marriage with his best friend and they co-parented a child for the first three and
one-half years of her life.

[460] Caines turned himself in to the police on December 5, 2006. Except for a period of about
three weeks, he has been in custody at the ERC or Drumheller Correctional Facility since that
time.

[461] Caines described his introduction to life in the ERC as traumatic. He was confined on
arrest in close, crowded quarters where there was blood and vomit, there was tension, isolation
and fear. He was strip-searched and placed on the “gang unit” with a member of the Warriors, a
native gang, whose rules Caines agreed to follow. The first night, he began to doubt his own
sanity. The next morning, he witnessed a violent assault in the food line and was splattered with
blood, although the guards did not intervene.

[462] Caines deposed that, while living on this unit, he was locked up for 23 hours a day and
allowed out only four times a day, for 15 minutes each time, to use the shower or phone. He
could only read, although it was difficult to concentrate. Open visits with his wife and daughter
were not permitted.

[463] Caines attested to the impact on his health: he could not exercise; he gained weight and,
due to his size, the thin mattress did not support him, so he suffered neck and back pain, as well
as sleeplessness.

[464] Caines described the night of March 12, 2007, when the cell doors on the unit were
unlocked by mistake. The prisoners left their cells, covered with blankets and sheets, and a riot
ensued, resulting in damage to fixtures, fire, and violence to the extent that one prisoner may
have died from these events. The riot was quelled by the guards in full riot gear using tear gas.
He was semi-conscious after the tear gas was sprayed and contends that he was violently
assaulted to a state of unconsciousness by a riot guard, although he had remained in his cell and
had not been a participant in the riot as he was in fear of the Native gangs.

[465] Caines deposed that he awoke in a holding cell amidst blood and vomit, was tied with his
hands and feet shackled behind him for 24 hours, while in excruciating pain with no medical
 Page: 98

assistance. The remnants of the scent of tear gas remained in his cell and there was no clean
bedding or clothing provided. Life in the ERC became intolerable after the riot: residue from the
fire and the pepper spray on the unit caused physical discomfort, hand sets from the phones were
not replaced for four weeks, and televisions were smashed. His depression deepened. His life on
the outside was disintegrating and his wife was destitute.

[466] Caines deposed that about four months after incarceration, he witnessed three gang
members stabbing an inmate who ran behind him for protection, causing him to fear for his own
safety, to be depressed and to withdraw from his family.

[467] After he had been incarcerated for seven months, the inmates flooded the unit with water
to protest the conditions. Caines said that due to the resulting mould, he developed skin
conditions and other ailments requiring frequent medical attention. He suffered from
sleeplessness, as well as foot and back pain because he could not get prescription footwear for his
flat feet.

[468] Caines deposed that his lawyer stopped visiting him, contributing further to his
depression and irrationality. He was in the ERC for a year before a bail application was made on
November 16, 2007. Over Crown objections, he was granted bail on January 23, 2008. The bail
conditions required cash and sureties in the sum of $1,000,000.00. When the conditions for bail
had been met, the Crown reactivated a charge that had been stayed, and as he was being released,
he was “gated.” He was released on those other charges on January 31, 2008.

[469] The order for judicial interim release was in force until it was revoked on February 22,
2008, as a result of a successful Crown review. Returning to the ERC, Caines says that he
became further depressed and had suicidal thoughts. He was incarcerated in another gang unit
that was worse than the first, with more fights and stabbings resulting in more lock downs, so
that privileges, such as phones and showers, were sometimes removed for days.

[470] After 16 months in the ERC, Caines attests that he was taken to the “segregation unit”
and placed on “administrative segregation” or in “the hole.” There had been a fight among gang
members at the Edmonton Maximum Security Institution and there was fear that this violence
would spill over to the ERC. He was taken to the segregation unit for his own protection.

[471] In September 2008, Caines was taken to Fort McMurray, where he was tried on a charge
that arose in 2001. On October 1, 2008, he was sentenced to four years in custody and transferred
to Drumheller Institution, where he was given the unit representative job. His parole release date
was June 2, 2010, but he could not be paroled due to the present charges.

[472] In about the spring of 2009, Caines’ wife left him. He deposed that his depression
continued. Once his sentence was served, he was transferred back to the ERC while shackled and
handcuffed, without seat belts in the transport vehicle. On arrival, he was locked in a “dry cell”
 Page: 99

(without a toilet) in case he had drugs, and then returned to the gang unit. On March 28, 2010, he
sought bail. The Crown opposed the application and it was denied.

[473] Caines stated in his September affidavit that his daughter was then seven years old. He
deposed that his mind had been affected by his 45 months in custody and that he had paid
$300,000.00 in legal fees.

[474] In his November 2010 affidavit, Caines attested to events that occurred around the time
these issues were being canvassed in Court. He said that on November 13th, two guards came to
his cell and strip searched him. He said they found nothing. He was then taken to be searched by
the drug dog. After the dog handler touched Caines’ leg, the dog sat, which it does if it smells
something. He deposed that he was told the direction from the “DDO” was that he be taken
directly to a “dry cell.” He was advised that contraband had been found in his cell. He claimed
that his roommate, the leader of the Red Alert, had hidden tobacco in a peanut butter sandwich
and the roommate was going to take responsibility for the tobacco. Caines deposed that he was
then strip searched again but still nothing was found. It was his impression that his treatment was
the result of his previously having brought to the Court’s attention what conditions he had been
subjected to at the ERC. Caines deposed that while he was in the dry cell, he was not allowed to
contact his lawyer for about eight hours and was not allowed to go to the washroom. According
to him, it was out of desperation that he contrived a story that he had swallowed drugs, hoping
that he would be sent to the hospital where he could go to the washroom. He was dry celled the
next day and not allowed to call his lawyer for hours.

[475] Caines deposed that on November 18th, his cell was the subject of a targeted search while
he was in court. He said that he had spilled protein powder on his desk. He was told the
substance was suspected of being heroin, although analysis produced a negative result.

[476] On the Friday, after court ended, he had Warden’s Court with respect to the tobacco
incident. His roommate did not take responsibility for the tobacco so Caines was punished by a
loss of privileges. He argued with his roommate. Caines said that he was then attacked by a
number of members of the Red Alert and he received numerous injuries. He said the guards
charged both him and his roommate with infractions and he was put into administrative
segregation.

[477] Caines testified that the September affidavit represented his version of his experience at
the ERC. He agreed with Crown counsel that while he was sometimes locked up for 23 hours a
day, at other times he was locked up for 18 hours a day or was out of his cell for most of the day
when working as a cleaner. The cleaner job was a reward for good behaviour. This depended on
the rotation and that, in turn, was dictated by the behaviour of the inmates. He clarified that when
he was first brought to the ERC, he was on quite a violent unit where the prisoners were locked
up from 18 to 23 hours a day. He agreed that what he described in his affidavit was the worst
case scenario.
 Page: 100

[478] Caines said that he lost his cleaner’s job when he was sent to Fort Saskatchewan (on July
27, 2007). When he returned to the ERC (around November 5, 2007), he was placed on a
different unit where there were a lot of long-term inmates who occupied the cleaner job. He did a
year on 4B when he was not a cleaner and then was transferred to Drumheller, where he served a
30-month sentence. When he went back to the ERC, he was not a cleaner from June to August
2010. In the last few months, he has gotten the job.

[479] Caines said that on July 25, 2008, when he was told that he would be a cleaner, there was
an incident on the unit which led to a lockdown. He was moved to segregation for a couple of
months for threatening to “shit bomb” the staff on 4B. He was charged and convicted of that on
appeal. He explained that the charge arose after the lockdown when the guards were controlling
the toilets and would not allow the prisoners on the unit to flush them for two days.

[480] The Crown suggested to Caines that the impression he was trying to convey in his
affidavits was that he was scared and intimidated while in the ERC. Caines said that indeed he
was afraid and intimidated. However, he admitted in cross-examination that he was never pushed
around by any Alberta Warrior members and that he often was a cleaner and not locked up.

[481] Caines agreed that he had more freedom for the four to five months in 2007 when he was
at Fort Saskatchewan. His file indicated he was returned to the ERC as staff at Fort
Saskatchewan felt he seemed to think he was running the unit, was too comfortable there and was
demanding. Caines explained that the inmates at the Fort were in the 18 to 22 year old age range
while he was closer to 40, the unit representative, and he just tried to do his best.

[482] As to the injuries he alleged resulted from the guards’ action after the March 12, 2007,
riot, he agreed he did not ask for treatment for his injuries, which he claimed were bruises and a
bloody nose.

[483] Caines acknowledged that he attempted in his affidavits to portray himself as an inmate
who did not cause disturbances or difficulties with other inmates or with the guards. He said he
was a fairly well-behaved inmate most of the time, but agreed to having to be reminded on
occasion to wear his coveralls rather than sweatpants and a t-shirt; to having been in a verbal
altercation with another inmate; to having been convicted of failing to give a required urine
sample because the request was made at 7:00 a.m.; and to being rude to a guards on occasion as
well. He admitted to having marijuana in his system on one occasion when he was asked for a
urine sample. In addition, he agreed that the drug dog signaled that there was a drug on his desk
on November 18, 2010 and a quick “nic test” indicated it was heroine, although it proved not to
be.

[484] Christopher Ryan Flamant is a serving prisoner at the Drumheller Institution. Flamant
was at the ERC on Unit 4C where he shared a cell with Caines as a cleaner. He described the unit
as violent, stressful, tense, and scary at times; a place where he witnessed about three fights a
week and saw homemade weapons on two occasions. At that time, Unit 4C included inmates
 Page: 101

belonging to three groups: the White Aryan Resistance (WAR); the Red Alert; and the Warriors.
These groups were unfriendly towards each other so that the members were kept separate when
out on rotation.

[485] Flamant was living with Caines when the door mechanisms failed and the riot ensued.
Inmates covered their heads with shirts, saran wrap, pillow cases, to hide their identity. A fire
was started on one of the benches, lasting about one-half hour, and the smoke made breathing
difficult. Blankets were burned, causing more smoke. One inmate was walking around with two
pipes in his hands, either because of fear or aggression. Items such as garbage cans were flying
around the unit. The observation windows to the guards’ station were obscured by newspapers.

[486] According to Flamant, Mr. Caines was not masked but rather was asking people to lock
up, although they did not listen. What he believed to be tear gas was unbearable, hard on the
eyes, hard for breathing. Flamant stuffed blankets under the cell doors and over his head to
prevent the gas from entering his mouth and eyes. The inmates flushed the toilets to bring fresh
air into the cell. Eventually, the guards in swat uniforms and riot gear quelled the riot. The
inmates were removed to a dry cell, a concrete empty cell, where they remained for 24 hours.
According to Flamant, Caines was in his cell or watching from the walkway, and as far as he
remembered, Caines did not go downstairs.

[487] Stephan Vollrath is a serving prisoner. He is 27 years of age and has spent about nine or
ten years on remand. He testified that he was housed on unit 4B at the time of his testimony, a
gang unit. He acknowledged being a member of the Red Alert. Mr. Vollrath says that he has
spent his whole life in jail. The choices there are to suck it up or flip out and go to the hole. He
attested to violence on the gang unit, stabbings, beatings, any kind of violence. He said that he
has seen blades, shanks, people crawling to the bubble covered in blood, and that most people
there are gang members. In his view, Unit 4B is the hardest.

[488] Leonard Goueffic has been the Director in charge of Programs and Services at the ERC
since March 2009, after a lengthy career at the Fort Saskatchewan Correctional Center. He gave
extensive evidence about the physical layout at the ERC and the routines in place.

[489] Mr. Goueffic’s evidence about Units 4A-D did not materially differ from that of the
inmates, except that he tended to report less time where inmates are confined to cells. He said
that inmates of the same gang stripe are housed together, as well as some with no gang
affiliation.

[490] Unit 4B has a capacity of 48 inmates. More often than not, there is a top/bottom rotation
so that one half of each unit is out of their cell at any given time. A top/bottom rotation means a
twelve-cell rotation or 24 inmates out at one time (rotation of the top tier, then bottom tier, and
so on). A six-cell rotation means at least 12 inmates out at one time.
 Page: 102

[491] When there is an assault, drugs or other disruption, the rotations increase. If the unit goes
to a four-group rotation, the amount of time for one inmate out of the cell is one hour. The one
hour is available for a shower, for watching tv in the common area, for accessing books, for
telephone calls, and visits to the gym only every third or fourth day.

[492] Mr. Goeuffic acknowledged that there are more serious fights and more weapons on the
4th floor, and more assaults by weapon on the 4th floor. Unit 6D is for administrative segregation,
and sometimes overflows to Unit 5D. Inmates are placed on administrative segregation for their
own protection or because of deteriorating behaviour or while awaiting hearing of disciplinary
charges. Unit 5D is disciplinary segregation, “the hole,” where inmates are on 23 hour lock up for
up to 14 days.

[493] Mr. Goeuffic confirmed that Caines was not an active participant in the riot that occurred
on Unit 4C. The airborne irritant distributed during the riot on March 12, 2007 was pepper spray
released in a gaseous form. He saw nothing to indicate the clean up or removal of the material
later.

[494] According to Mr. Goeuffic, Units 4B and 4C are maximum security units. For long term
remand inmates like Caines, there is little suitable programming, except for some specialized
programs pertaining to addictions, domestic violence, and some distance learning facilitated
through Norquest College, although course work is not easy in such small living quarters.

[495] Mr. Goeuffic confirmed that Caines was “dry celled” on three occasions when transferred
from Drumheller to ERC for this trial, but no contraband was found. Dry celling is a process of
placing inmates in isolation for three bowel movements or three days if they are thought to be
“packing” drugs. He had not seen any history from any source indicating that Caines had been in
possession of any narcotics while in an institution, although there was an instance of refusing to
provide a urine sample.

[496] In addition to the prejudice to this liberty and security interests, Caines submits that late
disclosure of the put-away feature impaired the ability of the Defence to assess the case to be
met. He contends that the critical decisions which he made prior to the disclosure are examples
of actual prejudice to his right to make full answer and defence.

(b) Arguments of the Crown

[497] The Crown acknowledges that based on the overall length of delay in this case, the Court
can infer prejudice to Caines. It admits the delay has affected his liberty interest. He is currently
denied judicial interim release in the Koker A prosecution and has been throughout the
proceedings other than for a three week period in 2008. However, the Crown notes that Caines
was a serving prisoner between October 1, 2008 and June 2, 2010 on an unrelated matter.
Further, he received credit for a period of pre-trial custody in that case, which was used to reduce
his four year sentence. Therefore, the Crown argues the applicable prejudice to Caines arises
 Page: 103

from the fact he will be required to experience an extra seven and one-half months of pre-trial
custody due to the delay caused by the late disclosure.

[498] The Crown argues the disclosure delay will have only a minimal effect on Caines’
security interest. It notes his main complaints are associated with his incarceration prior to June
2, 2010. Also, a majority of his past incarceration is attributable to his sentence in unrelated
proceedings. The Crown asserts that Caines has not suffered any prejudice in terms of trial
fairness due to the late disclosure. His guilty plea has been vacated and he has been returned to
the same position he was in prior to the delay.

(c) Decision on prejudice to Caines

[499] The chronology of Caines’ incarceration is:

December 5, 2006 Date Caines turned himself in to the police and was
arrested.

December 7, 2007 Judicial interim release granted ($61,250.00 cash,

$1,000,000.00 in securities).

January 31, 2008 Released from custody.

February 22, 2008 Judicial interim release vacated after a Court of Queen’s
Bench review of the grounds of his original release.

October 1, 2008 Sentenced on other matters (served at the Drumheller

Institution, except for Court appearances when he was
transported to the ERC).

May 31, 2010 Released on parole to ERC.

June 16, 2011 End of trial.

Total Time in Custody: From and including December 5, 2006, to and including
January 31, 2008.

From and including February 22, 2008, to and including

June 16, 2011.

= 1632 days in custody (including time as serving prisoner

of 608 days: from and including October 1, 2008 to and
including May 31, 2010).
 Page: 104

[500] Caines has suffered significant prejudice. He has established that conditions at the ERC
are egregious. The harsh conditions in which remand inmates find themselves there have been
the subject of previous observations by this Court. Although Caines may have exaggerated as to
some aspects of his experience, certain conclusions may be drawn from his evidence and that of
others who testified on this point. He has been incarcerated on units on the 4th floor with inmates
believed to belong to at least three different gangs. He has witnessed, and personally experienced
violence, a riot, a flood on the unit, as well as crowding (sometimes inmates are housed three to a
cell with a mattress on the floor), tension, stabbings and assaults. He has suffered physical
deterioration, weight gain, sore back, neck and feet, and deep depression. He has lost his
marriage and been estranged from his young daughter. He has been incarcerated in his cell
between 18 and 23 hours a day and has spent time in segregation.

[501] While not a model prisoner, it is also true that it would be difficult to be a model prisoner
in the conditions that are described. On the other hand, he has qualified to be a cleaner for
periods of time and so has had privileges in that role granted to him as a reward for good
behaviour. While the fact that he has not been a candidate for judicial interim release is
attributable to the charges that he faces and his personal circumstances, his liberty and security
interests have been harmed by the delay in that ever longer time has and will be spent in these
circumstances.

[502] Caines’ fair trial interests also have been affected by the delay occasioned by late
disclosure in that the entire trajectory of the trial was altered, with the necessary reassessment,
vacating of his guilty plea, re-entry into this trial and activation of pre-trial motions.

2. John Reginald Alcantara

(a) Evidence and arguments of Alcantara

[503] Presently, Alcantara is residing at the Drumheller Institution where he is serving a

sentence of eight years 10 months imprisonments imposed by Sulyma J. on his conviction in the
Koker B prosecution.

[504] Alcantara was born on October 2, 1972. He was 34 years of age when arrested on
November 26, 2006 and is now 38 years of age. His father is deceased and his mother remarried.
His mother and step-father have relocated to the Philippines. Alcantara also has a 29-year-old
brother who lives and works in Edmonton.

[505] Alcantara completed high school in Edmonton as well as a real estate course and one and
one half years towards a management studies program at Grant McEwan College. He has been
married since 2005 and has two sons, aged 11 and 4 years, but has not been able to participate in
raising them.
 Page: 105

[506] Alcantara was incarcerated at the ERC from November 26, 2006 to September 9, 2008
and from March 3 to December 4, 2009, when he was sentenced in the Koker B matter. He
deposed that he experienced periods of depression and anxiety associated with the uncertainty of
the outcome of the Koker A and Koker B cases. He attested that he has been in the judicial
system for about four years and has had four show cause hearings, one bail revocation
application, three bail review applications, one bail forfeiture application, two preliminary
inquiries that took about six months to complete, pre-trial motions and trial in the Koker A
matter, spanning a period of approximately 20 months.

[507] Alcantara submits that his pre-trial incarceration is a significant factor in terms of
prejudice to his liberty interest. He notes that courts have long recognized that remand prisoners
spend their time in detention centres which are ill-suited to lengthy incarceration due to
overcrowding, limited educational programs and limited access to recreational facilities.

[508] The only time when he was incarcerated on the Koker A matter when he would not
otherwise have been incarcerated on Koker B was from June 13, 2008, when he was granted
judicial interim release by Malin P.C.J. in Koker B [but did not enter into the recognizance at the
time as he had been denied release in Koker A] until September 9, 2008, after he was granted
judicial interim release in Koker A by Philp P.C.J. on September 5th and had entered into the
recognizances regarding both bail orders.

[509] Alcantara points out that the orders for his judicial interim release contained a number of
restrictive conditions, including 24-hour house arrest with a knock and respond clause and
geographical mobility limitation. On December 9, 2008, the conditions of release were varied by
Sanderman J., allowing Alcantara to have limited contact with a co-accused, possess a cellular
telephone and be absent from his residence for specified family reasons and to participate in
charitable events. The 24-hour house arrest provision remained in effect.

[510] Alcantara submits that prejudice from restrictive bail conditions does not end where there
is a breach of conditions in a situation such as here where the breach allegations did not involve
the commission of a criminal offence (R. v. Williams, 2010 BCPC 122 at para. 24).

[511] Although proof of actual prejudice to the right to make full answer and defence is not
required, Alcantara contends that it is significant that late disclosure of the put-away feature
impaired the ability of the Defence to properly assess the case to meet. Based on disclosure up to
December 10, 2009, he made the decision to abandon his Charter application for exclusion of
evidence based on a breach of ss. 7 and 8 and entered a plea of guilty to conspiracy. He submits
that it was necessary to reassess his position in light of the new disclosure.

(b) Arguments of the Crown

 Page: 106

[512] The Crown argues that any prejudice experiences by Alcantara due to the pre-trial
custody he served on Koker A was not related to any delay. The denial of his judicial interim
release was a consequence of his involvement in the criminal proceedings, not the delay.

[513] The Crown asserts that the delay caused by late disclosure was between January 20, 2010
and September 10, 2010, while Alcantara’s pre-trial custody on Koker A was served between
November 26, 2006 and December 4, 2009, when he was sentenced to 14 years imprisonment on
Koker B. Further, Alcantara was given credit for the entire period of his pre-trial custody since
his arrest on November 26, 2006 against his 14 year sentence, reducing it to eight years and ten
months. The Crown contends this indicates the pre-trial custody was associated to the Koker B
charges and not Koker A. As a result, there is no nexus between the prejudice to his liberty
interest experienced from his pre-trial custody and the delay caused by late disclosure.

[514] Also, the Crown maintains that any prejudice Alcantara experienced due to restrictive bail
conditions is not related to the disclosure delay but rather to his involvement in the criminal
proceedings. It points out that Alcantara was on judicial interim release between September 9,
2007 and March 25, 2008, whereas the disclosure delay was between January 20, 2010 and
September 10, 2010. The Crown asserts that, in any event, the conditions were not excessive
given the circumstances. His house arrest conditions contained several exceptions permitting him
to leave his residence for employment, health appointments, medical emergencies, religious
services and any other purpose authorized by his bail supervisor. He could also leave the
Edmonton area for employment purposes with permission.

[515] The Crown takes the position that the disclosure delay would have only a minimal effect
on Alcantara’s security interest. Only the extended period, if any, of depression or anxiety he
experienced during the disclosure delay period would be of concern. Even that should be
minimal as he has been facing two criminal prosecutions since November 26, 2006 and the eight
months of delay is a relatively short period in comparison.

[516] The Crown submits that Mr. Alcantara’s fair trial interests have not been prejudiced as a
result of the disclosure delay. He had been allowed to vacate his guilty plea and is now back in
the same position as he was in before pleading guilty.

(c) Decision on prejudice to Alcantara

[517] The chronology of Alcantara’s incarceration is:

November 26, 2006 Date of arrest.

June 13, 2008 Judicial interim release granted in Koker B (terms:

$25,000.00 cash, securities totalling $125,000.00, must
surrender his passport, twice a week reporting, and 24-hour
house arrest with a knock-and-respond clause).
 Page: 107

September 5, 2008 Judicial interim release granted in Koker A ($50,000.00

cash, 24-hour house arrest with a knock-and-respond
clause, a geographical mobility limitation, and mandatory
reporting to ERC 96 hours before any trial or summary
disposition).

September 9, 2008 Released from custody.

March 3, 2009 Alcantara arrested, on breach of recognizance

charges.

March 23, 2009 Bail on Koker A revoked.

September 15, 2009 Convicted in Koker B proceedings.

December 4, 2009 Sentenced by Sulyma J. (14 years in prison less time served
of five years and two months, for a total of eight years and
ten months).

December 4, 2009 to end of trial: Serving prisoner (in Drumheller Institution) and on
remand on present charges.

June 16, 2011 End of trial.

Total time in custody: From and including November 26, 2006, to and including
September 9, 2008.

From and including March 3, 2009 to and including

June 16, 2011.

= 1470 days in custody (including time as serving prisoner

of 560 days: from and including December 4, 2009, to and
including June 16, 2011).

* Alcantara was denied bail in Koker A and B. A

portion of his pre-trial custody on Koker A
(November 26, 2005 to December 4, 2009)
encompassed the same time period he received pre-
trial custody credit for on Koker B.

[518] Alcantara has suffered prejudice. His security interests have been affected by the delay in
that he is facing on-going stress or damage to reputation occasioned by lengthy exposure to
 Page: 108

unresolved criminal accusations. There has been a prejudicial impact on Alcantara’s liberty
interests as well. The calculation is complicated because he received credit in his sentence on
Koker B for time that he was on remand for both matters. His fair trial interests also have been
affected by the delay occasioned by late disclosure in that the entire trajectory of the trial was
altered, with the necessary reassessment and activation of pre-trial motions.

3. Alan Peter Knapczyk

(a) Evidence and arguments of Knapczyk

[519] Knapczyk was 32 years of age when arrested November 26, 2006. He attests that he was
in very good health and very good shape upon his arrest, with no problems of depression, anxiety
or sleep loss. He says that he was employed full time and had custody and primary residential
care of his 12 year old daughter. He describes his relationship with his family who reside in
Edmonton as extremely close and that his father is a prominent member of the business
community. He attests that since his arrest, this matter has been reported in the media at least 15
times, that he has been referred to as an alleged drug king pin, and that his name is mentioned
each time. He understands that conviction may result in a “very lengthy prison sentence”.

[520] Knapczyk says that as a result of the stress and anxiety associated with these charges, he
has experienced depression, difficulty eating, and loss of energy with the result that he has not
been able to maintain his physical fitness that he had cultivated over ten years. He has lost 30
pounds, sleeps only a few hours at a time, is nauseous, and is prescribed anti-depressants though
he is opposed to use of mood altering prescription drugs.

[521] Knapczyk attests that he lost his job as a result of the notoriety and nature of the charges.
His work history is mechanical and labor related, requiring shift work and that he be out of town.
Initially, his bail conditions included a curfew but in June, 2008 the terms were amended with the
result that he obtained employment with Tri-Star Underground, working up to 60 hours per
week. In June of 2010, he was dismissed, and contends that he was advised by his employer that
he was fired as a result of these charges and that customer relations might be affected.

[522] He has forgone the opportunity to buy a house and enter the motorcycle sales and repair
business because of the outstanding charges.

[523] Knapczyk has attested to the fact that his 15 year old daughter now lives with her mother
and he sees her only a few times a month. They cannot travel or take long weekends to camp due
to the Monday curfew. She is in counselling because she suffers anxiety associated with the
charges as well as social exclusion. He says it is difficult to have a meaningful relationship with
her for fear of a possible lengthy separation. In 2009, his girlfriend gave birth to his second child,
but they have decided that he will play a limited role in her life so she does not become attached
and then separated from her father.
 Page: 109

[524] Knapczyk attests further to the public shame his father endures in the community as a
result of the unresolved status of the charges.

[525] Knapczyk argues that his liberty interests have been affected: he was in custody 19 days,
his bail conditions have been strict with curfew, travel restricted to Alberta, and the impact on his
ability to participate in his daughter’s up-bringing. He argues that his security interests have been
affected by the exposure to criminal proceedings, the uncertainty of his future with the prospect
of a jail sentence weighing heavily, he is prevented from forming close bonds with his daughter,
and he is living day to day. He argues that his physical and emotional health have been
compromised.

(b) Arguments of the Crown

[526] The Crown acknowledges that the Court can infer prejudice to Knapczyk based on the
overall length of delay. However, it argues the delay will have minimal prejudicial effect on his
liberty interest. He sought and obtained judicial interim release on January 29, 2007. The
conditions of release were varied over time. By January 2010, they were not overly onerous or
excessive in the circumstances. The only curfew requires that he be in his residence on Mondays
between 10:00 p.m. and Tuesday at 7:00 a.m. The only travel restriction is that he not leave
Alberta without the permission of his bail supervisor and that he turn in his passport.

[527] The Crown maintains that any prejudice resulting from the extended periods of anxiety
due to the delay in disclosure is minimal and no exceptional difficulties have been asserted.

[528] The Crown takes the position that Knapczyk’s fair trial interests have not been prejudiced
as a result of the disclosure delay.

(c) Decision on prejudice to Knapczyk

[529] The chronology of Knapczyk’s incarceration is:

November 26, 2006 Date of arrest.

December 15, 2006
Judicial interim release granted (remain in Alberta, abstain
from drugs and firearms, surrender passport, cell phone
prohibition, curfew of 10:00 p.m. to 7:00 a.m., maintain a
landline at a fixed and certain address, maintain
employment, carry a copy of the recognizance at all times
and report to ERC 18 hours prior to any preliminary
hearing or trial).

July 30, 2007 Judicial interim release varied by consent

(Condition 12 amended to read that Accused must
 Page: 110

abide by a curfew of 10:00 p.m. to 7:00 am., except

as approved in writing by the bail supervisor.
Notwithstanding anything in the order, the Accused
need not abide by the curfew between July 26, 2007
and September 7, 2007).

April 7, 2008 Judicial interim release varied by consent (Accused must

report to the ERC 18 hours prior to the preliminary inquiry,
but need not be held in custody for that time). *Granted in
an April 4, 2008 consent variation of release order.

December 3, 2010 Judicial interim release varied by consent (Accused may be

absent during curfew hours for the purpose of employment
if bail supervisor is notified).

Total time in custody: 20 days (From and including November 26, 2006, to and
including December 15, 2006).

[530] Knapczyk has suffered prejudice. His security interests have been affected by the delay in
that he is experiencing on-going stress or damage to reputation occasioned by lengthy exposure
to unresolved criminal accusations in relation to serious charges. The impact on Knapczyk’s
liberty interests has been minimal because he was granted early judicial interim release and has
been able to maintain employment and mobility within the province. His fair trial interests have
been affected by the delay occasioned by late disclosure in that the entire trajectory of the trial
was altered, with the necessary reassessment and activation of pre-trial motions.

E. Balancing

1. The purposes of s. 11(b)

[531] It is useful to recall the elements of the balancing process.

[532] Section 11(b) of the Charter embraces ss. 7 and 11(d). In Askov at p. 474, Cory J. put it
this way:

Like other specific guarantees provided by s. 11, this paragraph is primarily

concerned with an aspect of fundamental justice guaranteed by s. 7 of the Charter
... It is a fundamental precept of our criminal law that every individual is
presumed to be innocent until proven guilty. It follows that on the same
fundamental level of importance, all accused persons, each one of whom is
presumed to be innocent, should be given the opportunity to defend themselves...
at the earliest possible time.
 Page: 111

[533] According to Sopinka J. in Morin at paras. 26-88, the primary purpose of s. 11(b) is to
protect the following individual rights of accused persons:

(1) the right to security of the person, by seeking to minimize the anxiety, concern
and stigma of exposure to criminal proceedings;

(2) the right to liberty, by seeking to minimize exposure to the restrictions on

liberty which result from pre-trial incarceration and restrictive bail conditions; and

(3) the right to a fair trial, by attempting to ensure that proceedings take place
while evidence is available and fresh.

[534] The secondary interest of society as a whole also is recognized in s. 11(b). The secondary
societal interest has two aspects: (i) that which parallels the individual interest; and (ii) that
which is adverse in interest.

[535] In Morin at para. 29, Sopinka J. stated that the societal interest is most obvious when it
parallels that of the accused in the context of ss. 7 and 11(b). The parallel interest is that those
accused of crimes be treated humanely and fairly; that they be brought not to any trial but to a fair
trial. Trials held within a reasonable time have that intrinsic value. On a fundamental level, a fair
trial also incorporates the presumption of innocence referred to by Cory J. in Askov at p. 474.

[536] The societal interest that is adverse to that of the accused was referred to in Conway v.
The Queen, [1989] 1 S.C.R. 1659, 49 C.C.C. (3d) 289 at 306 (S.C.C.) by L’Heureux-Dube J. as
the “...important community interest of preventing crime through the conviction of persons guilty
of a criminal offence.” In Askov at p. 474, Cory J. spoke of it as “...a collective interest in
ensuring that those who transgress the law are brought to trial and dealt with according to the
law.” In Morin at para. 30, Sopinka J. characterized it as, “...the interests of society in law
enforcement. As the seriousness of the offence increases so does the societal demand that the
accused be brought to trial.”

2. The Morin factors

[537] Sopinka J. in Morin at para. 32, described judicial balancing as involving an examination
of the length of the delay and its evaluation in light of the following factors: waiver of time
periods, reasons for the delay, (including inherent time requirements, actions of the accused,
actions of the Crown, limits on institutional resources and other reasons), and prejudice to the
Accused. The degree of prejudice, or absence thereof, is an important factor in determining the
length of institutional delay that will be tolerated (Morin at para. 64).

[538] In Chan, Sulyma J. remarked as follows at paras. 4-5, 406, and 422:
 Page: 112

Madam Justice L'Heureux-Dubé in Conway at para. 21 stated that while some

degree of impairment of an accused's s. 11(b) right may necessarily result from the
passage of time, greater weight in the overall assessment of reasonableness should
attach to impairment resulting from delays not attributable to the person charged.

...

Halvorson J. in R. v. Laporte (1994), 124 Sask.R. 307 at para. 30 (Q.B.)

suggested that courts generally take a stricter view of delays arising from a failure
on the part of the Crown to provide disclosure than from delays resulting from
some other forms of Crown conduct.

...

The inherent portion of the delay relating to disclosure is the length of time it
reasonably should have taken the Crown to provide disclosure in a properly
conducted and prosecuted case of similar complexity.

[539] In balancing the primary interests of the individual (liberty, security, trial fairness) with
the adverse aspect of the societal interest, courts take into account: (1) length of the delay; (2)
complexity of the case; and (3) seriousness of the charge. Societal interests increase with the
seriousness of the charge (Morin at para. 30).

[540] In R. v. Kporwodu (2005), 195 C.C.C. (3d) 501 (C.A.), the Crown argued that the trial
judge had failed to properly balance the Morin factors and specifically, given the seriousness of
the offences, had failed to give proper consideration to the societal interest of ensuring that
alleged offenders are brought to trial and dealt with according to law. The court responded to this
argument at paras. 192-194, stating in part:

... the seriousness of the offence is not a separately enumerated factor to be

considered in and of itself. There is no separate analysis of reasonableness in light
of the seriousness of the offence. Rather, the seriousness of the offence must
inform both the court's consideration of each factor and the balancing exercise.

In making this statement, we wish also to respond to the suggestion that in the
recent cases of Qureshi, supra, Seegmiller, supra, and R. v. Kovacs-Tatar (2004),
73 O.R. (3d) 161, [2004] O.J. No. 4756, 192 C.C.C. (3d) 91 (C.A.), this court
treated the seriousness of the offence as an independent factor to be pitted against
the interests of an accused. We do not read those cases as suggesting that some
type of separate analysis is required for more serious offences. In each case, this
court followed the analytical framework established in Morin, considered the four
factors relevant to delay, and engaged in the requisite balancing process.
 Page: 113

... while society has a heightened interest in seeing that serious offences are tried,
the Crown has a heightened obligation to ensure that the trials for such offences
are held in a timely fashion.

[541] In Ghavami at para. 52, the British Columbia Court of Appeal recently stated:

In our view, balancing makes sense only if weight is attributed to the causes of
delay. Inherent time requirements should receive little if any weight, because they
are not attributable to either the state or the accused, and because some delay is
inevitable. Actual or inferred prejudice to the accused will be accorded a certain
weight, but it may be counter-balanced by delay caused or contributed to by the
deliberate actions of the defence. Correspondingly, if the organs of state - Crown,
justice system, or judiciary - are responsible for some part of the delay, then the
public interest will be entitled to less weight when balanced against the accused's
right to a timely trial, because the protectors of the public interest have failed to
live up to the standard expected of them. However, institutional and judicial
delays will be accorded less weight than delays actually within the scope of the
Crown's ability to expedite proceedings, because they are not the result of
voluntary Crown action.

3. Arguments of the parties

[542] Alcantara argues that the 26 months which he considers attributable to Crown delay
should be given greater weight in the overall assessment of reasonableness, particularly the eight
month delay caused by the late disclosure. He submits that the Court should infer that he is
prejudiced by the total time of four years, six and one half months to time of trial, and actual
prejudice has been proved to his liberty and security interests. He also asserts that the late
disclosure has impacted his right to make full answer and defence under s. 7 of the Charter .

[543] He submits that in balancing the Crown responsibility for the overarching reasons for
delay against society’s interests in the trial of these serious charges, those interests are served by
ensuring the minimization of delay in such large and complex cases (Paryniuk, at para. 89). In
this case, he argues, there has been a breach of the right to trial within a reasonable time under s.
11 (b) of the Charter and that a judicial stay of proceedings ought to be granted under s. 24(1).

[544] In oral argument, Alcantara emphasized that it is clear the RCMP were using the put
away feature as early as 2003 when Ms. Miller said that the RCMP started using Voicebox,
although it appears that the use of the feature was unknown to the Crown in this case until just
prior to its disclosure to the Defence. He contends that disclosure should have been made before
the trial commenced and the late disclosure caused impairment to his right to make full answer
and defence as is illustrated by the complete shift in approach: further disclosure motions,
application to vacate pleas, resurrection of pre-trial motions and the problem of examining
evidence derived from the interceptions contrary to the wire authorization.
 Page: 114

[545] Alcantara argues that the case law is consistent and that R. v. Mills, [1999] 3 S.C.R. 668,
Conway, Askov, and Morin all hold that the longer the delay, the more likely that the Court will
infer prejudice. In this case, the overall period of delay is more than 4 years. Even excluding the
period after he was sentenced for Koker B, he suggests that there is still a period of delay in
excess of two years, being thirty one and one half months. He points to the decision of Sulyma J.
in Chan at para. 631, in which she noted the inextricable nexus between ss. 7 and 11(b) Charter
interests. Alcantara maintains that although the fact he was a serving prisoner for part of the
period of delay does ameliorate the impact of the delay on his liberty interests, the prejudice to
his security and fair trial interests has continued.

[546] Caines emphasizes the purposes of s. 11(b) of the Charter: the protection of security,
liberty and fair trial interests. He maintains that, in terms of his security interests, his anxiety and
the stigma of his exposure to the criminal justice system continued even though he was a serving
prisoner during part of the period of delay. He points to the “absolutely irrefutable” proof of
prejudice in the inhumane treatment he suffered at the ERC, invoking the terms “nasty and
brutish.” This prejudice, he argues, is entitled to more weight the longer it goes on and the more
serious it is. He submits that his liberty interests have been affected profoundly as he was denied
judicial interim release. He also argues that his fair trial interests have been affected by the delay,
including the effects of the delay in providing significant disclosure.

[547] Knapczyk argues that Crown delay must be accorded greater weight, in particular the fact
that the trial originally was scheduled for November 2009 but the proceedings did not get under
way until September 2010.

[548] He emphasizes the purposes of s. 11(b) in arguing that his Charter-protected interests
have been breached: his liberty interests by the strict bail conditions under which he has lived; his
security interests by long-term exposure to criminal proceedings causing harm to his physical and
mental health; and his fair trial interests that are necessarily affected by delayed proceedings. He
argues that prejudice has been established in his case.

[549] The Crown asserts that with a qualitative balancing of the appropriate interests, the delay
in this prosecution is not unreasonable. Society has a significant interest in ensuring that the
Applicants are brought to trial given the serious charges they are facing.

[550] The Crown argues that while the Applicants suffered some prejudice as a result of the
disclosure delay, it is minimal. It says the delay did not prejudice Alcantara’s liberty interests or
compromise his right to a fair trial. The Crown suggests that the almost eight months of delay
which it concedes it is responsible for is minimal compared to the overall delay, 22 and one half
months of which it attributes to Alcantara himself.

[551] In terms of Knapczyk, the Crown contends the delay did not compromise his fair trial
interest and there was only minimal prejudice to his liberty and security interests. It argues the
 Page: 115

disclosure delay is just a fraction of the overall delay, of which 12 months is attributable to
Knapczyk.

[552] The Crown argues that while Caines suffered some prejudice as a result of the delay, it
did not compromise his fair trial interest. It suggests only minimal prejudice to his security
interests can be inferred. It concedes there is greater prejudice to his liberty interests, but says it is
not excessive. It contends the disclosure delay is a fraction of the overall delay, 12 months of
which it contends is the responsibility of Caines.

4. Balancing in this case

(a) Overall period of delay

[553] Alcantara, Knapczyk and Caines all were charged on November 24, 2006. Alcantara and
Knapczyk were arrested on November 26, 2006. Caines was arrested on December 5, 2006. The
trial presently is scheduled to recommence on April 11, 2011 and to conclude on June 16, 2011.
Accordingly, the operative time period is about four years and 6.5 months.

[554] Caines argues that pre-charge delay must be considered, relying on the following
statement in Morin at para. 35:

As I have indicated, this factor requires the court to examine the period from the
charge to the end of the trial. "Charge" means the date on which an information is
sworn or an indictment is preferred (see Kalanj, supra, at p. 1607). Pre-charge
delay may in certain circumstances have an influence on the over-all
determination as to whether post-charge delay is unreasonable but of itself is not
counted in determining the length of the delay.

[555] Alcantara argues that the events that gave rise to this prosecution started on July 1, 2005
and continued to March 2006. He points out that the investigation concluded in February 2006,
but charges were not laid until the following November. He argues that this period of nine
months is important as the Crown had nine months prior to the swearing of the Information to get
their disclosure materials together. I have considered this pre-charge delay in the balancing.

[556] I have determined, and counsel agree, that the time period between the date when the
Applicants were charged and the projected end of trial is sufficiently long so as to raise the issue
of reasonableness.

(b) Attribution for delay

[557] As to attribution or responsibility for the delay, I have concluded that:

 Page: 116

Stage 1: November 26, 2006/December 5, 2006 (arrest) to October 31, 2007

(end of intake period): The initial intake period (inherent time period) ran from
November 26, 2006 in terms of Alcantara and Knapczyk and December 5, 2006 in
terms of Caines through to the end of October 2007.

Stage 2: November 1, 2007 to April 6, 2008 (day before preliminary inquiry):

The period of delay from November 1, 2007 to February 24, 2008 is attributable
to reasonable institutional delay. While part of the delay during that time period
may also be the responsibility of Alcantara as a result of his change of counsel, I
give greater weight to the institutional delay as the preliminary inquiry could not
have proceeded prior to February 25, 2008 even if Alcantara had not retained a
new lawyer.

The period of delay between February 25, 2008 and April 6, 2008, when the
preliminary inquiry in the Koker B matter was proceeding, is attributable to “other
reasons for delay” as against Caines, Alcantara and Knapczyk.

Stage 3: April 7, 2008 (start of preliminary inquiry) to July 14, 2008

(committal to stand trial): The time period between April 7, 2008, when the
preliminary inquiry in this matter commenced, and July 14, 2008, when the
Applicants were committed to stand trial, is part of the inherent time requirements
of the case.

Stage 4: July 15, 2008 (day after committal) to September 5, 2008

(adjournment request): The time period from July 15, 2008 to August 22, 2008
was part of the inherent time requirements of the case. The delay from August 23,
2008 to the next arraignment date of August 29, 2008 was institutional. The
period of delay from August 30, 2008 to September 5, 2008 is accounted for as
“other reasons for delay” as against all the Applicants.

Stage 5: September 6, 2008 (day after adjournment request) to October 24,

2008 (setting of trial dates): The delay from September 6, 2008 to October 24,
2008 was due to Mr. Chadi’s withdrawal as counsel for Caines and Knapczyk and
the need for those Accused to obtain new counsel before a trial date could be set.
Caines and Knapczyk share responsibility for this period of delay with the Crown.
In terms of Alcantara, this period of delay is attributable both to “other reasons for
delay” and Crown delay.

Stage 6: October 25, 2008 (day after trial date scheduled) to November 10,
2009 (trial to commence): The time period from October 25, 2008 to February 2,
2009 was one of institutional delay. The period from February 3, 2009 to June 10,
2009 is attributable to “other reasons for delay” as against all three Accused. The
delay from June 10, 2009 to September 1, 2009 was institutional. The time period
 Page: 117

from September 2, 2009 to November 10, 2009 should be regarded as “other

reasons for delay” in regard to all three Accused.

Stage 7: November 11, 2009 (day after trial to commence) to September 26,
2010 (day before commencement of delay motion): The time period from
November 11, 2009 to December 10, 2009 was a period of Crown delay.
December 11, 2009 to December 17, 2009 was a period of inherent delay. The
delay from then to January 20, 2010 was a period of institutional delay or should
be attributed to “other reasons for delay.” Finally, the delay from January 21, 2010
to September 26, 2010 is the responsibility of the Crown.

Stage 8: September 27, 2010 (commencement of delay motion) to June 16,

2011 (anticipated end of trial): The time period from September 27, 2010 to
March 31, 2011is attributable to actions of the Defence as against all three
Applicants. The period from April 1, 2011 to June 16, 2011 is part of the inherent
time requirements of the case.

[558] Accordingly, the operative time period from date of arrest to conclusion of the trial is
about 54.5 months.

[559] Of that time, about 18 months must be subtracted as inherent delay (November 26,
2006/December 5, 2006 to October 31, 2007; April 7, 2008 to July 14, 2008; July 15, 2008 to
August 22, 2008; December 11, 2009 to December 17, 2009; April 11, 2011 to June 16, 2011).

[560] Institutional delay accounts for some 11 months (November 1, 2007 to February 24,
2008; August 23, 2008 to August 29, 2008; October 25, 2008 to February 2, 2009; June 10, 2009
to September 1, 2009 and December 18, 2009 to January 20, 2010).

[561] Actions of Caines and Knapczyk caused or contributed to 7.75 months of delay;
including the period of delay from September 6, 2008 to October 24, 2008 caused by Mr. Chadi’s
withdrawal as counsel (about 1.75 months), responsibility for which they share with the Crown;
and the delay from September 27, 2010 to March 31, 2011consumed by pre-trial motions (6
months). Actions of Alcantara caused or contributed to about 10 months of delay; including the
delay from November 1, 2007 to February 24, 2008 resulting from his change in counsel (4
months), to which I give little weight as it occurred during a period of overriding institutional
delay; and the delay during the pre-trial motions (6 months).

[562] The Crown caused or contributed to about 10.75 months of delay; including the delay
caused by Mr. Chadi’s withdrawal due to conflict, responsibility for which it shares with Caines
and Knapczyk (1.75 months); and the delay from November 11, 2009 to December 10, 2009
(1 month) and from January 21, 2010 to September 26, 2010 (8 months) caused by its late
disclosure of the use of the “put away” function in the face wire authorizations that require live
monitoring (8.25 months). This latter time period is entitled to more weight because of the
 Page: 118

Crown’s Stinchcombe disclosure obligations, and because the information was in the possession
of the police and its importance for outstanding prosecutions known for a significant period of
time before disclosure was made.

[563] Other reasons for delay have caused or contributed to 9.75 months of delay; including the
period from February 25, 2008 to April 6, 2008, when the Koker B preliminary inquiry was
proceeding (1.25 months); the period from August 30, 2008 to September 5, 2008 (0.25 months);
September 6, 2008 to October 24, 2008 (1.75 months), responsibility for which is shared by the
Crown in terms of Alcantara; February 3, 2009 to June 10, 2008 (4.25 months); and September 2,
2009 to November 20, 2009 (2.25 months). This delay, while not attributable to the Crown, must
be considered in the overall period of delay.

[564] As there is some overlap in the reasons for delay for certain periods, the numbers for the
individual reasons for delay do not add up precisely to the number for the total period of delay.

(c) Prejudice

[565] When there is delay of four years and 6.5 months between the charges and the trial,
prejudice to Charter-protected interests is assumed. The evidence shows that the security
interests of Caines, Alcantara, and Knapczyk have been infringed in that the heavy weight of
facing criminal prosecution has been borne by them over a protracted period of time, causing
harm to their emotional, physical and mental well-being. The length of the delay has exacerbated
this harm beyond what would be suffered as a consequence of the charges themselves. I also take
into consideration that when an accused is in custody, less institutional or Crown delay is
acceptable. The prejudice suffered by Caines, incarcerated for months under oppressive
conditions at the ERC, awaiting trial and presumed innocent, is significantly greater than that of
Knapczyk, who has been on judicial interim release, and Alcantara, who is a serving prisoner and
will be so until trial concludes.

(d) Complexity

[566] This is a large and complex case. The charges of conspiracy to traffic in cocaine facing
the three Applicants name 18 alleged co-conspirators. The alleged activities of some of those
individuals have been the subject of independent charges. Alcantara and Knapczyk face a charge
of conspiracy and trafficking in relation to a criminal organization. Caines faces numerous other
charges, most serious of which is being one of the persons constituting a criminal organization.
The police obtained five authorizations to intercept private communications under s. 186 of the
Code. As noted above, the disclosure received by the Applicants consists of over 8,317
documents totalling in excess of 400,000 pages provided to the Applicants predominately in
electronic form by way of an external hard drive and multiple DVDs. The disclosure increased
with the material concerning the put away issue. The narrative logs of the intercepted private
communications contain 51,827 sessions totalling 59,530 pages. In a Notice of Intention under s.
189(5) of the Code dated March 6, 2008, the Crown gave notice that it would seek to introduce
 Page: 119

464 intercepted private communications into evidence at trial, though this will change as a result
of the late disclosure.

(e) Seriousness of the charges

[567] The seriousness of the charges is reflected in the gravamen of the offences as well as in
the potential penalties. All three Accused are charged with conspiracy to traffic in cocaine
contrary to s. 465(1)(c) of the Criminal Code, as well as with trafficking in cocaine contrary to s.
5(1) of the Controlled Substances Act.

[568] Alcantara and Knapczyk have each been charged under s. 467.12 of the Criminal Code.
The wording of that section is as follows:

467.12(1) Every person who commits an indictable offence under this or any other
Act of Parliament for the benefit of, at the direction of, or in association with, a
criminal organization is guilty of an indictable offence and liable to imprisonment
for a term not exceeding fourteen years. [Emphasis added.]

(2) In a prosecution for an offence under subsection (1), it is not necessary for the
prosecutor to prove that the accused knew the identity of any of the persons who
constitute the criminal organization.

[569] The maximum sentence for this criminal offence, as stated above, is fourteen years in
prison. A sentence under s. 467.12 will also attract the additional sanctions listed below that
accompany a conviction under s. 467.13. As well, the “totality principle” applies to sentences for
s. 467.12 offences.

[570] Caines has been charged under s. 467.13 of the Criminal Code. The wording of that
section is as follows:

467.13(1) Every person who is one of the persons who constitute a criminal
organization and who knowingly instructs, directly or indirectly, any person to
commit an offence under this or any other Act of Parliament for the benefit of, at
the direction of, or in association with, the criminal organization is guilty of an
indictable offence and liable to imprisonment for life. [Emphasis added.]
 Page: 120

[571] The maximum sentence for this criminal offence is life imprisonment (R. v. Smith, 2008
SKCA 20 at para. 291, 307 Sask.R. 45, and R. v. Terezakis, 2007 BCCA 384 at para. 37, 223
C.C.C. (3d) 344).

[572] Special sentencing rules accompany a conviction under s. 467.13, which include:

(a) a criminal organization offence must be consecutive to any other

punishment (s. 467.14);

(b) a special parole ineligibility period applies for conspiracy offences

(s. 743.6(1.2)); and

(c) a criminal organization charge may be considered as an aggravating factor

in sentencing (s. 718.2 of the Criminal Code).

[573] Chief Justice Lamer (as he then was) in R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 42
qualified the requirement that sentences be consecutive:

In the context of consecutive sentences, this general principle of proportionality

expresses itself through the more particular form of the “totality principle”. The
totality principle, in short, requires a sentencing judge who orders an offender to
serve consecutive sentences for multiple offences to ensure that the cumulative
sentence rendered does not exceed the overall culpability of the offender.

[574] There is no legislated minimum sentence for an offence under s. 467.13.

[575] Caines also has been charged with being one of the persons constituting a criminal
organization and instructing others to traffic in cocaine and be in possession of the proceeds of
crime, contrary to ss. 355(a) and 467.13 of the Criminal Code. He is further charged with another
count of possession of the proceeds of crime as well as five counts of possession for the purposes
of trafficking in cocaine and one count of obstruction of justice.

[576] These charges are very serious. The allegations involve alleged activities that cause
enormous damage to the lives of individuals, families and communities. Society has a
compelling interest in bringing charges of this nature to trial. Similarly, the Applicants face
enormous consequences if convicted: the gang charges facing Alcantara and Knapczyk alone
carry a maximum of 14 years in prison, while that facing Caines carries a maximum of life in

1
“The participation offence carries a maximum penalty of five years imprisonment, the commission offence
fourteen years imprisonment, and the instructing offence life imprisonment. The "instructing offence" carries the
maximum penalty of the three criminal organization offences implying that Parliament considered it to be the most
culpable offence” (para. 29).
 Page: 121

prison. These penalties demonstrate the compelling interests of both society and the Applicants
in an expeditious and fair trial.

5. Conclusions on balancing

[577] There is no empirical calculation to determine the tipping point at which the delay
becomes unreasonable and contrary to s. 11(b) of the Charter. Rather, it is a judicial balancing
act that strives to protect Charter enshrined security, liberty and fair trial interests; values that
uphold the rule of law; while at once honouring the important individual and community interests
in bringing a case of this complexity and gravity to trial in an expeditious fashion.

[578] The overall period of delay in this case is significant, although the case undoubtedly is a
complex one. In my view, the delay attributable to inherent and institutional delay has not been
excessive in the circumstances. The Crown clearly is responsible for almost 11 months of delay.
However, the Defence too has caused or contributed to some seven to ten months of delay.

[579] While the Applicants’ Charter interests have been engaged; their interests in liberty,
security and fair trial affected; and while they have suffered prejudice attributable to delay,
Caines in a disproportionately grave fashion, in the circumstance before me, on balance, I cannot
find there has been a breach of the right to trial within a reasonable time under s. 11(b) of the
Charter so that a judicial stay of proceedings ought to be granted under s. 24(1). The application
is dismissed.

Heard on the 27th day of September 2010 through to December 16, 2010.
Dated at the City of Edmonton, Alberta this 14th day of February, 2011.

S.J. Greckol
J.C.Q.B.A.
Appearances:

Dennis C. Hrabcak
Public Prosecution Service of Canada
for the Crown

A. Clayton Rice
Ouellette Rice
for the Accused John Reginald Alcantara
 Page: 122

Gregory C. Lazin
Gregory C. Lazin Professional Corporation
for the Accused Jeffrey Caines

Ajay Juneja (Juneja & Company) and Hasaan Jomha (Jomha Law Office)
for the Accused Alan Peter Knapczyk
 Page: 123

Appendix A
Other Related Matters in Which Mr. Chadi Acted for an Accused

A. R. v. Jeffery Mark Caines and Melanie Carole Berube

[1] Caines and Melanie Carole Berube (“Berube”) were jointly charged in Information No.
016328924P1, sworn on April 20, 2001, with possession of cocaine for the purpose of trafficking
and possession of more than $1,000 knowing all or part of it was the proceeds of crime. Caines
also was charged with trafficking in cocaine at or near Fort McMurray, Alberta.

[2] On April 25, 2001, the charges were read and both reserved election and plea. N. Assif of
Chadi & Co. appeared for both, apparently acting as agent in the case of Caines. The matter was
adjourned to May 28th.

[3] On May 28, 2001, Caines and Berube elected trial by judge alone. Both were represented
by Mr. Chadi, who suggested a date of October 1st for the preliminary inquiry. S.M.I. Bottern
appeared for the Crown.

[4] On August 29, 2001, P.T. Miranda (“Miranda”) appearing as agent for Mr. Chadi for both
accused, asked that the preliminary inquiry be re-scheduled for January 25, 2002. Ms. Bottern
appeared for the Crown. The new date was confirmed on October 1, 2001.

[5] On January 24, 2002, Judge Peck was advised by Mr. Chadi and Ms. Bottern that Mr.
Cleall would be a witness in the matter. Also, they advised that there was a tape, which the
Crown considered to be an important piece of evidence against Caines, that had not been
disclosed to the Defence. Ms. Bottern said the Crown would consent to an adjournment if the
Defence requested one. On January 25th, the matter was adjourned to February 6th to set a new
date for the preliminary inquiry. B. Jean appeared as agent for Mr. Chadi for Caines.

[6] On February 6th, with Mr. Chadi acting for both accused and Ms. Bottern appearing for
the Crown, the preliminary inquiry was set for June 11, 2002. Mr. Chadi had still not received the
added disclosure.

[7] On June 11, 2002, Mr. Moreau, appearing on the record for Caines, advised the Court that
Caines had been admitted to hospital the previous night and released in the morning. Mr. Moreau
asked that the matter be adjourned. Ms. Botten indicated the Crown did not want to split the
Information. Mr. Chadi appeared for Berube. The preliminary inquiry was set for December 3,
2002.

[8] Mr. Moreau acted for Caines and Mr. Chadi for Berube at the preliminary inquiry, held
on December 3, 2002. Both accused were ordered to stand trial on the possession of proceeds of
crime charge and Caines on the trafficking in cocaine charge. They were not committed to stand
trial on the charge of possession of cocaine for the purpose of trafficking.
 Page: 124

[9] Caines was indicted (Indictment No. 016328924Q2) on those two charges on January 21,
2003.

[10] On April 28, 2003, Mr. Chadi appeared for Caines but on June 27, 2003 he appeared as
agent for Mr. Moreau for Caines, when the matter was adjourned.

[11] On September 17, 2003, with Mr. Chadi acting for Berube and as agent for Mr. Moreau
for Caines, an adjournment was requested by the Defence, and granted to May 10, 2004.

[12] The committal of Berube on the charge of possession of proceeds of crime was quashed
by Ross J. on February 24, 2004 (R. v. Berube, 2004 ABQB 131).

[13] On May 7, 2004, Mr. Moreau made a telephone application for an adjournment of the
trial for personal reasons relating to him. He advised Burrows J. that Caines was prepared to
waive any resulting delay. Ms. Bottern asked whether Mr. Chadi might take over for Mr. Moreau
in acting for Caines since the committal against Berube had been quashed by Ross J. Ms. Bottern
noted an assignment of bail proceeds on the file which indicated a long-standing relationship
between Caines and Mr. Chadi. Mr. Moreau advised that Mr. Chadi was not prepared to proceed
with a jury trial within three days. The Crown advised on the record that it opposed the
adjournment.

[14] On May 10, 2004, with G. Marullo of Chadi & Co. appearing as agent for Mr. Moreau for
Caines, the matter was adjourned.

[15] On May 21, 2004, Mr. Chadi appeared as agent for Mr. Moreau for Caines. In speaking to
Slatter J. (as he then was), he explained that it had become clear to him before the preliminary
inquiry that there was going to be a conflict between Berube and Caines. As a result, Mr. Moreau
took over as counsel for Caines. He also said that a civilian witness attended at his office and
there may have been a conflict if he was going to testify on behalf of the Crown. However, he
indicated, and the Crown agreed, the witness was comfortable with Mr. Chadi cross-examining
him. The matter was adjourned.

[16] Mr. Chadi appeared for Caines before Slatter J. on September 1, 2004. He stated that
there had been a potential conflict he was involved in with Caines, but it would have been more
so if he would have represented both. However, Berube’s case had been resolved. He repeated
that a potential witness had been in his office and they’d spoken, so he backed off the case. He
advised that Caines wanted him to act on his behalf, but Mr. Moreau would still have to cross-
examine the Crown’s witness. He asked for the trial to be put over to February 14, 2005. The
Crown consented as a matter of quid pro quo as Mr. Chadi had been very helpful to Ms. Bottern
on that and other files.

[17] On November 26, 2004, Mr. Moreau appeared as agent for Mr. Chadi for Caines.
 Page: 125

[18] On February 14, 2005, jury selection took place before Park J. with Mr. Chadi and Mr.
Moreau acting for Caines. A mistrial was declared the next day. On April 18, 2005, during a pre-
trial conference in which Mr. Chadi and Mr. Moreau acted for Caines, the trial was set for
October 31st to November 4th. At another pre-trial conference on April 29, 2005, Mr. Moreau
appeared as counsel for Caines. Mr. Chadi appeared as co-counsel for Caines at a pre-trial
conference on May 20, 2005.

[19] On October 27, 2005, there was a stay of proceedings. The charges against Caines were
reactivated on October 25, 2006. At the first court appearance after the re-activation, on
December 21, 2006, M. Karout of Chadi & Co. appeared as agent for Mr. Chadi for Caines.

[20] On February 2, 2007, with Caines remanded in custody, the matter was adjourned to
March 2nd to set a trial date. M. Jakeman appeared as agent for Mr. Chadi for Caines.

[21] On March 30, 2007, Caines elected trial by judge alone. M. Jakeman appeared as agent
for Mr. Chadi for Caines. On January 11, 2008, a new trial date of September 29, 2008 was set
on consent of the Crown and Defence. Mr. Gill of Chadi & Co. was listed as counsel for Caines.
A bail hearing was held on January 31, 2008. Mr. Chadi appeared as counsel for Caines, who
was released on bail.

[22] At a pre-trial conference on February 22, 2008, A. Gill was listed as counsel for Caines.
Caines’ bail was revoked on that date and he was remanded into custody on Koker A. At an
appearance on May 2, 2008, M. Karout appeared as agent for Mr. Gill and Mr. Chadi for Caines.
On October 1, 2008, Caines was found guilty of both counts in the Indictment and sentenced to
48 months, with 18 months credit, leaving 30 months. A. Gill acted as Defence counsel.

B. R. v. Aaron Patrick McDonald and Letisha Dawn Peters

[23] McDonald and Peters were charged in Information No. 051089498P1, sworn on
September 16, 2005, with possession of cocaine for the purpose of trafficking, possession of
methylenedioxymethylamphetamine for the purpose of trafficking, possession of the proceeds of
crime and various weapons offences, all in or about Fort McMurray, Alberta.

[24] Mr. Chadi acted as Defence counsel for both accused at their show cause hearing.
Following joint submissions, they were granted judicial interim release on September 16, 2005.
Chadi & Company was listed as assignee of the peace bonds.

[25] On October 11, 2005, with Mr. Chadi appearing as counsel, the matter was adjourned to
November 22nd for election and plea. On November 22, 2005, both accused pleaded not guilty
and elected to be tried by a Provincial Court judge. The trial was set for May 24, 2006. M.
Karout appeared as agent for Mr. Chadi for both accused.
 Page: 126

[26] On February 23, 2006, Marche provided a sworn statement to the police identifying
himself as a significant cocaine trafficker in Caines’ network. He stated he received a call from
Caines on September 15, 2005 telling him that an anticipated shipment of cocaine had come in
and that he was to attend at McDonald’s residence to pick up his supply. He swore that he
attended at the residence as instructed and subsequently provided information to investigators
that resulted in the search warrant on the residence.

[27] On April 25, 2006, someone on behalf of Mr. Chadi gave notice both accused intended to
re-elect to be tried by a Queen’s Bench justice.

[28] On May 24, 2006, the accused re-elected to be tried by Queen’s Bench judge alone. The
matter was set over to June 29, 2006. Mr. Chadi continued as counsel for both.

[29] In replacement Information No. 060579927P1, sworn on May 17, 2006, McDonald and
Peters were charged with possession of cocaine, methylenedioxymethylamphetamine and
methamphetamine for the purpose of trafficking; possession of the proceeds of crime; and
various firearms offences.

[30] Mr. Chadi appeared in Provincial Court as counsel for the accused on June 28, 2006, at
which time all charges in Information No. 051089498P1 were withdrawn at the request of the
Crown. On the new Information, counts 2 to 11 were withdrawn as against McDonald at the
request of the Crown and he pleaded guilty to possession of cocaine for the purpose of
trafficking. Counts 1 and 3 to 11 were withdrawn in relation to Peters. She pleaded not guilty to
count 2 but guilty to the included offence of possession of methylenedioxymethylamphetamine.

C. R. v. Michael Francis Marche and Debbie Weiss

[31] Marche and Debbie Weiss (“Weiss”) were charged in Information No. 051383628P1,
sworn on November 24, 2005, with possession of cocaine for the purpose of trafficking at or 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.

[32] On December 15, 2005, Constable Gibson conducted an interview with Marche.

[33] A stay or proceedings was entered on December 20, 2005.

[34] In a sworn statement by Marche dated February 23, 2006, which was part of the 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
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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.

[35] Marche was asked by Corporal Anderson what made him call Mr. Chadi and whether
“Jeff” [Caines] had any influence in that regard. Marche answered that Jeff did have influence 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.”

[36] The police asked Marche if anyone had told him that money could be laundered through
Mr. Chadi. Marche said Jeff had spoken about money laundering and he assumed it was through
Mr. Chadi because “everything that Jeff does is through Jake as the lawyer,” but Mr. Chadi’s
name had never actually been mentioned in that regard.

[37] An RCMP internal document of member notes of Constable Gibson and Bannerholt dated
December 15, 2005 re debriefing reports contains the following notes:

- Jake Chadi-lawyer offers to launder cocaine money/proceeds for fee.

- fee was 30% of money laundered-money comes back in form of cheques from
law office.-1 option. explained by things such as inheritance.

- this only offered to certain clients of Chadi.

- clients do use Jake Chadi for money laundering.

D. R. v. Harry Armstrong Breakell, Jeremy William Cardinal and Melissa Dawn

Shephard

[38] Harry Armstrong Breakell (“Breakell”), Cardinal and Melissa Dawn Shephard
(“Shephard”) were charged in Information No. 060074796P1, sworn January 18, 2006,with
possession of cocaine, marihuana, cannabis resin and ecstasy for the purpose of trafficking, and
possession of the proceeds of crime, all at or near Fort McMurray, Alberta.

[39] The police allege that Cardinal was a trafficker in Caines’ network and the drugs found at
the residence where he was arrested were the property of Caines and being stored and distributed
for him by Cardinal.

[40] The accused were granted judicial interim release that day. Mr. Chadi acted as counsel for
all three. In recognizances taken by Cardinal and Shephard on January 19, 2006, Mr. Chadi was
shown as assignee. Cardinal and Shephard executed assignments of cash deposit in favour of Mr.
 Page: 128

Chadi on that date. Mr. Chadi also was shown as assignee in amended recognizances taken
January 24, 2006.

[41] On January 24, 2006, the matter was adjourned to February 14, 2006 for election and
plea. A. Gill appeared as agent for Mr. Chadi for Cardinal and Shephard and as counsel for
Breakell. On January 30, 2006, Cardinal and Shephard designated Mr. Chadi as counsel. The
matter was again adjourned on February 14th to March 14th. K. Wolff appeared on both dates as
agent for Ashok Gill for Cardinal and Shephard and as designated counsel for Breakell. The
matter was further adjourned to March 28th, on which date A. Gill appeared as agent for Mr.
Chadi for all three accused. Mr. Wolff was taken off the record for Breakell. On April 6, 2006,
Breakell designated Mr. Chadi as his counsel. Chadi & Co. was listed as assignee in Breakell’s
recognizance of that date. Breakell also assigned his cash deposit to Chadi & Co. on April 6th. On
July 11, 2006, the accused elected trial by Queen’s Bench judge alone. A. Gill again appeared as
agent for Mr. Chadi for the three accused.

[42] On August 14, 2006, Mr. Chadi filled out a statement for all three accused identifying
issues and witnesses for the preliminary inquiry.

[43] On December 21, 2006, W.C.C. Wanda appeared as agent for Mr. Chadi and Mr.
Jakeman for the three accused. The January 3rd preliminary inquiry was cancelled and the matter
was adjourned. On January 9, 2006, there was a Crown re-election to Indictment. A. Gill
appeared as designated counsel for the accused. On April 24, 2007, the file was brought forward
to cancel the preliminary inquiry. A. Gill attended as counsel of record for the accused. On
June 12, 2007, G. Smith appeared as agent for A. Gill for Breakell and as agent for Mr. Chadi for
the other two accused. A. Gill was shown as counsel of record for the three accused on June 26th
and December 11, 2007. The preliminary inquiry was held on January 7, 2008 and the accused
were ordered to stand trial. A. Gill acted as Defence counsel.

[44] Cardinal, Breakell and Shephard were indicted (No. 060074796P1) on January 28, 2008.
They were arraigned on February 1, 2008. A. Gill appeared as counsel. Cardinal pleaded guilty to
counts 1, 2 and 7. All counts against Breakell and Shephard were withdrawn.

E. R. v. Cal Derrick Gregoire

[45] In Information No. 061302865P1, sworn on or about October 8, 2006, Gregoire was
charged with assault, resisting a police officer, giving a false name to a police officer and
obtaining a taxi by fraud, all at or near Fort McMurray, Alberta.

[46] On November 6, 2006, Gregoire designated Ashok Gill as his counsel. J. Webb appeared
as agent for A. Gill for Gregoire on that date to reserve plea. On November 27, 2006, trial was
scheduled for March 14, 2007. On March 12th, G. Johnson appeared for G. Deboe, new counsel
for Gregoire. The trial date was cancelled and the matter was adjourned to March 28th. A. Gill
 Page: 129

was taken off the record on that date and Gregoire entered a plea of not guilty. The trial
subsequently was set for August 28th.

[47] On August 28, 2007, counts 1 and 4 were dismissed and Gregoire pleaded guilty on
counts 2 and 3. Count 5 was withdrawn.

F. R. v. Charles Weston Flight and John Norman Caines

[48] Flight and John Norman Caines were charged in Information No. 061444063P1, sworn
November 24, 2006, with conspiring together and with Caines, Marche, Josh Penton, Nicholas
Bela Van Den Hurk and persons unknown to traffic in cocaine between October 18 and 29, 2005
and with having in their possession proceeds of crime. Flight was further charged with
possession of cocaine and cannabis marihuana for the purpose of trafficking.

[49] Caines and Alcantara understand that the theory of the prosecution involving Flight and
John Caines is that on October 27, 2005, Flight was in possession of cocaine and marijuana for
the purpose of trafficking. His involvement in transporting these substances was in furtherance of
a conspiracy to distribute cocaine. Flight acted on behalf of Caines, the principal in a cocaine
distribution network responsible for supplying cocaine and other drugs to major traffickers in the
Fort McMurray region. Among Flight’s responsibilities was the gathering of funds from the
major distributors and transporting and delivering cocaine to these traffickers. John Caines, the
father of Jeffrey Caines, was involved in the conspiracy during the same time frame as Flight and
worked in concert with him in relation to the gathering and accounting of money from people in
Caines’ network of traffickers.

[50] On November 30, 2006, John Caines designated Mr. Chadi as his counsel.

[51] On December 1, 2006, M. Karout appeared as agent for Mr. Chadi for both accused, who
reserved their elections. John Caines was remanded into custody. A warrant was issued for the
committal of Flight as he had not complied with the conditions of his release. Flight was released
on recognizance taken on December 7, 2006. Chadi & Co. was listed on the recognizance as
assignee of the $7,500 cash bail deposit. On December 12, 2006, Flight designated Mr. Chadi as
his counsel.

[52] On April 23, 2007, both accused elected trial by Queen’s Bench judge alone. The
preliminary inquiry was set for March 8, 2008. A. Vretner appeared as agent for Mr. Chadi for
both accused.

[53] On June 14, 2007, Anderson P.C.J. wrote to Crown and Defence counsel confirming each
of their retainers. He referred to Mr. Chadi as counsel for Caines, Knapczyk, Flight and John
Caines. He wrote:
 Page: 130

Mr. Chadi has advised the Court that he has satisfied himself he is not acting in a
conflict of interest and as the consent of each of his four clients to act for the
other. The Crown is not alleging a conflict of interest which I understand to
include an implicit representation that the Crown does not foresee calling any one
of the four accused against any of the others, with some being charged on separate
informations.

[54] On February 20, 2008, Kerby P.C.J. granted a consent order releasing Flight from custody
on the charges in the Information.

[55] On February 22, 2008, the Crown addressed Anderson P.C.J. with a possible conflict of
interest in terms of Mr. Chadi representing both accused. The matter was adjourned so that both
accused could be present.

[56] On March 7, 2008, the Court was advised that the accused had seen independent counsel.
Mr. Chadi advised that he would not act for the accused at the preliminary inquiry. The matter
was adjourned so the accused could retain new counsel and to set a new date for the preliminary
inquiry. On March 10th, Wheatly P.C.J. seized himself on all preliminary applications relating to
the accused until the matter proceeded.

[57] The accused had still not retained new counsel by March 25, 2008. Mr. Chadi was
removed from the record as counsel for John Caines on March 31, 2008. A. Juneja appeared as a
friend for John Caines, although he had not yet been retained as counsel. The preliminary inquiry
was scheduled for January 5, 2009.

[58] On April 1, 2008, Flight, acting for himself, re-elected trial by Provincial Court judge and
pleaded guilty to count 1 on an agreed statement of facts. On September 15, 2008, Flight was
sentenced on count 1 and counts 2 to 4 were withdrawn at the request of the Crown.

[59] On November 24, 2008, the court was advised an agreed statement of facts had been
prepared in relation to the charges against John Caines. A. Juneja appeared as counsel for John
Caines. As a result, the time set for the preliminary inquiry was reduced to one week. Counts 1
and 2 against John Caines were withdrawn by the Crown on January 5, 2009.

G. R. v. Ricco King, Farhan Sattar, Kamran Sattar, Mark Andrew Hoskins and
Melissa Diane King

[60] Ricco King, Farhan Sattar, Kamran Sattar and Hoskins were charged in Information No.
061444048P1, sworn November 24, 2006, with conspiring together and with Caines, Marche and
persons unknown to traffic in cocaine between October 28, 2005 and December 17, 2005.
Melissa Diane King was charged with possession of proceeds of crime on November 23, 2005.
Hoskins was further charged with possession of the proceeds of crime between October 31, 2005
and November 23, 2005.
 Page: 131

[61] On December 1, M. Karout appeared as agent for Mr. Chadi for Hoskins. His plea was
reserved. On December 7, 2006, Hoskins signed an assignment of cash deposit of $10,000 to
Chadi & Co. He designated Mr. Chadi as his counsel on December 12th. Chadi & Co. was listed
as the assignee in the recognizance for Hoskins taken on that date. Mr. Chadi or an agent acting
for him appeared for Hoskins on January 29, 2007, February 26, 2007, April 23, 2007, May 31,
2007 and July 23, 2007. A change of venue application on the latter date was successful and the
matter was transferred to Calgary.

[62] On August 8, 2008, John James, counsel for Ricco and Melissa King, having reviewed
disclosure, wrote to Ms. D. Espeut of the Crown, with a copy to Mr. Chadi, raising the issue of
Mr. Chadi’s continuing representation of Hoskins. He asked why the Crown had not taken steps
to seek to remove Mr. Chadi given the obvious conflict of interest given his prior representation
of proposed Crown witnesses Marche and Weiss with respect to matters directly related to the
charges before the Crown. He suggested that he should be advised if the witnesses had waived
the conflict. If they had, he took the position that their waiver also involved waiving their
solicitor-client privilege with Mr. Chadi. In any event, he stated that Marche and Weiss’
statements to the Crown and others contained clear waivers of their solicitor-client privilege and
he advised he might seek production of Mr. Chadi’s file by way of a third party records
application unless the Crown requested and produced them. If the Crown waived the conflict,
Mr. James advised he would bring an application to have Mr. Chadi disqualified from
representing Hoskins.

[63] The preliminary inquiry was held on September 15 to 17, 2008. Mr. Chadi appeared as
counsel for Hoskins. Mr. Chadi advised Veldhuis P.C.J. that his office had had dealings with
Marche and Weiss, the two civilian witnesses who were to testify at the preliminary inquiry,
when they were accused persons in Red Deer and Fort McMurray. He indicated he was acting for
Caines in the Koker A prosecution in Edmonton. He informed the Court that in terms of that
prosecution, an independent counsel cross-examined Marche and Weiss on Caines’ behalf. He
advised that if Caines was called by certain of the accused to testify in the preliminary inquiry
before the Court, he would be in an untenable position. He said that the issue was raised by
Hoskins. Judge Veldhuis stated: [s]urely you had knowledge that these were potential witnesses,
because you would have received disclosure. It has been pre-trialed. You must have known.” Mr.
Chadi said he knew Marche and Weiss were witnesses in this matter and he would have no
difficulty in that regard. It was implied he did not realize Caines might be called by the Defence.
He indicated that Hoskins did not wish him to continue as his counsel. Hoskins addressed the
Court and said he became aware of the situation that morning.

[64] Mr. James clarified that Mr. Chadi previously had acted for Marche and Weiss with
respect to the alleged conspiracy and predicate offences before the Court and the Crown intended
to call them as witnesses. He offered his opinion that it would have been inappropriate for
independent counsel to cross-examine those witnesses. Also, he indicated that he did not believe
Marche and Weiss had waived the conflict. He said that at the preliminary inquiry on Koker A in
 Page: 132

Edmonton, Marche clearly felt uncomfortable with Mr. Chadi’s presence in the courtroom as he
described an incident where Mr. Chadi was discussing something with Caines. Mr. James
informed Judge Veldhuis that he raised the issue with the Crown some time ago. He submitted
that the conflict issues had been apparent for a long time and the Crown should have dealt with
those issues at the earliest opportunity. Mr. James also noted that Mr. Chadi represented Caines,
who was an unindicted co-conspirator, adding to the potential for conflict. He did concede the
conflict issue was not raised in any of the pre-trial conferences since there is a decision from
former Mustard P.C.J. that only the preliminary inquiry judge would have jurisdiction to deal
with the issue. Mr. James raised the prospect that Mr. Chadi could be called as a witness for the
Defence as there was an allegation by Marche that Mr. Chadi may have participated in the
conspiracy.

[65] Mr. Lord, representing Farhan Sattar, supported Mr. Chadi’s application to withdraw and
suggested Hoskins could not have been properly represented up to that point. He noted that
Marche was likely to give evidence against Hoskins and his own client. He pointed out that
Caines was the alleged recipient of all the drugs at issue in the proceeding. He also noted that
Corporal Anderson was the principal Crown witness and was the lead investigator and also
interviewed Marche and Weiss. He noted that Corporal Anderson put the suggestion to Marche
that there was a retainer with Mr. Chadi to launder the proceeds of the conspiracy. He suggested
the conflict arose from the time Mr. Chadi went on record as counsel for Hoskins.

[66] The Crown advised that going into the proceedings that day, she was aware only of the
Marche/Weiss issue and had been satisfied it could be dealt with as it had been in the Koker A
preliminary inquiry with the agreement of the Crown by having independent counsel cross-
examine them. She said it was clear from the bail hearings that these would be important
witnesses and it was also clear from disclosure. She indicated the Crown did not intend to call
Caines. However, she conceded if he was called by the Defence, it would put Mr. Chadi in a
conflict position.

[67] Judge Veldhuis granted Mr. Chadi’s application to withdraw as counsel on September 17,
2008. An application by Hoskins for an adjournment of the matter was granted on September 17,
2008 with respect to all accused.

[68] On December 12, 2008, Mr. Chadi is shown on the endorsements as counsel for Hoskins.
On December 29, 2008, S. Virk appeared for Hoskins but said Mr. Chadi was still on the record.
Hoskins, represented by Virk, pleaded guilty to counts 1 and 3 on February 5, 2009 and was
sentenced.