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Hussack v. Chilliwack School District No. 33 215

[Indexed as: Hussack v. Chilliwack School District No. 33]

Devon Hussack (Respondent / Appellant on Cross Appeal /Plaintiff) and The Board of School Trustees of School District

No. 33 (Chilliwack) (Appellant / Respondent on Cross Appeal /Defendant)

British Columbia Court of Appeal

Docket: Vancouver CA037283

2011 BCCA 258

Prowse, Neilson, Bennett JJ.A.

Heard: November 18, 2010

Judgment: June 7, 2011

Torts –––– Negligence — Duty and standard of care — Standard ofcare –––– When plaintiff was 13 years old he was hit in face with field hockeystick while playing game in his physical education class — Plaintiff developedconcussion that developed over time into serious somatoform disorder — Trialjudge found that teacher breached his duty of care by permitting plaintiff to playfield hockey without having progressively attained necessary skills, and that so-matoform disorder was caused by same accident — Trial judge awarded dam-ages in amount of $1,365,000 — Trial judge refused award for pain manage-ment program — Board appealed — Appeal allowed in part — There wasevidence upon which trial judge could rely to support her finding of breach ofstandard of care by teacher — Plaintiff had not attended any of classes off fieldhockey unit until day of accident — There were progressive building blocks thatplaintiff was not taught — There was no error in trial judge’s interpretation ofexpert evidence in concluding that but for accident somatoform disorder wouldnot have developed.

Torts –––– Negligence — Causation — Foreseeability and remoteness ––––When plaintiff was 13 years old he was hit in face with field hockey stick whileplaying game in his physical education class — Plaintiff developed concussionthat developed over time into serious somatoform disorder — Trial judge foundthat teacher breached his duty of care by permitting plaintiff to play field hockeywithout having progressively attained necessary skills, and that somatoform dis-order was caused by same accident — Trial judge awarded damages in amountof $1,365,000 — Trial judge refused award for pain management program —Board appealed — Appeal allowed in part — There was evidence upon whichtrial judge could rely to support her finding of breach of standard of care byteacher — Plaintiff had not attended any of classes off field hockey unit untilday of accident — There were progressive building blocks that plaintiff was nottaught — There was no error in trial judge’s interpretation of expert evidence inconcluding that but for accident somatoform disorder would not have developed.

WESTERN WEEKLY REPORTS [2011] 9 W.W.R.216

Remedies –––– Damages — Damages in tort — Personal injury — Specialdamages (pre-trial pecuniary loss) — Past loss of income — Children andstudents.

Remedies –––– Damages — Damages in tort — Personal injury — Prospec-tive pecuniary loss — Children and students.

Cases considered by Bennett J.A.:

Athey v. Leonati (1996), [1997] 1 W.W.R. 97, 140 D.L.R. (4th) 235, 81B.C.A.C. 243, 132 W.A.C. 243, 203 N.R. 36, [1996] 3 S.C.R. 458, 31C.C.L.T. (2d) 113, 1996 CarswellBC 2295, 1996 CarswellBC 2296, [1996]S.C.J. No. 102 (S.C.C.) — considered

Blackwater v. Plint (2005), 216 B.C.A.C. 24, 356 W.A.C. 24, 48 B.C.L.R. (4th)1, [2005] 3 S.C.R. 3, 258 D.L.R. (4th) 275, [2005] R.R.A. 1021, [2006] 3W.W.R. 401, 2005 SCC 58, 2005 CarswellBC 2358, 2005 CarswellBC2359, 35 C.C.L.T. (3d) 161, 46 C.C.E.L. (3d) 165, 339 N.R. 355, [2005]S.C.J. No. 59 (S.C.C.) — considered

Burdett v. Eidse (2011), 2011 BCCA 191, 2011 CarswellBC 916 (B.C. C.A.) —considered

Dudek v. Li (2000), 2000 BCCA 321, 2000 CarswellBC 1018, 138 B.C.A.C.112, 226 W.A.C. 112, 74 B.C.L.R. (3d) 341, [2000] 6 W.W.R. 209, 2M.V.R. (4th) 254 (B.C. C.A.) — considered

Duwyn v. Kaprielian (1978), 7 C.C.L.T. 121, 94 D.L.R. (3d) 424, 22 O.R. (2d)736, 1978 CarswellOnt 577 (Ont. C.A.) — referred to

Edwards v. Marsden (2004), 2004 BCSC 590, 2004 CarswellBC 947, [2004]B.C.J. No. 870 (B.C. S.C.) — referred to

Graham v. Rourke (1990), 1990 CarswellOnt 2676, 40 O.A.C. 301, 75 O.R. (2d)622, 74 D.L.R. (4th) 1, [1990] O.J. No. 2314 (Ont. C.A.) — considered

Hanke v. Resurfice Corp. (2007), 69 Alta. L.R. (4th) 1, 404 A.R. 333, 394W.A.C. 333, 2007 CarswellAlta 130, 2007 CarswellAlta 131, 2007 SCC 7,[2007] 4 W.W.R. 1, 45 C.C.L.T. (3d) 1, 278 D.L.R. (4th) 643, [2007] R.R.A.1, 357 N.R. 175, [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7 (S.C.C.) —considered

Housen v. Nikolaisen (2002), 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, 286N.R. 1, [2002] 7 W.W.R. 1, 2002 CarswellSask 178, 2002 CarswellSask179, 2002 SCC 33, 30 M.P.L.R. (3d) 1, 219 Sask. R. 1, 272 W.A.C. 1,[2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, REJB 2002-29758 (S.C.C.) —followed

Hughes v. Lord Advocate (1963), [1963] UKHL 1 (U.K. H.L.) — referred toJolley v. Sutton London Borough Council (2000), [2000] 1 W.L.R. 1082, [2000]

UKHL 31 (U.K. H.L.) — referred toKolesar v. Jeffries (1977), (sub nom. Joseph Brant Memorial Hospital v. Koziol)

[1978] 1 S.C.R. 491, 2 C.C.L.T. 170, (sub nom. Kolesar v. Joseph Brant

Hussack v. Chilliwack School District No. 33 217

Memorial Hospital) 15 N.R. 302, 77 D.L.R. (3d) 161, 1977 CarswellOnt448, 1977 CarswellOnt 465 (S.C.C.) — considered

Malcolm v. Broadhurst (1970), [1970] 3 All E.R. 508 (Eng. Q.B.) — referredto

Martin v. McNamara Construction Co. (1955), [1955] O.R. 523, [1955] O.W.N.537, 1955 CarswellOnt 63, [1955] 3 D.L.R. 51 (Ont. C.A.) — referred to

McKew v. Holland & Hannen & Cubitts (Scotland) Ltd. (1969), 1970 S.L.T. 68,[1969] UKHL 12, 8 K.I.R. 921 (U.K. H.L.) — considered

McLaren v. Bradstreet (1969), 113 Sol. Jo. 471 (Eng. C.A.) — consideredMillette v. Cote (1974), (sub nom. R. v. Cote) [1976] 1 S.C.R. 595, 51 D.L.R.

(3d) 244, (sub nom. Kalogeropoulos v. Cote) 3 N.R. 341, 1974 CarswellOnt254F, 1974 CarswellOnt 254, [1974] S.C.J. No. 155 (S.C.C.) — referred to

Mitchell v. Rahman (2002), 163 Man. R. (2d) 87, 269 W.A.C. 87, 2002 MBCA19, 2002 CarswellMan 77, 6 C.C.L.I. (4th) 52, 209 D.L.R. (4th) 621, [2002]4 W.W.R. 431 (Man. C.A.) — considered

Mustapha v. Culligan of Canada Ltd. (2008), 55 C.C.L.T. (3d) 36, 375 N.R. 81,293 D.L.R. (4th) 29, [2008] 2 S.C.R. 114, 2008 CarswellOnt 2824, 2008CarswellOnt 2825, 2008 SCC 27, 238 O.A.C. 130, 92 O.R. (3d) 799 (note),[2008] S.C.J. No. 27 (S.C.C.) — considered

Myers v. Peel (County) Board of Education (1981), 1981 CarswellOnt 579,[1981] 2 S.C.R. 21, 123 D.L.R. (3d) 1, 1981 CarswellOnt 612, 17 C.C.L.T.269, 37 N.R. 227, [1981] A.C.S. No. 61, [1981] S.C.J. No. 61 (S.C.C.) —considered

Nader v. Urban Transit Authority (1985), 2 N.S.W.L.R. 501 (New South WalesC.A.) — referred to

Samuel v. Levi (2008), 2008 CarswellBC 2281, 2008 BCSC 1447 (B.C. S.C.) —referred to

Thornton v. Prince George Board of Education (1976), 73 D.L.R. (3d) 35, 1976CarswellBC 214, [1976] 5 W.W.R. 240 (B.C. C.A.) — followed

Varga v. John Labatt Ltd. (1956), [1956] O.R. 1007, 6 D.L.R. (2d) 336, 1956CarswellOnt 87 (Ont. H.C.) — referred to

White v. Chief Constable of South Yorkshire Police (1998), [1998] 3 W.L.R.1509, [1999] 2 A.C. 455, [1999] 1 All E.R. 1, (sub nom. Frost v. ChiefConstable of South Yorkshire Police) [1998] H.L.J. No. 45 (U.K. H.L.) —referred to

Woelk v. Halvorson (1980), [1980] 2 S.C.R. 430, [1981] 1 W.W.R. 289, 1980CarswellAlta 317, 14 C.C.L.T. 181, 24 A.R. 620, 114 D.L.R. (3d) 385, 33N.R. 232, 1980 CarswellAlta 277, [1980] S.C.J. No. 82 (S.C.C.) — referredto


Yoshikawa v. Yu (1996), 28 C.C.L.T. (2d) 217, 21 B.C.L.R. (3d) 318, 73B.C.A.C. 253, 120 W.A.C. 253, [1996] 8 W.W.R. 239, 1996 CarswellBC614, [1996] B.C.J. No. 623 (B.C. C.A.) — referred to

APPEAL by plaintiff from judgment reported at Hussack v. Chilliwack SchoolDistrict No. 33 (2009), 2009 CarswellBC 1679, 2009 BCSC 852, [2009] B.C.J.No. 1271, 97 B.C.L.R. (4th) 330, 70 C.C.L.T. (3d) 98 (B.C. S.C.), awardingplaintiff damages for injuries sustained.

D.W. Yule, Q.C., C.L. Forth for AppellantR.D. Gibbens for Respondent

Bennett J.A.:

I. Overview1 On April 17, 1998, Devon Hussack, age 13 years, was hit in the face

with a field hockey stick while playing the game in his physical educa-tion class. He suffered a concussion which developed over time into aserious somatoform disorder. (A somatoform disorder has been describedas a psychiatric illness in which individuals complain of physical symp-toms that have no underlying physiological basis and which are pre-sumed to arise from psychological factors.) He has significant difficul-ties, which he believes are physical in origin, but in reality originate inthis mental disorder.

2 As much of the evidence refers to Devon Hussack and his father, Iwill refer to the respondent as Devon and to his father as Mr. Hussack.

3 The trial judge found that the P.E. teacher breached his duty of careby permitting Devon to play field hockey without having progressivelyattained the necessary skills. She found that the somatoform disorder wascaused by the accident. The trial judge awarded damages in the sum of$1,365,000. The Board of School Trustees of School District No. 33(Chilliwack) (the “Board”) appeals this judgment. Devon cross-appealsthe decision of the trial judge to refuse an award of $17,850 for a painmanagement program.

4 I would allow the appeal in part. I would reduce the past wage lossaward of $200,000 to $150,000 and I would reduce the future income-earning capacity award to $785,000.

5 I would dismiss the cross-appeal.

Hussack v. Chilliwack School District No. 33 Bennett J.A. 219

II. Background6 Devon was born on January 10, 1985, and is now 26 years old. Devon

is an only child. Mr. Hussack is now approximately 60 years old.Devon’s mother passed away from cancer in 2006. Mr. Hussack has amilitary pension for ten years’ service. Mrs. Hussack worked at varioustypes of employment and was working as a grocery clerk when the acci-dent occurred.

7 Mr. Hussack felt Devon was a miracle child because his birth wasunexpected as his parents had given up hope of having a child, and hewas born on the same day as Mr. Hussack’s late father. Mr. Hussackassumed the role of full-time stay-athome father.

1. School Attendance8 Devon was part of a dual entry kindergarten program, so he started

school in January 1990 and attended half days until June 1990. He thenreturned in September 1990 for a second year of full-day kindergarten.From the commencement of kindergarten, Devon’s attendance was poor.He had 17 absences in the first term of kindergarten. In the second year,he missed 21.5 days. He was also frequently late for class.

9 Unlike other parents, Mr. Hussack would not leave the classroomwhen he brought Devon to school. He often hovered and lingered in theclassroom. If he left the classroom, he would peer through the windowsor sit in his van in the parking lot watching the activity in the play-ground. He would take Devon for lunch every day, usually to a fast foodrestaurant, rather than allowing him to eat lunch with the other children.

10 The same pattern of behaviour continued when Devon started Grade1. He was frequently late, and Mr. Hussack often disrupted the classroomwhen he arrived, sometimes up to two hours after class had commenced.The Grade 1 teacher consulted the school counsellor, and Devon’s par-ents were told they needed to give him some space and allow him to takepersonal responsibility. Nothing changed.

11 In the spring of Grade 1, another boy pushed Devon down in theplayground. Mr. Hussack, who had been watching, ran over and accostedthe child, which resulted in that child’s parents complaining to the princi-pal and Mr. Hussack offering an apology.

12 At the end of Grade 1, the children attended a swimming party at alocal outdoor pool. A parent complained to the teacher that a man was inthe bushes behind the fence surrounding the pool taking pictures of the


children. It was Mr. Hussack. The teacher told him to stop taking photos.Mr. Hussack became angry and reported the teacher to the principal.

13 Devon’s elementary school years continued in the same pattern. Hefrequently missed school and was often late. His father continued, in theeyes of the teachers, to over-parent Devon and not give Devon an oppor-tunity to grow and develop on his own. Father and son even sported thesame mullet hair style, with a long ponytail in the back.

14 The trial judge found that Mr. Hussack had an inflated idea ofDevon’s abilities. He tried to insist Devon take Grade 7 mathematicswhen he had not completed Grade 6 math. The teachers began to suspectthat Mr. Hussack was doing Devon’s homework and decided to markonly what he completed in the classroom.

15 Devon’s Grade 6 teacher was, like his previous teachers, concernedfor his emotional development. She said that he was a “thoughtful, brightstudent with a good sense of humour and an apparent desire to please histeachers”. However, she was concerned about the close relationship be-tween father and son, and noticed that Devon seemed to be “dependenton his father’s thoughts and opinions for everything he decided”.

16 Devon transferred to Vedder Middle School for Grades 7, 8 and 9.The school principal considered Devon to be a “regular 12-year-old stu-dent”. However, he recalled Mr. Hussack being around the school all ofthe time, daily sharing lunch with Devon in his van. He described therelationship between father and son as smothering Devon.

17 His absences and late attendance in Grade 7 were so significant thatDevon was included on a list for the District Secondary School counsel-lor as there was a concern Devon might not be able to complete a regularhigh school diploma. Devon missed 38% of his Grade 7 classes by thedate of the accident in April 1998. He did not attend the balance of Grade7, but was promoted to Grade 8.

18 By November 1998, Devon’s absences were so great the school rec-ommended a hospital homebound program for Devon. This would allowhim to complete Grade 8 at home, with a teacher liaising with the schooland bringing his assignments to him. The Hussacks agreed to this plan,but by March 1999, it had failed. The Hussacks were rarely home whenthe teacher came by, despite her confirmation of appointments in ad-vance. They did not return her phone calls to reschedule appointments.On one occasion, the teacher heard someone inside the house, but theperson refused to answer the door. By April 1999, it was decided thatDevon would do his schoolwork by correspondence.


19 Devon enrolled in Grade 9 at Vedder Middle School, but missed 56of the first 65 days. The school repeatedly contacted Mr. Hussack regard-ing Devon’s absenteeism, his failing marks, and his failure to pick upassignments. The Hussacks blocked the school’s calls at one point andcontact was achieved through a grandparent. Devon was withdrawn fromschool by the principal as of December 1999. He completed a fewcourses by correspondence, but has not completed the Grade 10 curricu-lum. His school reports indicated that when he did attend, he was gener-ally a good student.

2. The Accident20 The accident occurred on April 17, 1998. Devon was in Grade 7, and

had missed 51.5 of 136 school days. As mentioned, his absenteeism ratewas 38% and he was at risk of failing Grade 7. In addition, he had alsobeen late 30 times. A meeting was arranged with the school principal,Mr. MacPhee, who was Devon’s home room teacher and P.E. instructor,Mr. Hussack, and Devon. In order to convince Devon to attend P.E.class, Mr. MacPhee told him that the class was finishing a segment onfield hockey and suggested that Devon would enjoy the game. Mr.MacPhee was aware that Devon had played ice hockey, roller hockey,and floor hockey. Devon had never played field hockey. Mr. MacPheetold Devon that it would be a good opportunity for him to participate inP.E. and potentially receive a passing grade.

21 Mr. MacPhee believed that Devon’s hockey skills would carry overinto playing field hockey. It was his belief that the level of field hockeythe students were learning was very basic and there was no need forDevon to learn “progressive skills” before he played in a game.

22 Mr. MacPhee had already taught the class four to five sessions of thefield hockey unit. Students were taught basic field hockey skills and therules of the game by performing drills and playing scrimmages. Mr.MacPhee imposed four basic rules. The first two were not using the backpart of the stick, only the flat part, and not using their feet to touch theball, which are both standard field hockey rules. The other two rules thatMr. MacPhee imposed were for safety reasons: not to lift their sticksabove their knees, and not to “check from behind”. What was meant bythis term was that the player could not approach an opposing player frombehind to try to dispossess that player of the ball. At the commencementof each class, the students were reminded of these four rules. There werealso no goalies, which was a further safety measure.


23 On the date of the accident, Mr. MacPhee encouraged Devon to jointhe P.E. class, which he did. This class was the conclusion of a three-week field hockey unit. Devon had not attended any of the previous clas-ses. Mr. MacPhee had the students warm up, then he placed them on fourbalanced teams and reviewed the four basic rules. The students com-menced a round-robin tournament, with all four teams playing at thesame time, which was accomplished by dividing the field in two and us-ing the widths for the ends. Mr. MacPhee stood on the sidelines betweenthe two playing areas to observe the students.

24 During the second game, one of the female students made a break-away towards the goal. As she approached the goal, she raised her stickto take a shot. Unbeknownst to her, Devon had run up behind her in anattempt to check her from behind. On the backward swing, she struckDevon with her field hockey stick in the face just above the bridge of hisnose.

25 Devon fell to the ground, crying and holding his face. Mr. MacPheeimmediately attended to him, procured some ice for his nose and tookhim to the school office. Mr. Hussack was called. When he arrived at theschool, he decided to take Devon to the hospital.

26 Devon was diagnosed with a mild concussion, lacerations, and exten-sive soft tissue bruising with swelling over the bridge of his nose, fore-head, and both eyes.

27 Although a normal recovery was anticipated, Devon’s condition be-came much worse over time, eventually developing into the serious so-matoform condition from which he still suffers.

28 The trial judge reviewed the details of Devon’s medical history post-accident as set out below. The history is relevant to the issues on appealand, although long, is worth repeating:

[95] On April 23, 1998 he visited his family doctor’s office com-plaining of a headache. This accords with Devon’s own recounting ofhis history to both Dr. Foti and Dr. Ong, advising that he developedheadaches approximately one week after the incident.

[96] On May 6, 1998 he attended the local hospital Emergency de-partment complaining he had suffered a constant frontal headache forthe last 2-3 days associated with nausea, no vomiting and poor sleep.He was diagnosed with a headache and a resolving hematoma overthe bridge of his nose.


[97] On May 21, 1998, he once again returned to his family doctorcomplaining of constant frontal headaches (which varied in inten-sity), drowsiness and a sensitivity to light.

[98] By May 26, 1998, when he next attended the Emergency depart-ment, his symptoms had evolved to now include complaints of weak-ness, tiredness, altered concentration, sleep disruption, and mild pho-tophobia. While Devon denied any stress which might account forhis symptoms, the Emergency physician believed the headachesmight be tension headaches, reflecting some stress at school.

[99] On attending the family doctor on May 29, 1998, Devon nowcomplained that his frontal headaches had increased and that he wassuffering difficulties with both memory and balance. He admittedthat he was being teased a lot at school, especially regarding his fa-ther who some students labelled a “pedophile” since he alwaysseemed to be lurking about the school and on occasion taking photosor films of the students. The attending physician’s differential diag-nosis included possible mild concussive symptoms and possiblestress related to teasing and muscle traction headaches.

[100] In the interim, Hussack Sr. had been investigating various med-ical internet sites and had become convinced Devon was brain dam-aged. Impressed with his earlier encounters with Dr. Fitzpatrick inthe hospital Emergency, Hussack Sr. asked Dr. Fitzpatrick whetherhe would take both him and Devon on as new patients. He agreed.On attending his office on June 3, 1998, Devon and Hussack Sr. nowreported a much expanded list of Devon’s symptoms: a shaking ofthe hands which had begun the night before; sore eyes; lost concen-tration; sensitivity to loud noises; improvement in dizziness; colourchanges in and pain across the forehead; and fluctuating body tem-peratures (See Exhibit 1, Tab 3, p. 15).

[101] While Dr. Fitzpatrick did not believe there was any serious un-derlying pathology, over the ensuing months he acceded to HussackSr.’s continuing requests for Devon to be referred to various special-ists beginning with Dr. MacFayden, a neurologist, in early June1998. By this point Devon was complaining of some soreness in hishead and an internal feeling that everything in his body was“twitching”.

[102] Despite Dr. MacFayden’s reassurance, Hussack Sr. insisted ona further assessment, and again Dr. Fitzpatrick complied with the re-quest, this time referring Devon to Dr. Caissie, a paediatrician. In thecourse of Dr. Caissie’s examination in July 1998, Devon repeated thesame long list of complaints, which now also included headaches as-sociated with a blue discolouration in his forehead, hyperacusis (ab-


normal acuteness of hearing) and a tremor in his hands. The exami-nation was normal save for a very mild tremulousness in the handswhen his fingers were hyperextended.

[103] Further referrals followed to: Dr. Low Ying, a paediatrician;Dr. Commerford, Dr. Juliette Hukin, a paediatric neurologist, and Dr.Michael Hayman, a neurology fellow at B.C. Children’s Hospital. Bythis point Devon’s list of complaints had expanded to include achingin the joints. In Dr. Hukin’s opinion Devon was exhibiting somepost-concussive features superimposed on migraines in a setting of apositive family history of migraines. She recommended blood andurine tests and emphasized the need for a psychological consultation(Exhibit 1, Tab 3, pages 63-66).

[104] Hussack Sr. then insisted an MRI was necessary and again Dr.Fitzpatrick complied, referring Devon to Dr. Chan, a neurosurgeon,for the initial neurological consultation. He examined Devon in Octo-ber 1998 and concluded he had suffered a mild cerebral concussion,with the development of a post-concessional [sic] syndrome. Hereassured Devon and his father the degree of concussion was verymild and that an MRI would not be approved given the negative CTscan and in the absence of any neurological finding.

[105] Throughout the balance of that year and the years which fol-lowed, Devon began to complain of new and ever worsening symp-toms: visual distortions in November 1998; pain in the center of hishead, sore eyes, a numb forehead and abnormal smells in December1998; constant tremors throughout his entire body, abnormal headsnapping and twitches, and stuttering and mumbling beginning inJanuary 1999; constant generalized muscle aches throughout hisbody beginning in November 1999 and worsening throughout 2000-2001; and finally episodes of severe chest pain commencing in 2000.

[106] Dr. Fitzpatrick, who continues to this day to act as the Hussackfamily doctor, expressed his frustration dealing with the Hussacks,but most particularly Hussack Sr. during this period. Hussack Sr.often attended his office alone, pressing his wish that Dr. Fitzpatrickpursue yet another line of medical investigation. When Devon at-tended in the office, Hussack Sr. was also usually present during anyexamination, often prompting Devon in his recall of symptoms.

[107] While Dr. Fitzpatrick did his best to paint a positive picture ofHussack Sr., describing him as an “extremely caring” parent whowas excessively, although not obsessively interested in addressinghis son’s complaints, he admitted in cross examination that he didconsider the father’s relentless investigation efforts to be “obsessive”in nature. He admitted Hussack Sr. was a difficult patient, one who


historically disrupted and upset his office staff with continual phonecalls.

[108] Although unrelenting in his demands of Dr. Fitzpatrick, Hus-sack Sr. did little to reciprocate in following Dr. Fitzpatrick’s owninstructions. Dr. Fitzpatrick’s repeated suggestions that Devon pur-sue psychological treatment were dismissed.

[109] Dr. Fitzpatrick agreed, as Dr. Hukin had recommended as earlyas the fall of 1998, that some psychological treatment for Devon wasrequired. Hussack Sr. repeatedly rejected these recommendations,dismissing any suggestion Devon’s symptoms might have a psycho-genic component. He also rejected Dr. Fitzpatrick’s recommenda-tions that anti-depressant medication be attempted.

[110] However by December 1998, even Hussack Sr. was willing forDevon to begin anti-depressant medication. Devon had recently ex-hibited histrionic behaviour in the Emergency department of the localhospital and the Emergency physician had recommended anti-depres-sant medication. While Devon apparently commenced a course ofanti-depressant medication, the medication was discontinued, al-though it is not clear why.

[111] At the recommendation of a Dr. Hahn, the Hussacks were re-ferred to Mr. John Simpson, to seek assistance. Mr. Simpson, oncethe Director of Rehabilitation for ICBC, was retired and working as aprivate consultant in the Fraser Valley area. He visited with the Hus-sacks on several occasions and recommended they seek a referral toDr. Ancill, a local psychiatrist who apparently specialized in thetreatment of traumatic head injury patients. At Hussack Sr.’s request,Dr. Fitzpatrick obliged and made the necessary referral to Dr. Ancill.

[112] Devon and his father attended Dr. Ancill’s office on May 11,2000. Unfortunately, Devon’s first and main opportunity to be ex-posed to a proper psychiatric assessment failed. No fulsome historyof the family dynamics was obtained or recorded by Dr. Ancill. Dr.Ancill admitted that he approached the matter from a “biological”perspective. He diagnosed Devon as having suffered a traumaticbrain injury and prescribed Topomax to address his irritability. Henoted Hussack Sr.’s refusal to consider any “mind altering” drugsuch as Prozac. He recommended Devon return for assessment in onemonth’s time. Hussack Sr. immediately investigated the drug pre-scribed. Convinced that Dr. Ancill had prescribed “mind alteringdrugs” for his son, Hussack Sr. refused to fill the prescription anddiscontinued any further treatment for Devon under Dr. Ancill’s care.

[113] In early 2000, Hussack Sr. told Dr. Fitzpatrick he wished totreat Devon’s pain complaints with his own Tylenol 3 medication


(apparently prescribed for Hussack Sr.’s own back pain). Despite Dr.Fitzpatrick’s refusal to prescribe the medication to Devon and hisspecific instructions that Hussack Sr. not provide Devon with hisown supply, Hussack Sr. did so. He provided Devon with three Tyle-nol 3 tablets per week, progressing to four pills per day by February2005. Finally by July 2005, aware of this drug abuse issue, Dr. Fitz-patrick attempted to convince Hussack Sr. to try Devon on a differentnon-caffeinated drug although he appeared unclear as to whether thishad occurred or not. He remains concerned at the continuing highlevels of Tylenol 3 which Devon consumes on a daily basis.

[114] After much pressing by Hussack Sr., in early 2001, Dr. Fitzpat-rick arranged for Devon to return to Dr. Ong at St. Paul’s Hospitalfor a re-referral. The Hussacks missed the scheduled appointmentleading Hussack Sr. to write a letter of complaint to the College ofPhysicians and Surgeons (see Tab 3, page 133-34). In defence of Dr.Ong, Dr. Fitzpatrick wrote to the College, stating that there had beenendless medical investigations and that all doctors had gone “beyondthe call of duty” attempting to treat Devon.

[115] Devon’s condition has not improved over the years. If any-thing, he has become steadily more and more deconditioned as he hasbecome increasingly homebound. In 2004 he applied for and, withDr. Fitzpatrick’s support, was found eligible for a disability pension.Since 2005 he has only attended his doctor once or twice a year andhas not been compliant in adhering to any medications prescribed.No counselling or psychological or psychiatric treatment has everbeen pursued, despite Dr. Fitzpatrick’s encouragement.

29 When Devon attended Dr. Hunt, a neurosurgeon, for an examinationin 2008, he had to be brought from Chilliwack to Dr. Hunt’s office inNorth Vancouver by ambulance because he was in too much pain to sitin a car for the length of the drive.

30 The trial judge found that before the accident Devon’s teachers wereunanimous that while he had an unhealthy relationship with his father, hewas a pleasant, bright boy with no major problems other than his chronicabsenteeism from school. At the time of trial, Devon spent most of histime in his room either watching television or on his computer. His fathermakes his meals for him. He has no set schedule for sleeping or waking.He has difficulty getting around. His father looks after most of his needs.As Devon told the trial judge, “my life is a living hell”.

III. Issues on Appeal31 The Board submits that the learned trial judge erred:


1) In finding that Mr. MacPhee was negligent and failed to meet thestandard of care of a reasonable teacher;

2) In finding that the accident caused the somatoform disorder;

3) In finding that the actions of Mr. Hussack did not amount to anovus actus interveniens which broke the chain of causation; and

4) In her assessment of damages.32 Devon submits that the learned trial judge erred in failing to give an

award for a pain management program.

IV. Discussion33 The elements of a successful negligence action are:

i) That the defendant owed the plaintiff a duty of care;

ii) That the defendant’s behaviour breached the standard of care;

iii) That the plaintiff sustained damage; and

iv) That the damage was caused, in fact and in law, by the defen-dant’s breach.

See: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2S.C.R. 114 (S.C.C.) at para. 3.

34 It is accepted that Mr. MacPhee owed a duty of care to Devon.

1. Breach of the Standard of Care35 Both sides accept that the standard of care required of Mr. MacPhee

is that set out in Thornton v. Prince George Board of Education (1976),73 D.L.R. (3d) 35 (B.C. C.A.), at 57 -58. The Court held that the stan-dard of care is that of a “reasonable and careful parent, taking into ac-count the judicial modification of the reasonable-and-careful parent testto allow for the larger-than-family size of the physical education classand the supraparental expertise commanded of [the teacher].” Further-more, the Court held that permitting a student to participate in a physicalactivity is not negligent:

... (a) if it is suitable to his age and condition (mental and physical);(b) if he is progressively trained and coached to do it properly andavoid the danger; (c) if the equipment is adequate and suitably ar-ranged; and (d) if the performance, having regard to its inherentlydangerous nature, is properly supervised.


36 This standard was adopted in Myers v. Peel (County) Board of Edu-cation, [1981] 2 S.C.R. 21 (S.C.C.) at 29, as a “statement ... setting forthappropriate considerations”. It was not accepted as a “code”.

The trial judge’s findings37 The trial judge set out the applicable test in Thornton in her reasons

for judgment.38 The only issue was whether Mr. MacPhee breached the standard of

care by allowing Devon to participate in the class without having at-tended any of the previous classes.

39 Mr. MacPhee testified that he was aware Devon had not taken any ofthe classes in the field hockey unit before he attended the final class onApril 17. However, he knew that Devon had played ice hockey, floorhockey, and roller hockey. In his view, it would be safe for Devon toplay field hockey because the other hockey skills he had were transfera-ble, including passing, carrying, and receiving the ball. In other words,he did not need to go through the progressive skill steps because he al-ready had skills in this area.

40 Both the plaintiff and defendant called expert witnesses who gaveopinions on this point.

41 The plaintiff called Ms. Gail Wilson, who is an instructor in theHuman Kinetics program at the University of British Columbia. She hasbeen involved in field hockey since the mid-1960s and, amongst otherthings, was the assistant Olympic coach for the women’s national fieldhockey team for both the Seoul and Los Angeles Olympics. She is one oftwo master course facilitators for Field Hockey Canada. The defendantdid not contest her qualifications to provide expert opinion evidence.

42 Ms. Wilson opined that Devon should not have been allowed to par-ticipate in the game because he had not been progressively taught theactivity. In her opinion, telling the players not to raise their sticks orcheck from behind was not sufficient. In her view, the players needed tospend time playing progressive games where they could practice “un-learning” certain habits and not doing prohibited acts.

43 She opined that Devon’s ice hockey skills were not transferable, andin fact made him more vulnerable. As an ice hockey player, he would befree to approach a player from behind, with full protective equipment, inorder to dispossess that player of the puck. In her opinion, progressive


skill teaching was even more important for ice hockey players becausethey had to “unlearn” their ice hockey skills.

44 Ms. Longmore was called as an expert by the Board. Ms. Longmoreis a high school P.E. teacher who has been teaching field hockey since1992. She is a qualified field hockey coach and umpire. She has playedthe game for 43 years.

45 Ms. Longmore agreed with Mr. MacPhee that Devon’s ice hockeyskills would carry over into playing field hockey. Both Ms. Wilson andMs. Longmore agreed that there was a great deal of cross-over in skillsbetween the two sports, but they parted company on the issue of check-ing/tackling techniques. However, in cross-examination, Ms. Longmoreagreed that trying to dispossess a player of a puck or a ball was a danger-ous play for both games. She pointed out that Devon had been told not tocheck from behind. In her view, a student could not be taught not tocheck from behind with progressive instruction: it was simply a rule tobe followed. She did not have a “no check from behind rule” in her clas-ses, but agreed that it was a good safety rule and intended to incorporateit in future classes.

46 The trial judge accepted the opinion of Ms. Wilson that it was unsafefor Devon to participate in the class without having the building blocksin place. For that reason, she concluded that Mr. MacPhee breached thestandard of care by allowing Devon to participate in the class withouthaving attended any of the previous classes.

Position of the parties47 The Board submits that the trial judge erred in finding that Devon

was not taught the progressive building blocks of field hockey becausethere were no building blocks related to not checking a player from be-hind. It submits that the trial judge erred in accepting the opinion of Ms.Wilson over that of Ms. Longmore and the other teachers who testifiedon behalf of the Board.

48 The respondent submits that the Board is asking this Court to reweighthe evidence and substitute our opinion for that of the trial judge. Therespondent submits that there was evidence on which the trial judgecould base her finding, and therefore it is not reviewable by this Court.

Analysis49 The standard of review applicable to a trial judge’s determination of

whether or not the standard of care was met by a defendant was dis-


cussed in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235(S.C.C.):

[37] ...In our view, it is settled law that the determination of whetheror not the standard of care was met by the defendant involves theapplication of a legal standard to a set of facts, a question of mixedfact and law. This question is subject to a standard of palpable andoverriding error unless it is clear that the trial judge made some extri-cable error in principle with respect to the characterization of thestandard or its application, in which case the error may amount to anerror of law.

50 An appellate court will not interfere with a finding of fact if there issome evidence upon which the trial judge could rely to reach his or herconclusion. See: Housen v. Nikolaisen, supra, at para. 1. The fact that acourt of appeal would have preferred to accept other evidence to the con-trary, leading to a different finding, will not justify a reversal of the trialjudge’s conclusion. See: Woelk v. Halvorson, [1980] 2 S.C.R. 430(S.C.C.) at 436.

51 The privileged position of the trial judge to find facts extends to thetestimony of expert witnesses. In Kolesar v. Jeffries (1977), [1978] 1S.C.R. 491 (S.C.C.), the Supreme Court of Canada held that “it is not thefunction of an appellate court to reconsider that evidence whether it beupon facts or a matter of professional opinion and come to a differentconclusion, unless it could be shown that the evidence reasonably couldnot result in justifying the conclusion made by the trial judge.” (At 504.)

52 The evidence on the issue is that Devon did not attend any of theclasses of the field hockey unit until the day of the accident. At the be-ginning of each class the students were reminded not to raise their sticksand not to check from behind. The students were given drills to practiseduring which they would be corrected for mistakes. These were progres-sive building blocks which Devon was not taught. Ms. Wilson opinedthat telling Devon once that he could not raise his stick or check frombehind was not sufficient. She opined that the hockey skills were nottransferable with respect to checking, and in fact, hindered his ability toplay the game safely.

53 Therefore, there was evidence upon which the trial judge could relyto support her finding of a breach of the standard of care by Mr.MacPhee. She stated the correct test for the standard of care. There is nopalpable or overriding error apparent in her reasons which would leadthis Court to interfere with that finding.


2. Causation54 The losses or injuries sustained by the plaintiff are not compensable

unless they were caused in fact and in law by the defendant’s negligentconduct. In order to establish causation, the plaintiff must demonstratefirst, that the damage was caused in fact by the conduct of the defendant,and second, that the conduct of the defendant was a proximate cause ofthe loss, or in other words, that the damage was not too remote from thefactual cause. This is referred to as causation in law. The remoteness in-quiry assumes that but for the defendant’s wrongful act, the plaintiff’sloss would not have occurred, but places legal limits on the defendant’sliability. See: S.M. Waddams, The Law of Damages, looseleaf (Toronto:Canada Law Book, 1991-) at para. 14.450.

(a) Cause in fact55 Cause in fact is determined by answering the question: but for the

defendant’s negligent act or omission, would the plaintiff’s injuries haveoccurred? See: Hanke v. Resurfice Corp., 2007 SCC 7 (S.C.C.) at para.21.

56 It must also be remembered that a defendant is not excused from lia-bility simply because his actions are not the sole basis for causation andthere are other causal factors for which he is not responsible which alsohelped produce the harm. Athey v. Leonati, [1996] 3 S.C.R. 458 (S.C.C.)at paras. 17-19.

The trial judge’s findings57 The trial judge applied the “but for” test of causation and referred to

Resurfice Corp., supra, at para. 21 and she concluded that the cause infact of Devon’s injuries was the blow to his head. She found that “butfor” the head injury, the somatoform disorder would not have occurred.She said this:

[122] On a review of all of the evidence I am satisfied the plaintiffhas proven on a balance of probabilities that the blow to the head(resulting from the defendant’s negligence) was indeed the triggerwhich set in motion the sequence of events leading to the develop-ment of Devon’s somatoform disorder. I find that but for the headinjury and the original resulting symptoms as well as the otherswhich followed, the somatoform disorder would not have developed.


Position of the parties58 The appellant agrees the blow from the field hockey stick caused a

concussion and post-concussion syndrome. It maintains, however, thatthose injuries played no role in causing the somatoform disorder, whichit says is a separate condition arising entirely from Mr. Hussack’s bizarreand pathological behaviour toward Devon. It submits that the trial judgemisinterpreted the evidence of its witness, Dr. O’Shaughnessy, when sheconcluded that the accident caused the damage.

59 The conduct of Mr. Hussack on which the appellant relies includes:

• his endless investigations;

• his overprotection of Devon;

• his worrying, since it was causing Devon new symptoms;

• his failure to obtain counselling for his son;

• his failure to allow his son to return to school and to exercise;

• his failure to provide his son with prescribed medications;

• his failure to stop providing his own prescription narcotics to hisson, which caused Devon to develop a drug dependency;

• his failure to bring his son to medical appointments; and

• his failure to follow the advice of medical practitioners.60 The Board submits that the trial judge erred in finding that the acci-

dent caused the somatoform disorder. The Board argues that it is clearfrom the evidence that the true cause of Devon’s somatoform disorderwas “Mr. Hussack’s obsessive, pathological behaviour”.

61 The Board does not dispute that the “but for” test is the correct test,but submits that the trial judge erred in her conclusion that the test wasmet when she relied on and misinterpreted Dr. O’Shaughnessy’s opinionto support this finding.

62 Devon submits that the trial judge applied the correct legal test andmade findings of fact which were supported by the evidence. He submitsthere is no basis upon which to overturn her conclusions.

Analysis63 The trial judge considered the plaintiff’s expert evidence from Drs.

Stewart and Krywaniuk, both of whom opined that the concussion suf-


fered by Devon was the event which triggered the subsequent disorder.She referred to their evidence at paras. 124-25 of her decision:

First there is Dr. Nairne (sic) Stewart’s evidence that had it not beenfor the field hockey incident, it is unlikely Devon would have devel-oped his subsequent chronic disability. In her opinion, the initial in-jury formed the basis of the subsequent problems which developed.(Dr. Stewart’s evidence, February 12, 2009, page 8).

Dr. Krywaniuk also testified that the triggering event was the blow toDevon’s head. As he put it, the blow to the head was the basis or theplatform of the somatoform disorder which followed. In his report ofDecember 2, 2008 he notes: “It is my opinion that the accident was asignificant contributing factor, possibly in the form of a trigger, toMr. Hussack’s current situation”.

64 Dr. O’Shaughnessy testified for the Board. The Board argued hisopinion was that the accident did not cause the somatoform disorder andthat Mr. Hussack’s conduct was the cause. However, the trial judge dis-agreed and found support for Devon’s claim in Dr. O’Shaunnessy’sviews as follows:

[129] Dr. O’Shaughnessy describes the role of the hockey stick inci-dent in the following terms:

In my opinion, the hockey stick incident is not responsiblein any significant way for the subsequent development ofhis Somatoform illness, chronic pain, bizarre symptoms,deconditioned state, or the evolution into this dependentemotional state.

The subsequent events with the over solicitous and depen-dent producing behaviour by his father clearly triggeredincreasing symptoms and increasingly dependant attach-ments. In my view, the most important factors related tohis development of a somatoform illness are the underly-ing school phobia and the dependant attachment betweenfather and son that has served to focus attention on bodysymptoms that have clearly expanded overtime.

. . .

These are certainly consistent descriptions of excessiveconcern by Mr. Hussack that would certainly be consis-tent with the opinions I expressed earlier i.e. that Devon’sprimary difficulties are a combination of school phobiaand family dynamics encouraging marked dependency(Exhibit 20, Tab 15). [Emphasis added by the trial judge.]


[130] I will note in passing that in this excerpt Dr. O’Shaughnessyimplicitly accepts that the “hockey stick incident” (i.e. the blow tothe head) played some role in the causation of the subsequent eventshere. Implicitly, he also accepts that the blow to the head caused theinitial symptoms although he concludes it was the school phobia anddependant attachment between the father and son which caused theincreasing symptoms.

[Underline emphasis in original.]

[131] Perhaps most enlightening in understanding his causation the-ory was what plaintiff’s counsel calls the “causative metaphor”which Dr. O’Shaughnessy developed at trial in his evidence in chief.As Dr. O’Shaughnessy testified:

...if you get a bug bite and it raises an itchy swollen le-sion, and you scratch it, it will make it worse. And if youkeep scratching it, it will get worse and worse, until youcan in fact end up with an open sore of quite large magni-tude....That’s kind of a, if you will, a physical metaphorfor what happened here. The incident when he gotsmacked in the nose with a hockey stick was the bug bite,but the real thing that provoked the somatoform illnesswas the father’s behaviour in driving it forward over andover. That’s the but for, in my opinion, that was necessaryin this case. (Evidence, February 26, morning direct, page59)

[132] In my view the causative metaphor employed by Dr.O’Shaughnessy conflates the concepts of cause in fact and cause inlaw. In terms of the cause in fact, I am satisfied that “but for” theblow to the head, (ie. the “bug bite”) and the resulting symptoms (theinitial mild concussion and postconcussion syndrome symptoms),there would have been no reaction on the part of Hussack Sr., andthus no development of the somatoform disorder. While the familypathology, particularly Hussack Sr.’s overprotective and obsessiveactions, played a large role here, this does not negate the causativerole of the initial head injury. The law is clear that the defendant’sactions need not be the only cause of the subsequent injury. It isenough that the defendant’s negligence was one of the causal factorswhich resulted in his injury. Defendants whose acts were necessaryparts of the causal sequence will be fully liable for the injuries (Atheyv. Leonati [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235; AssiniboineSouth School Division v. Greater Winnipeg Gas Co., [1971] 4W.W.R. 746, 212 D.L.R. (3d) 608 (Man. C.A.); and Nader v. Urban


Transit Authority (1985) 2 N.S.W.L.R. 501 (New South WalesC.A.)).

65 Thus, the trial judge found Dr. O’Shaughnessy’s evidence, as well asthe plaintiff’s experts, provided evidence upon which she could properlyrely to find that “but for” the head injury, the somatoform disorder wouldnot have occurred.

66 I am satisfied there is no error in the trial judge’s interpretation of Dr.O’Shaughnessy’s evidence, nor in her reliance on his opinion, and thoseof the plaintiff’s experts, in concluding that but for the accident the so-matoform disorder would not have developed. While she acknowledgedMr. Hussack’s conduct was a contributing cause of the disorder, sheproperly concluded this did not relieve the Board of liability. I am satis-fied there is no basis on which this Court could properly disturb thosefindings.

(b) Cause in law67 For the plaintiff to recover, the damage suffered must also be reason-

ably foreseeable. This concept is referred to in the case law variously ascausation in law, proximate cause, and remoteness of damage. The trialjudge’s findings

68 The trial judge’s findings with respect to this issue were as follows: X. Cause-in-law: Were the plaintiff’s injuries reasonably

foreseeable? Or was the accident the proximate cause of theloss?

[133] In terms of the second strand of the causation theory, the de-fence says the plaintiff has failed to prove the cause in law — namelythat the injuries were foreseeable or not too remote. As the defenceputs it at para. 563 of the Written Argument:

While it was foreseeable that while playing field hockey astudent could get hit with a stick and be injured, the seri-ous mental injury that the plaintiff has developed as a re-sult of his father, was not foreseeable and that an objec-tive person of ordinary fortitude would not have sustainedsuch a serious reaction to such a trifling event.

. . . . .

[139] There are a number of authorities in which a party suffers aninjury by virtue of the defendant’s negligence and goes on to developa mental illness, whether hysteria or a somatoform disorder or con-version disorder or some other illness. In all of these cases, the courtswill apply the usual principles which apply in relation to causation


(Varga v. John Labbatt, [1956] O.R. 1007, 6 D.L.R. (2d) 336 (H.C.);Yoshikawa v. Yu (1996) 21 B.C.L.R. (3d) 318, 73 B.C.A.C. (C.A.);Edwards v. Marsden, 2004 BCSC 590; Samuel v. Levi, 2008 BCSC1447). As Lambert J.A. noted in Yoshikawa at para. 13 “(t)he generalprinciples which apply in relation to causation in law will apply topsychological injury as they apply to physical injury”.

[140] In this case, I am persuaded that but for the defendant’s negli-gence the plaintiff’s psychological symptoms would not have oc-curred or at least would not have occurred in the way that they did.Further, I am satisfied the plaintiff has proven that the defendant’snegligence was the proximate cause of the plaintiff’s psychologicalsymptoms.

Position of the parties69 The Board submits that the occurrence of a somatoform disorder was

not a foreseeable injury in these circumstances.70 Devon submits that the specific injury from which he suffers did not

have to be foreseeable in order for the Board to attract liability.

Analysis71 It is not necessary for the plaintiff to show that the precise injury or

the full extent of the injury was reasonably foreseeable. What he mustshow is that the type or kind of injury was reasonably foreseeable:Hughes v. Lord Advocate, [1963] UKHL 1 (U.K. H.L.); Jolley v. SuttonLondon Borough Council, [2000] UKHL 31 (U.K. H.L.); Millette v. Cote(1974), [1976] 1 S.C.R. 595 (S.C.C.).

72 The remoteness of damage issue was addressed by the Supreme Courtof Canada in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27(S.C.C.). In that case, the plaintiff became ill when he saw a dead fly inan unopened bottle of drinking water supplied by the defendant, Culli-gan. He subsequently developed a debilitating psychiatric illness includ-ing a major depressive disorder, anxiety, and a phobia about showering.Cause in fact was found by the trial judge and not appealed. The issuebefore the Court was “whether that breach also caused the plaintiff’sdamage in law or whether it is too remote to warrant recovery” (para.11).

73 Chief Justice McLachlin described the remoteness inquiry as follows:[12] The remoteness inquiry asks whether “the harm [is] too unre-lated to the wrongful conduct to hold the defendant fairly liable”(Linden and Feldthusen, [Canadian Tort Law, 8th ed., 2006] at p.


360). Since The Wagon Mound (No. 1), the principle has been that “itis the foresight of the reasonable man which alone can determine re-sponsibility” (Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engi-neering Co., [1961] A.C. 388 (P.C.), at p. 424).

74 The principle of reasonable foreseeability in relation to psychiatricinjury is subject to a qualification: where the psychiatric injury is conse-quential to the physical injury for which the defendant is responsible, thedefendant is also responsible for the psychiatric injury even if this injurywas unforeseeable. See White v. Chief Constable of South Yorkshire Po-lice (1998), [1999] 2 A.C. 455 (U.K. H.L.), at 470, Varga v. John LabattLtd., [1956] O.R. 1007, 6 D.L.R. (2d) 336 (Ont. H.C.); Yoshikawa v. Yu(1996), 21 B.C.L.R. (3d) 318, 73 B.C.A.C. 253 (B.C. C.A.); Edwards v.Marsden, 2004 BCSC 590 (B.C. S.C.); Samuel v. Levi, 2008 BCSC 1447(B.C. S.C.).

75 Here, not only was it reasonably foreseeable that a student might bestruck on the head or face with a field hockey stick, Mr. MacPhee didforesee that risk, as evidenced by his “no high sticking” rule. It was alsoreasonably foreseeable that a student would sustain an injury to his or herhead if this occurred. The trial judge, having found the somatoform dis-order was consequential to the post-concussion syndrome, properly con-cluded based on the evidence and authorities that the respondent had es-tablished the appellant’s negligence was the proximate cause of Devon’sinjury.

3. Novus actus interveniens76 The appellant alleged that Mr. Hussack’s conduct amounted to a new

intervening act which broke the chain of causation between Mr.MacPhee’s negligent conduct and Devon’s subsequent injuries.

77 The defence of novus actus interveniens is successful when the newact is of sufficient magnitude to break the chain of causation: It wasstated this way in Mitchell v. Rahman, 2002 MBCA 19, 209 D.L.R. (4th)621 (Man. C.A.):

[30] A novus actus interveniens absolves the original wrongdoer oflegal liability (or of further liability) where the later act or event is ofsuch a quality as to cause a break in the chain of causation. Whetheror not the intervening conduct amounts to a novus actus interveniensis a question that has plagued the courts for centuries.


1. The trial judge’s findings78 The trial judge concluded:

[189] The defendant has not succeeded in demonstrating that Hus-sack Sr.’s actions amount to a new intervening act. Hussack Sr.’sover-bearing, overprotective tendencies were well-known to the de-fendant prior to the field hockey incident. Moreover, as held in Na-der and Malcolm, it is not “beyond the range of reasonable anticipa-tion” to foresee that a parent would react strongly to their childsuffering an injury. That this reaction was extreme in this case wasforeseeable, and it does not break the chain of causation.

XIII. Conclusions on causation:

[190] In the end result, on a review of all of the authorities, I havereached several conclusions:

. . .

(4) it is ... foreseeable that a parent (and particularly thisparent who was well known to the defendant) would reactto the injury to his son (It is not unusual in today’s worldfor such a reaction to include intensive Internet research,journaling of symptoms and excessive medical consulta-tions with various specialists);

(5) but for the blow to the head and the mild concussion(and other concussive symptoms which followed), the fa-ther would not have reacted and the plaintiff would nothave developed the somatoform illness.

79 The trial judge concluded that Mr. Hussack’s post-accident conductwas foreseeable, and therefore could not constitute a new act whichwould break the chain of causation.

Position of the parties80 The Board submits that the trial judge erred in not finding that the

acts of Mr. Hussack amounted to an intervening cause which broke thechain of causation.

81 Mr. Hussack’s conduct relied on by the Board is noted above at para.59.

82 The Board submits that the trial judge erred in her legal analysis, inthat foreseeability is not the test for whether something constitutes a newact. The Board submits that the standard is “reasonableness” and relieson McKew v. Holland & Hannen & Cubitts (Scotland) Ltd., [1969]UKHL 12 (U.K. H.L.). In that case, the plaintiff sustained a minor injury


to his leg. He then fell down some stairs and sustained a more seriousinjury, and blamed his fall on the first injury. The conclusion was that heacted unreasonably when attempting to traverse the stairs with an injuredleg. His unreasonable conduct was found to be a new intervening actwhich broke the chain of causation. This decision was adopted by thisCourt in Dudek v. Li, 2000 BCCA 321 (B.C. C.A.) at paras. 11-17. Inessence, the decisions say that if an injured party acts unreasonably andcauses him or herself further injury, the tortfeasor is not responsible forinjuries suffered as a result of the second injury.

83 The Board did not suggest that Devon acted unreasonably, given hisage and circumstances, but submitted that Mr. Hussack’s conduct wasunreasonable. The Board reviewed a number of decisions (also reviewedby the trial judge) in order to demonstrate factual circumstances wherethe intervention of a family member constituted a new act breaking thechain of causation. All but one of the cases found that the conduct of thefamily did not break the chain of causation. See: Duwyn v. Kaprielian(1978), 94 D.L.R. (3d) 424, 22 O.R. (2d) 736 (Ont. C.A.); Nader v.Urban Transit Authority (1985), 2 N.S.W.L.R. 501 (New South WalesC.A.); Malcolm v. Broadhurst, [1970] 3 All E.R. 508 (Eng. Q.B.); andYoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318 (B.C. C.A.).

84 The Board relied on the one exception, McLaren v. Bradstreet (1969),113 Sol. Jo. 471 (Eng. C.A.), where the court held that “family hysteria”was not a foreseeable result of a car accident, and found that the familyconduct broke the chain of causation. The report of this case is simply asummary so it is difficult to ascertain the factual foundation on which thedecision is based. In any event, factual findings from another jurisdictionprovide little assistance to the appellant.

85 Devon’s position is that the trial judge reviewed the authorities, cameto a conclusion based on the evidence and the law, and made no error inher conclusion.

Analysis86 In my view, the “family cases” do not create new law, but simply

apply existing principles to the findings of fact in somewhat unusualcases. The trial judge addressed the “family cases” in her reasons forjudgment at some length. In the result, she found that Mr. Hussack’s con-duct did not constitute a “new act” which broke the chain of causation.Thus, she concluded that novus actus interveniens had no application.


87 In my view, the trial judge properly addressed the issue of foresee-ability in addressing the question of whether Mr. Hussack’s conduct con-stituted a novus actus interveniens. She recognized that defendantsshould not be held liable for objectively unforeseen consequences oftheir actions. See Martin v. McNamara Construction Co., [1955] 3D.L.R. 51 (Ont. C.A.), at 54-55 and Ken Cooper-Stephenson, PersonalInjury Damages in Canada, 2nd ed. (Scarborough: Carswell, 1996) at827-28.

88 The question of whether a subsequent act breaks the chain of causa-tion is a question of fact: Mitchell, supra, at para. 31. As such, the find-ing is only reviewable if there is a palpable and overriding error.

89 The trial judge concluded that it was foreseeable that Mr. Hussackwould conduct himself generally in the manner he did. There was evi-dence to support this finding. I would not give effect to this ground ofappeal.

4. Assessment of Damages90 The trial judge awarded the following damages:

Non-pecuniary damages $ 125,000Past loss of income $ 200,000Future loss of income earning capacity $ 1,000,000Future care costs $ 40,000

TOTAL: $ 1,365,000

91 The issues raised under this ground of appeal are:

1) failure by the trial judge to take into account specific negativecontingencies for both past wage loss and loss of future income-earning capacity;

2) the trial judge failed to deduct any residual future income-earningcapacity in making her award for loss of future income-earningcapacity;

3) the trial judge erred in awarding money to pay for a vocationalassessment.

Specific contingencies92 In assessing past wage loss and loss of future income-earning capac-

ity, a trial judge must take into consideration any contingencies whichaffect the loss. General contingencies may be positive, such as the possi-


bility of promotion, or negative, such as the possibility of lay-off. Addi-tionally, there may be specific contingencies that arise on the particularfacts of the case.

93 In Graham v. Rourke (1990), 74 D.L.R. (4th) 1 (Ont. C.A.), the Courtnoted the differences between general and specific contingencies at para.14:

These cases, and those which have applied them, tell me that contin-gencies can be placed into two categories: general contingencieswhich as a matter of human experience are likely to be the commonfuture of all of us, e.g., promotions or sickness; and “specific” con-tingencies, which are peculiar to a particular plaintiff, e.g., a particu-larly marketable skill or a poor work record. The former type of con-tingency is not readily susceptible to evidentiary proof and may beconsidered in the absence of such evidence. However, where a trialjudge directs his or her mind to the existence of these general contin-gencies, the trial judge must remember that everyone’s life has “ups”as well as “downs.” A trial judge may, not must, adjust an award forfuture pecuniary loss to give effect to general contingencies butwhere the adjustment is premised only on general contingencies, itshould be modest.

The trial judge’s findings94 The trial judge awarded $200,000 for past wage loss, taking into ac-

count “average labour market contingencies” as well as the specific con-tingency that Devon had only a 75% chance of finishing high school. Sheconcluded that $1,045,170 was an appropriate amount for future loss ofincome-earning capacity, taking into account “non-wage benefits”, “av-erage labour market contingencies”, and the likelihood that Devon wouldfinish high school. After considering “the overall fairness and the reason-ableness of the amount”, she reduced this figure by $45,170 (4%) to ac-count for the “positive and the negative contingencies”. Thus, sheawarded Devon $1,000,000 for loss of future income-earning capacity.

The position of the parties95 The Board submits that the trial judge erred in her assessment of past

wage loss and loss of future income-earning capacity. It points to the factDevon was absent for 38% of his classes by the date of the accident. TheBoard submits the trial judge erred by failing to reduce these awards forspecific contingencies related to the unusual father-son relationship.They say that by the time of the accident Devon had developed a habitual


and significant pattern of school absenteeism and late arrivals, due to hisfather’s indulgence. They maintain it was a significant possibility thatthese features, as well as related psychological and adjustment issues,would have had an impact on Devon’s ability to hold a job and his per-formance in the workplace. The Board argues the trial judge should ac-cordingly have reduced the awards for past loss of income and futureearning capacity by 30%.

96 Devon disagrees with the Board’s submission that the trial judgefailed to account for the “further negative contingencies... inherent in[Devon’s] original position”. He submits that the trial judge’s 4% reduc-tion of the award for future loss of income-earning capacity was suffi-cient to account for the specific contingencies arising on the evidence.

Analysis97 An appeal court must give due deference to a trial judge’s assessment

of damages and can only interfere with the assessment if the trial judgemisapplied principles of law, made a palpable or overriding error, orawarded an amount which was wholly erroneous given the evidence inthe case.

98 In Blackwater v. Plint, 2005 SCC 58 (S.C.C.), the Court addressedthe difficulty of assessing damages when there are different sources ofthe ultimate damage. The Court said, at paras. 74-75:

[74] The calculation of damages for sexual assault to Mr. Barney iscomplicated by two other sources of trauma: (1) trauma suffered inhis home before he came to AIRS; and (2) trauma for non-sexualabuse and deprivation at AIRS that was statute barred. In reality, allthese sources of trauma fused with subsequent experiences to createthe problems that have beset Mr. Barney all his life. Untangling thedifferent sources of damage and loss may be nigh impossible. Yet thelaw requires that it be done, since at law a plaintiff is entitled only tobe compensated for loss caused by the actionable wrong. It is the“essential purpose and most basic principle of tort law” that theplaintiff be placed in the position he or she would have been in hadthe tort not been committed: Athey v. Leonati, [1996] 3 S.C.R. 458, atpara. 32.

[75] The trial judge followed this principle and sought to excludedamages relating to trauma suffered by Mr. Barney before coming toAIRS and statutebarred wrongs. In his view, the plaintiff’s familybackground, his institutionalization at AIRS and the non-sexualtraumas he suffered, fell to be considered as factors inherent in his


position, distinct from the sexual assaults. The trial judge clearly con-cluded that Mr. Barney’s family life prior to AIRS, as well as otherexperiences at AIRS, made it likely that he would have suffered seri-ous psychological difficulties even if the sexual abuse had neveroccurred.

[Emphasis in original.]

99 Recently, in Burdett v. Eidse, 2011 BCCA 191 (B.C. C.A.), this Courtreduced an award for lost future income-earning capacity where the trialjudge failed to apply a negative discount to take into account the effect ofthe plaintiff’s pre-existing medical condition on his future income-earn-ing capacity. Hinkson J.A., writing for the Court, held:

[61] The trial judge’s award for loss of future earning capacity failedto take into account the relative likelihood that Mr. Burdett wouldhave been unable to continue to work to age 73, even at a reducedpace, had the accidents not occurred, due to his pre-existing cer-ebrovascular disease, hypertension, diabetes, or high cholesterol.When making the award, the judge’s failure to take into account theevidence of the risks associated with Mr. Burdett’s preexisting condi-tion effectively puts him in a better position than he would have beenin but for the first accident. In my view, the judge’s failure to apply anegative discount to take into account the effect of Mr. Burdett’s pre-existing condition on future earning capacity amounts to an error inlaw.

100 In the present case, the trial judge recognized that the conduct ofDevon’s father prior to the accident would impair Devon’s development.She referred to both medical evidence and the evidence of Devon’steachers who pointed to difficulties arising from the relationship with fa-ther and son before the accident occurred.

101 It was on the basis of this evidence, set out at paras. 206-13 of herreasons, that the trial judge concluded that there was a 25% chanceDevon would not finish high school.

102 In my view, this same evidence should have led the trial judge toreduce both the past wage loss and the loss of future income-earning ca-pacity awards to account for the specific contingency that Devon mightnot have been able to hold a job regardless of the accident. I am of theview that she erred in law in failing to adjust the past wage loss award toaccount for this specific contingency. In failing to discount the award totake into account Devon’s pre-accident position, the trial judge placedDevon “in a better position than he would have been in but for the...accident” (Burdett, supra, at para. 61).


103 Assuming that the 4% discount of the award for future loss of in-come-earning capacity was meant to address the possibility that Devonwould have had difficulty holding a job in any event, I am of the viewthat such a small reduction would be “wholly erroneous” on the evi-dence. The trial judge concluded that there was a 25% likelihood thatDevon would not finish high school. In my opinion, this is an appropriatepercentage reduction for the contingency that Devon would still have hadsignificant difficulty finding and keeping a job, given his significant pre-accident history of absenteeism from school, his late attendance record,and his inability to complete homework assignments.

104 Therefore, I would reduce the past wage loss award of $200,000 by$50,000 to $150,000. I would reduce the loss of future earning capacityaward to $785,000 (rounded up from $783,878).

Residual future earning capacity105 Additionally, the Board submits that the trial judge erred in not taking

into account any residual future earning capacity. The court consideredthe evidence on this point and quoted Dr. Stewart:

[198] Since Devon’s situation has continued for approximately 10years, the experts all agree Devon’s prognosis is very guarded andthat his present situation “will not easily change” (Dr.O’Shaughnessy report, Exhibit 20, Tab 15) unless there is intensive,prolonged intervention. Dr. [Nairn] Stewart has opined that evenwith prolonged and intensive treatment, there is only a “minor hopethat (Devon) might again become functional”. Even assuming suchintervention, Dr. Krywaniuk believes it is possible that following theremoval of his present support structure (ie. the belief that he is in-deed brain damaged and has suffered true physical injuries), Devonmay become significantly depressed and perhaps even suicidal.

106 The trial judge concluded that given Devon’s bleak prognosis, whichwas also supported by Dr. O’Shaughnessy’s evidence, she could not de-duct anything for residual capacity. She said, at para. 225:

[225] From this figure I must deduct Devon’s residual capacity forfuture income earning capacity. In this regard, based on the evidenceat hand and the very bleak prognosis offered by every expert, I amunable to determine any measurable residual capacity for deduction.

107 I find that the trial judge did not commit an error. She considered theissue and had ample evidence to support her conclusion.

Hussack v. Chilliwack School District No. 33 Prowse J.A. 245

Vocational assessment108 The Board also submits that the trial judge erred when she granted

$15,000 for a vocational assessment when she concluded that there wasno measurable discount for a residual capacity to earn future income.While this finding could be viewed as inconsistent with the finding of nomeasureable residual capacity to earn a living in the future, in my re-spectful view, the trial judge was leaving the door open in case Devonwas able to find some form of work. A vocational assessment would as-sist him in discovering what, if any, vocation he was capable of pursuing.I would not interfere with this award.

5. Cross-Appeal by Devon with Respect to the Pain ManagementProgram

109 The Board’s psychologist recommended a pain management programfor Devon. Devon takes the position that because the Board’s expert rec-ommended the program, the trial judge must grant this award.

110 The other experts did not recommend a pain management program.111 This opinion was expressed before the Board’s expert knew that

Devon had been diagnosed with a somatoform disorder. The trial judgeconcluded that Devon required a behaviour program at a cost of $15,000and not a pain management program.

112 In my respectful view, the trial judge was entitled to make the deci-sion she did based on the evidence before her.

113 I would dismiss the cross-appeal by Devon Hussack.114 The appeal is allowed to the extent that the past wage loss award is

reduced to $150,000 and the loss of future earning capacity is reduced to$785,000.

V. Costs115 In light of these results, I would make the following orders:

i) Devon is entitled to 75% of his costs of this appeal;

ii) The Board is entitled to their costs of the cross-appeal;

iii) These sums may be off-set.

Prowse J.A.:

I agree.


Neilson J.A.:

I agree.

Appeal allowed in part.

Raymond v. Raymond Estate 247

[Indexed as: Raymond v. Raymond Estate]

Barry Alfred Raymond (Plaintiff/Appellant) and BeverleyBarbara Anderson, as Executrix for the Estate of Helen BarbaraRaymond, and Beverley Barbara Anderson, as Executrix for the

Estate of George Alfred Raymond (Defendant/Respondent)

Saskatchewan Court of Appeal

Docket: 1668

2011 SKCA 58

Vancise, Richards, Caldwell JJ.A.

Heard: November 10, 2010

Judgment: May 18, 2011

Real property –––– Sale of land — Remedies — Damages — Miscellane-ous –––– Each of parents, their son A, and their son B (plaintiff), were registeredowners, as tenants in common, of one-quarter undivided interest in farm land —Parents were deceased, and their estates were parties to litigation — B broughtsuccessful action for finding that parents entered into valid agreement to selltheir interests in land to B — B was awarded damages for breach of that agree-ment — B appealed with respect to remedy — Appeal allowed; order for spe-cific performance substituted for damages award — Trial judge failed to assesswhether B’s expectation interest under agreement for sale could be protected bymonetary award of sufficient value to allow him to purchase substitute perform-ance — Trial judge failed to assess whether land was specifically suited to B,and whether comparable substitute property was readily available — B’s reasonsfor deciding to acquire his parents’ interests at time he entered agreement forsale were highly material, but supposed ulterior motive for pursuing claim forbreach of agreement was not — Land was not more akin to commodity thantract of land having special attributes not found in any other farm land — Landwas immediately across road from B’s home quarter — B already owned undi-vided one-quarter interest in land — Land once belonged to B’s grandfather andwas home to his parents’ yard-site — B used land for over 40 years, with hisparents, his brother, and his deceased son — These factors or attributes werecogent and impossible to value precisely — Award of damages could not restoreB to position that he would have been in had parents’ estates performed underagreement for sale of parents’ interests — There was no comparable substituteproperty, let alone one that was readily available.

Remedies –––– Specific performance — Relation to other remedies — Dam-ages — Adequacy of remedy — Unique property –––– Each of parents, theirson A, and their son B (plaintiff), were registered owners, as tenants in common,


of one-quarter undivided interest in farm land — Parents were deceased, andtheir estates were parties to litigation — B brought successful action for findingthat parents entered into valid agreement to sell their interests in land to B — Bwas awarded damages for breach of that agreement — B appealed with respectto remedy — Appeal allowed; order for specific performance substituted fordamages award — Trial judge failed to assess whether B’s expectation interestunder agreement for sale could be protected by monetary award of sufficientvalue to allow him to purchase substitute performance — Trial judge failed toassess whether land was specifically suited to B, and whether comparable substi-tute property was readily available — B’s reasons for deciding to acquire hisparents’ interests at time he entered agreement for sale were highly material, butsupposed ulterior motive for pursuing claim for breach of agreement was not —Land was not more akin to commodity than tract of land having special attrib-utes not found in any other farm land — Land was immediately across roadfrom B’s home quarter — B already owned undivided one-quarter interest inland — Land once belonged to B’s grandfather and was home to his parents’yard-site — B used land for over 40 years, with his parents, his brother, and hisdeceased son — These factors or attributes were cogent and impossible to valueprecisely — Award of damages could not restore B to position that he wouldhave been in had parents’ estates performed under agreement for sale of parents’interests — There was no comparable substitute property, let alone one that wasreadily available.

Cases considered by Caldwell J.A.:

Chaulk v. Fairview Construction Ltd. (1977), 14 Nfld. & P.E.I.R. 13, 3 R.P.R.116, 33 A.P.R. 13, 1977 CarswellNfld 12, [1977] N.J. No. 35 (Nfld.C.A.) — considered

Domowicz v. Orsa Investments Ltd. (1993), 1993 CarswellOnt 651, 36 R.P.R.(2d) 174, [1993] O.J. No. 1385 (Ont. Gen. Div.) — referred to

Flint v. Corby (1853), 4 Gr. 45, 1853 CarswellOnt 15 (U.C. Ch.) — consideredHeron Bay Investments Ltd. v. Peel-Elder Developments Ltd. (1976), 2 C.P.C.

338, 1976 CarswellOnt 355, [1976] O.J. No. 1403 (Ont. H.C.) —considered

John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2001), 2001 CarswellOnt3984, 56 O.R. (3d) 341, 46 R.P.R. (3d) 239, [2001] O.J. No. 4397 (Ont.S.C.J.) — considered

Ligtermoet v. Wellington (Rural Municipality) No. 97 (2002), 2002 SKQB 474,2002 CarswellSask 716, 34 M.P.L.R. (3d) 288, (sub nom. Wellington (RuralMunicipality) No. 97 v. Ligtermoet) 228 Sask. R. 135, [2003] 3 W.W.R. 339(Sask. Q.B.) — considered

Ligtermoet v. Wellington (Rural Municipality) No. 97 (2003), 38 M.P.L.R. (3d)191, 2003 SKCA 48, 2003 CarswellSask 361, (sub nom. Wellington No. 97(Rural Municipality) v. Ligtermoet) 232 Sask. R. 207, (sub nom. Wellington

Raymond v. Raymond Estate 249

No. 97 (Rural Municipality) v. Ligtermoet) 294 W.A.C. 207, [2003] 10W.W.R. 191 (Sask. C.A.) — referred to

McNabb v. Smith (1981), 30 B.C.L.R. 37, 1981 CarswellBC 186, 20 R.P.R. 146,124 D.L.R. (3d) 547, [1981] B.C.J. No. 1833 (B.C. S.C.) — referred to

McNabb v. Smith (1982), 132 D.L.R. (3d) 523, 1982 CarswellBC 405, 44B.C.L.R. 295 (B.C. C.A.) — referred to

Morsky v. Harris (1997), 155 Sask. R. 193, 1997 CarswellSask 187, [1997] 6W.W.R. 557, 10 R.P.R. (3d) 133, [1997] S.J. No. 268 (Sask. Q.B.) —considered

Morsky v. Harris (1998), [1998] 8 W.W.R. 340, 1998 CarswellSask 185, 168Sask. R. 27, 173 W.A.C. 27, 18 R.P.R. (3d) 192 (Sask. C.A.) — referred to

Roy v. Kloepfer Wholesale Hardware & Automotive Co. (1952), [1952] 3 D.L.R.705, 1952 CarswellOnt 116, [1952] 2 S.C.R. 465 (S.C.C.) — considered

Semelhago v. Paramadevan (1996), 1996 CarswellOnt 2737, 1996 CarswellOnt2738, 197 N.R. 379, 3 R.P.R. (3d) 1, 28 O.R. (3d) 639 (note), 136 D.L.R.(4th) 1, 91 O.A.C. 379, [1996] 2 S.C.R. 415, EYB 1996-67695, [1996]S.C.J. No. 71 (S.C.C.) — considered

Stefan v. Lichter (2005), 35 R.P.R. (4th) 195, 2005 SKQB 383, 2005 Carswell-Sask 652, 270 Sask. R. 124 (Sask. Q.B.) — considered

904060 Ontario Ltd. v. 529566 Ontario Ltd. (1999), 1999 CarswellOnt 378, 89O.T.C. 112, [1999] O.J. No. 355 (Ont. Gen. Div.) — referred to

Words and phrases considered:

motive

The judge did acknowledge that farmers have an attachment to their land in gen-eral and did say that he had carefully considered [the plaintiff’s] reasons forseeking specific performance. However, the judge failed to conduct a criticalinquiry as to the nature and function of the Land in relation to [the plaintiff].Rather, the judge focused on [the plaintiff’s] “motive” for pursuing his Parents’Interests, from which I take him to mean an ulterior reason for pursuing specificperformance. While a judge’s inquiry must involve a critical examination of themotive of the prospective purchaser, “motive” in this sense refers to the natureand the authenticity or cogency of the subjective and objective factors articu-lated by the prospective purchaser. [The plaintiff’s] reasons for deciding to ac-quire his Parents’ Interests at the time he entered the agreement for sale arehighly material; but a supposed ulterior “motive” for pursuing his claim forbreach of that agreement is not. Furthermore, the judge erred by grounding hisinquiry into the genuineness of this motive on a misapprehension of the factsdating from a time after [the plaintiff] and his parents had entered the agreementfor sale.

APPEAL by plaintiff, with respect to remedy, from judgment reported atRaymond v. Raymond Estate (2008), 2008 CarswellSask 447, 2008 SKQB 278,


70 R.P.R. (4th) 244, 318 Sask. R. 65 (Sask. Q.B.), allowing action for breach ofagreement for sale of land and awarding damages.

Karl P. Bazin, Q.C., for AppellantWilliam J. Herle, Q.C., for Respondent

Caldwell J.A.:

I. Introduction1 The appellant, Barry Raymond (“Barry”), appeals from the remedy

awarded in his favour by the trial judge, see 2008 SKQB 278 (Sask.Q.B.). At trial, the judge found that Helen Barbara Raymond and GeorgeAlfred Raymond (“Barbara” and “Alfred”) had entered into a validagreement to sell their respective undivided one-quarter interests as te-nants in common (the “Parents’ Interests”) in S1/2 27-7-10 W3M (the“Land”) to Barry, their elder son. The judge awarded Barry the remedyof damages on the breach of that agreement by Barbara and Alfred.

2 For the reasons below, I would set aside the damages award and sub-stitute an order of specific performance requiring the transfer of the Par-ents’ Interests to Barry.

II. Background3 Barry is one of three children born to Barbara and Alfred. Barbara

and Alfred are deceased but their estates are respondents in this appeal(the “Parents’ Estates”) and are represented by Beverley Anderson(“Beverley”), their daughter and executrix. Alan Raymond (“Alan”) isBarbara and Alfred’s younger son. Like their parents, Barry and Alan arefarmers and ranchers. Alan is also a veterinarian.

4 Each of Alfred, Barbara, Barry and Alan are registered owners, astenants in common, of a one-quarter undivided interest in the Land. TheLand includes Barbara and Alfred’s home quarter, being SE 27-7-10W3M (the “Home Quarter”), on which their house, barn and other out-buildings and structures are located. Alan’s house and his veterinaryclinic are also located on the Home Quarter, but Alan’s primary farmingand cattle operations are on SW 26-7-10 W3M, being the quarter sectionimmediately to the east of the Home Quarter. Barry and his wife, GladysRaymond (“Gladys”), live and have their farming and cattle operationson the quarter section immediately to the south of the Home Quarter.Both Alan and Barry have used the Land in their respective farming and

Raymond v. Raymond Estate Caldwell J.A. 251

cattle operations. Alan’s son, David Raymond (“David”), currently livesin Barbara and Alfred’s house.

5 This action arose out of a broader dispute between the Raymondbrothers as to their succession to the farm land owned by their parents.The dispute arose prior to the deaths of Barbara and Alfred and contin-ues. Indeed, counsel advised this Court that there is a separate action inthe Court of Queen’s Bench, which has been in abeyance pending theoutcome of this action, for partition of the Land.

6 At trial in this matter, the judge disposed of the question as towhether a sale agreement existed between Barry and his parents and thenaddressed the appropriate remedy for the breach:

[85] Based upon these findings I have no hesitation in concludingthat the Agreement for Sale dated May 3, 2002 is valid and should beenforced in the plaintiff’s favor. I also agree with the plaintiff’s sub-mission relating to compliance with The Homesteads Act, 1989. Ihave no doubt that Barbara gave her consent freely to the dispositionof the property.

. . .

[87] I am aware of the attachment that farmers have to their land andI have carefully considered the plaintiff’s reasons for requesting atransfer of the defendants’ interest to him.

[88] Against this I must also consider that Barry has basically notused the property for a number of years and has been able to getalong. I feel compelled to take into consideration that Barry is in hislate sixties and question the sincerity of his motive to set up his cattleoperation on the property. Had Barry pressed his claim in 2002 afterthe Agreement for Sale was prepared I might have looked at it differ-ently. At this point, six years later, so much has happened betweenBarry and Alan that I cannot shake the feeling that Barry’s motivemay not be as genuine as it once was.

[89] In essence, I have not been convinced that the property is uniqueor irreplaceable in the sense that it cannot be compensated by dam-ages. In my view a damage award will adequately compensate Barryfor the purchase. The amount is $70,500.00 which represents one-half the appraised value of the property.

The Parents’ Estates do not dispute the finding that a valid and enforcea-ble agreement for the sale of the Land existed between Barry and hisparents. This appeal is limited to whether the judge, having found breachof that agreement, properly awarded compensatory damages, not specificperformance, as the remedy for that breach. This appeal gives rise to a


single question: Did the judge err in finding that compensatory damageswas an adequate remedy?

III. Analysis7 Until 1996 it had long been a tenet of our law that each parcel of real

property was inherently unique. Given this inherent uniqueness, ourcourts made the equitable remedy of specific performance readily availa-ble to a plaintiff purchaser who claimed the vendor had breached a con-tract for the sale of real property. In 1996, Sopinka J.’s majority decisionin Semelhago v. Paramadevan, [1996] 2 S.C.R. 415 (S.C.C.)(“Semelhago”), questioned these longstanding, rudimentary elements ofour law of real property. His comments, although obiter, were thereaftergenerally accepted as law. However, Sopinka J. did not so much makenew law as remind us that a basic legal rationale based on the presumedinadequacy of expectation damages has always underpinned the availa-bility of specific performance as a remedy in cases involving real pro-perty. Unfortunately, post-Semelhago there has been some confusion asto when the remedy of specific performance will be made available to anaggrieved prospective purchaser of land. For this reason, Semelhago hasbeen criticized for founding legal uncertainty in once settled law. Thisappeal results in part from that uncertainty.

8 Some background on the Semelhago decision is necessary. InSemelhago, Sopinka J. expressed dissatisfaction with the way in whichthe courts had been approaching the availability of specific performanceas a remedy in matters involving real property:

[20] ... While at one time the common law regarded every piece ofreal estate to be unique, with the progress of modern real estate de-velopment this is no longer the case. Residential, business and indus-trial properties are all mass produced much in the same way as otherconsumer products. If a deal falls through for one property, another isfrequently, though not always, readily available.

[21] It is no longer appropriate, therefore, to maintain a distinction inthe approach to specific performance as between realty and person-alty. It cannot be assumed that damages for breach of contract for thepurchase and sale of real estate will be an inadequate remedy in allcases. The common law recognized that the distinction might not bevalid when the land had no peculiar or special value....

[22] ... Specific performance should, therefore, not be granted as amatter of course absent evidence that the property is unique to theextent that its substitute would not be readily available. The guideline


proposed by Estey J. in Asamera Oil Corp. v. Seal Oil & GeneralCorp, [1979] 1 S.C.R. 633, with respect to contracts involving chat-tels is equally applicable to real property. At p. 668, Estey J. stated:

Before a plaintiff can rely on a claim to specific perform-ance so as to insulate himself from the consequences offailing to procure alternate property in mitigation of hislosses, some fair, real and substantial justification for hisclaim to performance must be found.

[emphasis added]

It is important to note that the real property at issue in Semelhago was ahouse under construction on a bare lot in Toronto that was “interchange-able in all likelihood with any number of others” (at paras. 7 and 23).Further, at the time, a line of cases had emerged involving aggrieved pro-spective purchasers who had sought the remedy of specific performancewhich distinguished investment properties from other real properties, asexamples see: Heron Bay Investments Ltd. v. Peel-Elder DevelopmentsLtd. (1976), 2 C.P.C. 338 (Ont. H.C.) (“Heron Bay”); Chaulk v. FairviewConstruction Ltd. (1977), 3 R.P.R. 116 (Nfld. C.A.) (“Chaulk”); McNabbv. Smith (1981), 124 D.L.R. (3d) 547 (B.C. S.C.), aff’d (1982), 132D.L.R. (3d) 523 (B.C. C.A.); and Domowicz v. Orsa Investments Ltd.(1993), 36 R.P.R. (2d) 174 (Ont. Gen. Div.).

9 What Heron Bay, Chaulk and Semelhago all speak to is the generalgoal of the law of remedies as it applies to breach of contract, which is toput the plaintiff in the same position that the plaintiff would have been inhad the defendant performed under the contract. With this goal in mind,the courts typically awarded a successful plaintiff the common law rem-edy of compensatory damages. However, where damages will not makethe plaintiff whole, the courts may resort to equity and may award a suc-cessful plaintiff the discretionary remedy of specific performance. An or-der for specific performance requires the defendant to perform under thecontract, thereby making the plaintiff whole. In this context, specific per-formance is an alternative, equitable remedy made available to a plaintiffonly where a common law award of damages would be inadequate. Rob-ert J. Sharpe in Injunctions and Specific Performance, looseleaf (Aurora:Canada Law Book, 2010), describes this interplay between the primaryand alternative remedies (at para. 7.180):

Where ordinary damages will not meet the goal of protecting theplaintiff’s expectation, the added cost of specific performance be-comes worth incurring. The assumptions which lie behind expecta-tion damages as an adequate level of protection are that the injured


party is in the position of a commercial trader, motivated to enter thecontract with the aim of maximizing profit, and that the subject-mat-ter of the bargain is a fungible good or service for which there isreadily available alternate performance. The notion of “inadequacyof damages” as a rationale for specific performance reflects the de-sire to avoid the harshness which would result from the applicationof the ordinary rules where these assumptions are not met. Whereexpectation damages fail to reflect the interest of the plaintiff, spe-cific relief ensures that the plaintiff gets exactly what was bargainedfor and, whatever the nature of the plaintiff’s interest in performance,it is protected. This will usually increase the cost of breach imposedupon the defendant and the court’s task should be to weigh the disad-vantage of increasing the defendant’s burden against the advantageof affording more complete protection to the plaintiff’s expectation....

10 The general approach of courts faced with a breach of contract claimhas been to assess the adequacy of damages before resorting to the rem-edy of specific performance, but then only if compensatory damagesproved inadequate. However, prior to Semelhago, courts recognized ageneral exception to this approach when the contract in question in-volved land and courts understood specific performance to be the pri-mary and accepted remedy in that circumstance. For example, in Roy v.Kloepfer Wholesale Hardware & Automotive Co., [1952] 2 S.C.R. 465(S.C.C.), Kerwin J. summarily dismissed an argument akin to SopinkaJ.’s obiter in Semelhago when he wrote (at p. 472):

Finally, as to the suggestion that damages would be sufficient be-cause it is contended that the plaintiff desired to use the property asan investment, it is sufficient to say that generally speaking, specificperformance applies to agreements for the sale of lands as a matter ofcourse.

[emphasis added]

11 Similarly, in Flint v. Corby (1853), 4 Gr. 45 (U.C. Ch.), Esten V.C.succinctly set out this presumption as to remedy as follows (at p. 52):

... The specific performance of an agreement respecting land, is en-forced because the court intends in every particular instance that theestate, which forms the subject matter of the contract, possesses apeculiar value for the purchaser, and that pecuniary damages will fur-nish no adequate equivalent for the loss of his bargain. In this case,the peculiar value, which attracts the jurisdiction of the court, is im-plied and needs not be proved....

[emphasis added]


12 Yet, as these passages indicate, even though specific performancewas the presumed remedy, underlying that presumption was an accept-ance of the general inadequacy of damages as a remedy in the circum-stances of breach of contract for the transfer of land. Robert J. Sharpe inInjunctions and Specific Performance, supra describes the rationale un-derlying that presumption as follows (at para. 7.220):

An award of damages presumes that the plaintiff’s expectation can beprotected by a money award which will purchase substitute perform-ance. If the item bargained for is unique, then there is no exact sub-stitute. The lack of an available substitute produces two problems.First, it makes the purely monetary loss caused by the defendant’sbreach very difficult to measure. There are no comparable sales towhich reference may be made in order to establish an objective esti-mate of the value of the promised item or performance. Secondly,even if an objective value of some sort can be found, the effect ofdenying specific performance and granting damages is to force theplaintiff to settle for some inexact substitute. The plaintiff may, how-ever, have attached to the particular item bargained for a value,sometimes called the “consumer surplus”, which is not reflected byobjective measurement. In such a case, the value of the item to theplaintiff exceeds the market value (even if it can be established) andit is difficult to justify forcing the plaintiff to accept only the lesserobjective value. It might be argued that money relief could also beawarded to compensate the plaintiff for this loss above the marketvalue but, because of its subjective nature, that extra value is ex-tremely difficult to assess. However, if no account is taken of thisaspect of the plaintiff’s interest in performance, the expectation willnot be protected and one of the basic aims of contract remedies willnot be fulfilled. By requiring performance of the defendant’s obliga-tions in specie, the court can avoid the expensive and time-consum-ing task of translating the effect of the breach into money terms and,more importantly, avoid the risk of inaccurate assessment andthereby achieve a virtual guarantee of remedial adequacy in favour ofthe plaintiff. [footnotes omitted]

13 In effect then, Sopinka J.’s obiter reminded us that, notwithstandingthe subject matter, the factual circumstances of a thwarted purchase ofreal property should be examined to see whether the facts are consistentwith the assumptions that underpin expectation damages as adequate pro-tection, i.e., do the facts disclose a prospective purchaser whose motiva-tion for purchase is maximization of investment profit and a subject mat-ter that is a fungible for which there is a readily available substitute?And, where the facts are such, Semelhago reminded us that damages is


the appropriate remedy as it will meet the goal of protecting the prospec-tive purchaser’s expectation.

14 Semelhago does not, however, stand for the proposition that the pre-sumption of uniqueness has been supplanted by a presumption ofreplaceability. See: 904060 Ontario Ltd. v. 529566 Ontario Ltd., 1999CarswellOnt 378 at para. 14, [1999] O.J. No. 355 (Ont. Gen. Div.) andJohn E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2001), 56 O.R.(3d) 341 (Ont. S.C.J.) (“Dodge”). The only change wrought bySemelhago is in the approach of the courts to determining the appropriateremedy; judges must no longer presume the inadequacy of damages as aremedy whenever real property is involved. But, this assessment is not asearch for uniqueness. Rather, it is appropriate to characterize a judge’sassessment in cases of this nature as an inquiry into whether, in the cir-cumstances, damages would be an inadequate remedy. As Lax J. said inDodge:

[55] ... The danger in framing the issue as one of uniqueness (a termthat carries with it a pre-Semelhago antediluvian aroma) is that thereal point of Semelhago will be lost. It is obviously important toidentify the factors or characteristics that make a particular propertyunique to a particular plaintiff. The more fundamental question iswhether the plaintiff has shown that the land rather than its monetaryequivalent better serves justice between the parties. This will dependon whether money is an adequate substitute for the plaintiff’s lossand this in turn will depend on whether the subject matter of the con-tract is generic or unique.

15 In practical terms, this means the prospective purchaser bears the bur-den of adducing evidence that the subject property is specially suited tothe purchaser and that a comparable substitute property is not readilyavailable. These evidentiary points are necessarily intertwined because,on the basis of the evidence, the prospective purchaser must dischargethe overall burden of persuading the judge that the subject property is sodifferent from others that damages is an inadequate remedy and that jus-tice dictates the purchaser should have the subject property. The judge, inturn, must conduct a critical inquiry on the evidence as to the nature andfunction of the subject property in relation to the prospective purchaser.The evidence and analyses will necessarily overlap, but the overall ques-tion the judge must answer is whether the justice of the matter calls foran award of specific performance because damages would be inadequate.

16 The post-Semelhago case law in Saskatchewan has, for the most part,followed the foregoing approach to determining whether compensatory


damages is an adequate remedy for breach of an agreement for sale offarm land. In Stefan v. Lichter, 2005 SKQB 383, 270 Sask. R. 124 (Sask.Q.B.), Dawson J., assessed the evidence on these two basic requirements(i.e., special suitability to the purchaser and lack of available comparablesubstitutes) and found that the farm land in question was so differentfrom other farm land that damages was an inadequate remedy. While sheuses the language of uniqueness, Dawson J.’s approach is consistent withSemelhago and Dodge:

[92] I am satisfied that the land in question here is unique to the ex-tent that its substitute would not be readily available. The landswhich are the subject of this Agreement have the unique character ofvirgin prairie grass (with the exception of the NE 1/4 27). Suchgrassland requires lower maintenance, is more drought tolerant andhas a higher protein content. The evidence before me was that thereis no other such pastureland for sale in the area. As well, these landsare in a proximity reasonably close to the plaintiff’s ranch, allowinghim to achieve a more economically viable unit. Further, the Agree-ment for Sale included a condition that the plaintiff obtain the de-fendants’ Crown leases, and there is no evidence which suggestedthat the plaintiff would be entitled to obtain these Crown leases if hepurchased other lands. I am satisfied that damages would not com-pensate the plaintiff in this case and I am satisfied that he is entitledto an order for specific performance.

17 Similarly, in Morsky v. Harris, [1997] 6 W.W.R. 557 (Sask. Q.B.)(reversed on other grounds [1998] 8 W.W.R. 340 (Sask. C.A.)),Dielschneider J. assessed the objective attributes of the farm land inquestion (at para. 40) as well as the subjective factors articulated by theprospective purchaser (at para. 41) and concluded that damages was aninadequate remedy as follows:

[40] This land is unique. Land of the nature and quality in issue inthis action is rarely for sale on the open market. When it is availablefor sale it is quickly purchased by neighbours in the vicinity. Thetopography of this land slopes gently and the soil is stone free andranks among the most productive. Most convincing is the statementof Betty Harris that her land was unquestionably some of the bestland in Saskatchewan.

[41] Furthermore, the Morsky family owns the land in the close vi-cinity, and the land purchased here would enable them to achieve amore economically viable unit.

[42] I am satisfied damages would not compensate Morsky and I findhim entitled to an order for specific performance.


18 On the other hand, in Ligtermoet v. Wellington (Rural Municipality)No. 97, 2002 SKQB 474, [2003] 3 W.W.R. 339 (Sask. Q.B.) (reversedon other grounds 2003 SKCA 48, [2003] 10 W.W.R. 191 (Sask. C.A.)),Foley J. appeared to take the traditional land-is-inherently-unique ap-proach, but still concluded that, since the farm land had acquired an en-hanced uniqueness by reason of having been in a family for decades,damages was an inadequate remedy:

[44] ... [L]and has historically been viewed as a unique asset andwhere, as here, the land is farm land held by a family for decades, itacquires a special unique significance which cannot readily be mea-sured in dollar terms or readily compensated for in damages. Conse-quently, I conclude that the loss of these particular lands to theLigtermoets would constitute irreparable harm and they should notbe confined to a damage remedy. See Miramichi (City) v. ConcernedCitizens of the Bathurst Highway (1995), 175 N.B.R. (2d) 253 (N.B.Q.B.).

19 In each of these cases, the judge assessed the evidence to determinewhether damages was an adequate remedy and, only upon finding dam-ages inadequate, granted the remedy of specific performance. Albeit thatthey are few in number, these cases indicate that specific performanceremains the principal remedy for breach of contract involving the sale offarm land in Saskatchewan; but, since Semelhago, it is neither a pre-sumptive nor automatic remedy.

20 To bring this back to the matter at hand, the judge summarizedBarry’s reasons for wanting his Parents’ Interests as follows:

[56] The plaintiff claims that the property in question is unique forthe following reasons:

• Barry already has an undivided one-quarter interest in theproperty;

• the land is also the historical yard-site that Barry has operatedhis cattle and farming operation on for over 40 years, with hisparents;

• Barry has an emotional attachment to the land because hefarmed out of the yard-site as did his father and grandfather;

• Barry farmed out of the yard-site with his son Vincent priorto Vincent being accidentally killed. This represents anotheremotional connection for Barry;

• there are no reasonable yard-sites located in proximity toBarry’s home, which is immediately across the road;


• replacement values as to the buildings on the land wouldmake it economically unfeasible to build these facilities onhis own property at his age and stage of farming; and

• purchasing land not located within the vicinity of the primarycattle and farming operation would not be a financially viableoption for Barry.

The Parents’ Estates did not tender much evidence to counter Barry’sevidence nor in respect of the existence or availability of farm land com-parable to the Land.

21 As noted at para. 6 above, the judge’s assessment of whether damageswas an adequate remedy is sparse. I find sufficient error in the judge’sassessment to warrant appellate intervention in this matter. Principally,the judge failed to actually assess whether Barry’s expectation interestunder the agreement for sale could be protected by a monetary award ofsufficient value to allow him to purchase substitute performance. Thiserror is comprised of two omissions:

(a) the judge failed to assess whether the Land was specially suited toBarry; and

(b) the judge failed to assess whether a comparable substitute pro-perty was readily available.

22 The judge did acknowledge that farmers have an attachment to theirland in general and did say that he had carefully considered Barry’s rea-sons for seeking specific performance. However, the judge failed to con-duct a critical inquiry as to the nature and function of the Land in relationto Barry. Rather, the judge focused on Barry’s “motive” for pursuing hisParents’ Interests, from which I take him to mean an ulterior reason forpursuing specific performance. While a judge’s inquiry must involve acritical examination of the motive of the prospective purchaser, “motive”in this sense refers to the nature and the authenticity or cogency of thesubjective and objective factors articulated by the prospective purchaser.Barry’s reasons for deciding to acquire his Parents’ Interests at the timehe entered the agreement for sale are highly material; but a supposedulterior “motive” for pursuing his claim for breach of that agreement isnot. Furthermore, the judge erred by grounding his inquiry into the genu-ineness of this motive on a misapprehension of the facts dating from atime after Barry and his parents had entered the agreement for sale.

23 The judge erred by relying on Barry’s supposed motive for pursuinghis claim to ground his conclusion that a damage award would ade-quately compensate Barry. This approach to determining the appropriate


remedy was in error as it did not address Barry’s expectation interest inperformance under the agreement for sale. In light of this conclusion, it isnecessary to consider afresh whether Barry’s expectation interest wouldbe adequately protected by an award of damages.

24 It cannot be said that the Land is, or that Barry treated the Land as,more akin to a commodity than a tract of land having special attributesnot found in any other farm land. The Land is immediately across theroad from Barry’s home quarter. Barry already owns an undivided one-quarter interest in the Land. The Land once belonged to his grandfatherand is home to his parents’ yard-site. Barry used the Land for over 40years, with his parents, his brother, and his deceased son. These factorsor attributes are cogent and impossible to value precisely. On this basis, Iwould find that an award of damages cannot restore Barry to the positionthat he would have been in had the Parents’ Estates performed under theagreement for sale of the Parents’ Interests. Furthermore, Barry’s evi-dence was also that there are no “reasonable yard-sites” located in closeproximity to his home quarter. Whether or not reasonable yard-sites areavailable, no other yard-site could have the attributes of the Land. Inother words, there is no comparable substitute property, let alone one thatis readily available. If there is any farm land in respect of which compen-satory damages is inadequate, it is typically that farm land which sitsdirectly across the road from a farmer’s home quarter. This is especiallyso where the farmer has an existing legal interest in it, strong emotionaland familial ties to it, and sound economic reasons for making it part ofhis farming operations. Whether pre- or post-Semelhago, such farmlandis “unique” and the appropriate remedy in such a case is an order forspecific performance.

25 I would, therefore, grant the appeal, set aside the award of damagesand substitute therefor an order for specific performance requiring theParents’ Estates to transfer the Parents’ Interests to Barry.

26 As Barry has had success in this Court, I would order the respondentsto pay his costs in this appeal.

Vancise J.A.:

I concur.

Raymond v. Raymond Estate Richards J.A. 261

Richards J.A.:

I concur.

Appeal allowed.


[Indexed as: B. (M.) v. A. (F.)]

M.B. (Petitioner) and F.A. (Respondent)

Manitoba Court of Queen’s Bench

Docket: Winnipeg Centre FD 05-01-76632

2011 MBQB 7

Monnin C.J.Q.B.

Judgment: February 2, 2011

Family law –––– Support — Child support — Duty to contribute — Childwithdrawing from parental control –––– Parties married in 1987 and separatedon July 1, 2004 — Parties had two children — Parties’ daughter was 21 years ofage at time of hearing — On October 5, 2007, final order was made and fatheragreed to pay child support for both children — Following separation, father hadlittle contact with children — Despite father’s attempts to meet daughter morefrequently, this did not occur — Eventually, in January 2009, father met daugh-ter for coffee and lunch on two separate occasions — There was no further com-munication since October 12, 2009, when daughter e-mailed father to say happybirthday — Father brought application to vary child support — Application dis-missed — There was no unilateral termination by daughter of her relationshipwith father — Although daughter’s reluctance to meet father displayed lack ofmaturity, father’s reaction was perhaps cause of further deterioration of situa-tion — Tone of some of father’s e-mails indicated annoyance and impatience —It was difficult to cast blame completely on one side of relationship — In anycase, this was not of “extremely grave” nature which would warrant terminationof obligation of support — It would have been contrary to jurisprudence to ter-minate obligation for support solely on basis of finding of unilateral terminationof relationship.

Cases considered by Monnin C.J.Q.B.:

Caterini v. Zaccaria (2010), 2010 ONSC 6473, 2010 CarswellOnt 9344, [2010]O.J. No. 5291 (Ont. S.C.J.) — considered

Farden v. Farden (1993), 48 R.F.L. (3d) 60, 1993 CarswellBC 619, [1993]B.C.J. No. 1315 (B.C. Master) — referred to

Jandrisch v. Jandrisch (1980), 1980 CarswellMan 30, 3 Man. R. (2d) 135, 16R.F.L. (2d) 239, [1980] M.J. No. 6 (Man. C.A.) — referred to

Olszewski v. Willick (2009), 343 Sask. R. 247, 472 W.A.C. 247, 2009 Carswell-Sask 774, 2009 SKCA 133, [2010] 10 W.W.R. 666, 85 R.F.L. (6th) 295, 313D.L.R. (4th) 635, [2009] S.J. No. 694 (Sask. C.A.) — considered

Pepin v. Jung (2003), 2003 CarswellOnt 1760, 39 R.F.L. (5th) 383, [2003] O.J.No. 1779 (Ont. S.C.J.) — considered

B. (M.) v. A. (F.) Monnin C.J.Q.B. 263

Rebenchuk v. Rebenchuk (2007), 389 W.A.C. 261, 212 Man. R. (2d) 261, 2007MBCA 22, 2007 CarswellMan 59, [2007] 5 W.W.R. 87, 35 R.F.L. (6th) 239,279 D.L.R. (4th) 448, [2007] M.J. No. 130 (Man. C.A.) — followed

Starr v. Starr (2008), 61 R.F.L. (6th) 151, 2008 CarswellMan 569, 2008 MBQB305, 234 Man. R. (2d) 130 (Man. Q.B.) — considered

Wahl v. Wahl (2000), 2000 CarswellAlta 13, 257 A.R. 212, 2 R.F.L. (5th) 307,2000 ABQB 10, [2000] A.J. No. 29 (Alta. Q.B.) — considered

Statutes considered:

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)Generally — referred tos. 2(1) “child of the marriage” — considereds. 17(4) — referred to

Regulations considered:

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)Federal Child Support Guidelines, SOR/97-175

Generally — referred to

APPLICATION by father to vary child support.

Jim M. Stoffman, Q.C., for PetitionerMarta Jean Smith for Respondent

Monnin C.J.Q.B.:

1 The respondent moves to vary a final order whereby he was orderedto pay child support for the two children of the marriage. He does so onthe basis that his daughter, by her conduct, has unilaterally terminatedher relationship with him in an unjustified manner and should no longerbe considered a child of the marriage. The petitioner opposes theapplication.

I. Background2 After 17 years of marriage the parties were separated on July 1, 2004.

They had two children, a daughter, who was 21 years of age at the timeof the hearing, and a son. The children remained with the petitioner afterthe separation and continue to live with her until this day.

3 After a lengthy and acrimonious separation and ensuing legal pro-ceedings, the parties resolved their differences through an agreementwhich was made a final order of this Court on October 5, 2007.


4 Pursuant to that final order, the petitioner agreed to pay child supportfor both children in accordance with his income and as set out by theFederal Child Support Guidelines.

5 As the issue in dispute relates to the obligation to continue to providechild support for the daughter, the respondent’s relationship with herthroughout the marriage and after the separation is the focus of the evi-dence which was received on the motion.

6 The evidence before me is comprised of affidavits filed by the peti-tioner and respondent. No affidavit was filed by the daughter. The peti-tioner’s views with respect to the daughter’s discussions and meetingswith her father, as well as to the daughter’s impressions or beliefs, are inthe form of hearsay in the petitioner’s affidavit. However, a number of e-mails sent by the daughter to her father were filed as exhibits to theaffidavits.

7 The reason for the daughter’s failure to provide an affidavit allegedlyis the difficulty she has had coping with the breakdown of the marriageand the circumstances under which it occurred. According to the peti-tioner, the daughter has undergone counselling to deal with that issue andthe filing of an affidavit by her should not be requested as it would exac-erbate the daughter’s discomfiture.

8 I understand why in certain circumstances the filing of an affidavit bythe adult child would be seen as increasing the confrontation between thechild and parent and may be counter-productive. However, I would ex-pect something more than simply an assertion in an affidavit to supportan argument that this is contrary to the child’s interests. At this point,given the lapse of time and the age of the daughter, I do not believe thatan affidavit would have been such an imposition. To the extent the infor-mation in the petitioner’s affidavit is based upon hearsay, I will give itlittle weight. However, I will give consideration to the e-mails sent bythe daughter to the extent that they corroborate the petitioner’s positionor provide evidence in their own right.

9 The evidence of the parties with respect to the relationship of the re-spondent and his daughter prior to separation and the manner in which itoccurred are at odds. I am of the view that this does not bear much uponthe eventual outcome. In my view, little turns upon that evidence savethat it exemplifies that the parties have quite different versions of whathas occurred to date.

10 Immediately following the separation and to date, the respondent hashad little contact with the children. According to the petitioner it was the


respondent’s choice. According to the respondent, he has made overtureswhich have not been met with success due to the petitioner’sinterference.

11 I am satisfied from the information provided that whatever meetingstook place involving the two spouses would not have gone well. I do notlay blame at either one’s feet because I cannot do so based upon thediametrically opposed versions contained in their affidavits (which werenot cross-examined upon), and will simply acknowledge what appears tohave been the case. The hostility between the parties is palpable. It istherefore not surprising that this tension has been passed on to the rela-tionship between the respondent and children.

12 Shortly after the separation, an incident occurred which left thedaughter with the impression that the respondent had formed a relation-ship with another woman and that that relationship had been the reasonfor the separation. The respondent denied that the relationship existedprior to the separation, but the incident has clouded the relationship be-tween the respondent and his daughter since.

13 In the years after the separation and prior to the final order, the re-spondent met with his children on only a few occasions — in 2004 a visitto the park, and the other a celebration of his daughter’s birthday. He metwith his daughter on one or two occasions in the ensuing years to dealwith travel arrangements to Europe and to Hawaii etc. Despite attemptsby him to have her meet more frequently, this did not occur. He attendedher graduation in June 2006 and at Christmas time that year attempted toarrange for a meeting so he could provide both children with Christmasgifts. They did not meet.

14 The year 2007 was marked by curt and disgruntled e-mails from thedaughter to her father, as well as requests by him for news from her andher brother and to meet to provide them with his gifts at Christmas. Thedaughter made little attempt to respond to her father’s e-mails and re-quests for meetings.

15 This no doubt led to the letter of March 10, 2008 from the respondentto the daughter whereby he explains that in his view he has attempted tomaintain a relationship with his daughter, which she does not appear towish to reciprocate. He asks her in sincere language to reconsider herlack of willingness to engage.

16 Shortly thereafter, at the end of April 2008, an incident occurred atthe son’s rock concert at his school. The respondent attended the concert,apparently without warning to either of his children. When his daughter


came across him at the event, she was surprised and, according to therespondent, rudely asked him to leave which he refused to do. The re-spondent was quite upset by the daughter’s conduct and said so in an e-mail to her within a few weeks after the incident. In the same e-mail,dated May 15th, he refers to his letter of March 10th to which he had notreceived a response. The response from the daughter on the same daywas quite direct. In the e-mail she stated that she still did not believe herfather and did not wish to meet until he was ready to tell her the truth. Itis that e-mail which the respondent says amounts to the culminatingevent evidencing a unilateral termination of the relationship.

17 In the ensuing few months, the respondent advised the petitioner thathe was going to proceed with the motion to end child support for hisdaughter. In late August, upon her return from a trip to Italy, the daughterindicated that she was willing to take steps to attend counselling withhim. After an exchange of a number of e-mails between the parties, thematter was not proceeded with further. While the daughter did see acounsellor in December 2008, it was not with the respondent.

18 In January 2009, the daughter and the respondent met for coffee andlunch on two separate occasions. Then followed a number of e-mail ex-changes, but no further meetings occurred.

19 On October 12, 2009, he received an e-mail from his daughter wish-ing him a happy birthday. There have been no further communicationssince that time and the hearing of the motion.

20 It is acknowledged that the respondent did remarry in September2008 with the individual to whom I referred earlier. Neither of his chil-dren were invited to the wedding or advised that it was taking placebefore it occurred.

II. Legal Issues

(a) Must I find that there has been a material change of circumstancesince the final order of October 5, 2007 before determiningwhether there has been a termination of the relationship betweenthe respondent and the daughter?

(b) Assuming that I can conduct an assessment of whether the daugh-ter continues to be a child of the marriage, has there been a unilat-eral termination by her of her relationship with her father and is itunjustified, warranting the termination of child support?


III. The Law

a) Material Change21 The petitioner’s position is that since this is an application to vary

pursuant to s. 17(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), asinterpreted by the jurisprudence (Jandrisch v. Jandrisch (1980), 3 Man.R. (2d) 135 (Man. C.A.)), there needs to be a material change in the cir-cumstances between the granting of the final order and the granting ofthe order varying to warrant the Court disturbing the prior order.

22 The respondent’s position is twofold, namely, that what is beingasked is the determination of entitlement. If the daughter has ceased tobecome entitled by virtue of the disintegration of the relationship, thenthe respondent need not show material change. Alternatively, it is arguedthat the further deterioration of the relationship between the granting ofthe final order and the events in 2008 amounts to a unilateral termination,which is a material change.

23 It appears to me that the respondent’s position is the correct one. Ifentitlement is the issue, then unless it was specifically dealt with as partof the final order I fail to see how a party can be prevented from raising iteven if the matter is being dealt with a short time after the granting of thefinal order.

24 As well, conduct which would amount to unilateral termination couldconstitute a material change sufficient to engage the jurisdiction of theCourt. For example, if a child who is found to be a child of the marriageby virtue of ongoing post-secondary schooling were to graduate and ob-tain full-time employment, the jurisdiction of the Court must allow it todetermine continued entitlement notwithstanding the previous order.

25 In these circumstances, I find that the Court has jurisdiction to assessentitlement.

b) Child of the Marriage and Unilateral Termination of a Relationship26 There is no serious argument that the daughter is a child of the mar-

riage as contemplated by the Divorce Act, in that she remains at univer-sity. In Rebenchuk v. Rebenchuk, 2007 MBCA 22, 212 Man. R. (2d) 261(Man. C.A.), the Court of Appeal reviewed the jurisprudence to that datewith respect to the issue of when an adult can be a “child of the mar-


riage” within the meaning of the Divorce Act. In reviewing the case law,Chief Justice Scott noted that:

16. The concept that a “child of the marriage” can include an adultchild pursuing post-high school education is entirely a judicial crea-tion. Jackson v. Jackson, [1973] S.C.R. 205, is the seminal case onthe meaning of “children of the marriage.”

27 In Rebenchuk the Court concluded that with the adoption of the Fed-eral Child Support Guidelines in 1997, a new approach was mandated todetermine what, if any, amounts of support were available to an adultchild who fell within the concept of a child of the marriage. The first stepwas to determine whether the adult child was a “child of the marriage”.The Court concluded that the cases on support of adult children werehighly fact-driven, but agreed that the following questions needed to beaddressed when determining whether support was warranted:

41. . . .

(1) What would the parents have decided if their marriage hadremained intact?

(2) To what degree is the child able to earn an income to contrib-ute to his or her own education?

(3) Are the child’s living expenses reasonable?

(4) Are the child’s career plans reasonable?

(5) Is the child likely to benefit from the program of study?

(6) Is part-time employment available and, if so, would it harmthe student’s ability to benefit from her studies?

(7) Has there been an unjustified unilateral termination of a rela-tionship with the payor parent?

(8) Is the student eligible for student loans or other financialassistance?

These factors, of course, are neither all inclusive nor applicable inevery factual situation before the court.

[emphasis mine]

28 The Court also considered the list of factors used in other jurisdic-tions as propounded by Master Joyce in Farden v. Farden (1993), 48R.F.L. (3d) 60, [1993] B.C.J. No. 1315 (B.C. Master).

29 At the time of the hearing of this application, the daughter remained afull-time student in a course of studies with a view to obtaining a Bache-lor of Arts Degree. From the wording of the final order and the materialin the affidavit, I am aware that she is receiving income from a family


trust which is to be used for the purposes of defraying her tuition ex-penses. I have no other information as to other sources of income, if any.

30 The respondent on this motion takes the position that he only wishesme to consider the question of the unilateral termination of the relation-ship, and not do an assessment of the other factors listed in theRebenchuk and Farden decisions. He seeks a variance on that issue aloneand has chosen not to seek one based upon those other factors if they areapplicable.

31 On the issue of parental rejection, the Court of Appeal in Rebenchukhad this to say:

56. Termination of the parent/child relationship is a particularly diffi-cult issue. In my view, selfish or ungrateful children who reject thenon-custodial parent without justification should not expect to besupported through their years of higher education. But this factorrarely stands alone as the sole ground for denying support unless thesituation is “extremely grave” (Pepin v. Jung, [2003] O.J. No. 1779(S.C.J.) (QL)).

32 Pepin v. Jung (2003), 39 R.F.L. (5th) 383, [2003] O.J. No. 1779 (Ont.S.C.J.) was a case where the adult child was removed from the mother’shome by police at the mother’s request after he caused damage to herproperty and threatened to assault her. Justice de Sousa stated as followsas to the use of parental rejection in a determination of whether childsupport should be continued:

32. The above-mentioned jurisprudence indicates that parental rejec-tion is just one factor, albeit an important factor, among many factorssuch as academic ability, educational plans both before and after theseparation and financial need, to be considered in the determinationof whether a child is a “child of the marriage”. I am not convinced onthe case law that parental rejection alone is determinative of the mat-ter unless the circumstances are “extremely grave” such as thosefound in Dalep v. Dalep, supra, involving parental abuse, as referredto by Justice Johnstone in Wahl v. Wahl, supra. Even in Dalep v.Dalep, supra, as Justice Johnstone pointed out, the court consideredother economic factors.

While finding that the circumstances of parental rejection were ex-tremely grave, she nevertheless considered other issues before determin-ing that child support was inappropriate in the circumstances.

33 In the case of Wahl v. Wahl, 2000 ABQB 10, 257 A.R. 212 (Alta.Q.B.) referred to in Pepin, a decision of the late Madam Justice John-stone of the Alberta Court of Queen’s Bench, she refused to deny child


support on the ground of a breakdown of relationship. She dealt with it atlength given that it had great significance in her determination. The factswere that the daughter, in a written letter to her father, advised him thathe was required to provide her with child support and that she would suehim if he did not, but that she would refuse to have any contact with him.She specifically advised him never to try to contact her again. Hestopped providing her with child support on her 18th birthday notwith-standing the terms of a separation agreement providing that he should doso if she continued with her education. After reviewing the factors inFarden, Justice Johnstone stated as follows:

67. It is clear from these cases that the quality of the parent/childrelationship rarely determines the matter. It is but one of the “failing”factors; that is, there must be others in addition to it, unless the cir-cumstances are extremely grave. In fact, Dalep, supra, where the ex-treme case of physical parental abuse was found sufficient to denysupport, the Court mentioned that the child had some type of employ-ment to fall back on.

. . . . .

69. As a result of the foregoing, after considering all the relevant fac-tors, I find that [the child] still remains a “child of the marriage”.However, the breakdown of the relationship with her father remainsof utmost importance in the establishment of the conditions on whichhis ongoing support obligation is ordered.

34 In passing she noted: 56. ... that a breakdown in a relationship is rarely the fault of oneparty but noted that the principles regarding filial responsibilities asdiscussed in Law, supra, have greater application as a child getsolder.

35 In a recent Saskatchewan Court of Appeal decision in Olszewski v.Willick, 2009 SKCA 133, 313 D.L.R. (4th) 635 (Sask. C.A.), the Courtdealt with a trial judge’s determination that two daughters were no longerchildren of the marriage as a result of having terminated the relationshipwith the father by treating him in a disdainful manner and being onlyinterested in using him for their monetary advantage. The Court foundthat the trial judge’s consideration of all the Farden factors notwithstand-ing, his conclusion that they had unilaterally withdrawn from the rela-tionship was the determining factor in his conclusion. In reversing the


motions judge, the Saskatchewan Court of Appeal referred to theRebenchuk decision and stated:

34. ... We agree however that unilateral withdrawal rarely standsalone as a factor disentitling an adult child to maintenance and thatthe threshold for such a finding is high.

36 The Court found that notwithstanding a change in the parental rela-tionship after a certain period where the daughters had little, if any, com-munication with the father, this did not imply that they had no relation-ship at all. They also noted that the quality of the parent/childrelationship by itself rarely was determinative and concluded that theywere still children of the marriage.

37 In Starr v. Starr, 2008 MBQB 305, 234 Man. R. (2d) 130 (Man.Q.B.), my colleague Rivoalen J. had to deal with the issue of whethertwo daughters estranged from their father should continue to receivechild support. The facts were that the two daughters, one 22 years of ageand the other 18 years of age at the time of the application, had not com-municated with their father for a period of 10 years. She reviewedRebenchuk and commented on estranged children and the obligation ofsupport as follows:

35. It must not be forgotten that a parent’s obligation to pay supportis never founded upon consideration. There is no quid pro quo; childsupport is not exchanged for access. When dealing with adult chil-dren, this remains true. This is one reason why the estrangement ofan adult child does not operate automatically or inevitably to extin-guish the support obligation for that child. A non-custodial parentmay have no access to an estranged adult child, and yet the law willin appropriate circumstances recognize and impose a support obliga-tion. The furtherance of an adult child’s education is just one easilyidentified societal goal that is fostered by the imposition of such anobligation.

36. Estrangement is not determinative of whether a support obliga-tion should cease. It is but one of many factors to be considered, al-beit an important one. Those factors and the governing principles arefound in case law and section 3(2) of the Federal Child SupportGuidelines. They have often been considered and applied by thecourts of this province and elsewhere.

38 She concluded that, in the circumstances, the eldest daughter had re-jected her father in a manner which was not justified. She found that itwas an extremely grave situation and, taking the Rebenchuk factors intoconsideration, assessed that the daughter was no longer entitled to sup-


port. As to the younger daughter, however, notwithstanding her findingthat the estrangement was on the same basis as the oldest daughter, sheconcluded as follows:

48. ... it would not be just to discharge her from her parents’ care.She is only 18 years of age and should continue to benefit from bothparents’ support. In the absence of estrangement, she would certainlybe entitled to receive support. The estrangement here does not oper-ate to extinguish her father’s support obligation.

39 In the recent decision of Caterini v. Zaccaria, 2010 ONSC 6473,[2010] O.J. No. 5291 (Ont. S.C.J.), Pazaratz J., in a thorough review ofthe case law on the issue of estrangement of adult children with respectto support obligations, commented on the Starr decision as well asothers. He referred to a summary of a paper on the topic of “Child Sup-port for Estranged Adult Children” (November 2010) presented by Jus-tice Corbett of the Ontario Superior Court as follows:

172. In an excellent paper on Child Support for Estranged AdultChildren, presented in November 2010 at a Superior Court of JusticeJudge’s Conference in Toronto, Justice David L. Corbett thoroughlyreviewed the legislation and authorities. He provided the followingsummary:

(a) Contrary to certain recent literature, there has not been“growing judicial recognition” that the quality of the relation-ship should have a bearing on child support.

(b) Courts have been willing to impose a few specific responsi-bilities on adult support recipients, and may properly do so,but not conditions that include maintaining a social relation-ship with a parent.

(c) The statutory basis for taking the quality of the child-parentrelationship into account is dubious.

(d) There is appellant authority permitting the court to placesome weight on the parent-child relationship, but that author-ity is more ambiguous than trial and motions court decisionssuggest.

(e) On the current state of the law, there seems to be a discretionto take this factor into account, though few courts do, andfewer have found it a significant factor in a support decision.

(f) The better view is that if conduct is ever relevant, it shouldonly be in truly egregious cases of misconduct by a childagainst a parent.

[emphasis mine]


40 In summary, the case law would suggest that a child’s rejection of theparent, even if unjustified, is only a factor which can be considered inremoving the obligation of the parent to support the child. Even in situa-tions where the breakdown is “extremely grave”, it would be rare that theparental rejection is the only factor leading to the termination of childsupport.

IV. Analysis

a) Material Change41 For the reasons set out above, I have concluded that, whether it be on

the basis of an assessment of entitlement or by a determination that thetermination amounted to a material change, I should consider the appli-cation of the respondent as to whether there has been a unilateral termi-nation by his daughter of her relationship with him which is not justifiedin the circumstances. For the reasons set out below, I have concluded thatthat is not the case, but had I, I believe it would have amounted to amaterial change which might have been a factor in assessing the need forvariation of the child support. I will discuss that issue further.

b) Unilateral Termination Which Is Unjustified42 The respondent’s position is that by her unwillingness to communi-

cate either by telephone, by meeting him, or responding in meaningfulfashion to his e-mails, the respondent’s relationship with his daughter hascome to an end. His view is that this was confirmed by her lack of re-sponse to his March 10th letter and to the declaration found in her e-mailof May 15th indicating refusal to accept his explanation of the eventswhich had followed his separation. In the words of his counsel, the pau-city of phone calls or e-mails or meetings can only lead to a conclusionthat there is no relationship at this time between the two. In other words,a relationship must mean more than simply one party sending e-mails forbirthdays and Christmas without getting a response. The willingness ofthe daughter to seek counselling in the fall of 2008 and communicationsin early 2009 were only attempts to stave off an application to terminatechild support.

43 The daughter’s reluctance to meet with her father and her refusal tohave what would be called a more normal relationship because of herdispleasure with her father’s perceived conduct displays a lack of matur-ity. The respondent’s frustration is understandable. However, his reactionhas perhaps been the cause of some of the further deterioration of the


situation. The tone of some of the e-mails in response to her seekingdelays and avoiding meetings with him or attending counselling indicatesannoyance and impatience. His desire to force his daughter to come toterms with the matter and arrange for counselling is not unreasonable,but may not lead to the response that he seeks. His showing up at hisson’s concert unannounced, notwithstanding indications that he may notbe welcome, goes some distance to explain the reaction he received.

44 All this to say that, as is found in many of the cases, it is difficult tocast blame completely on one side of the relationship, although in myview the father has done more to attempt to rekindle this relationshipthan the daughter. Be that as it may, I cannot conclude that there hasbeen a unilateral termination on the basis of the facts before me. If I amwrong on that score, I would also have difficulty concluding that thedaughter’s conduct, although immature, is entirely unjustified given herview of the reasons for the marital breakdown. Finally, I would not be ofthe view that it is of the “extremely grave” nature which warrants a ter-mination of the obligation of support. This is not a situation of parentalabuse or of a complete parental rejection over an unduly lengthy periodof time.

45 Finally, I also conclude that it would be contrary to the jurisprudenceto terminate the obligation for support solely on the basis of a finding ofunilateral termination of the parent/child relationship in the circum-stances of this case. An assessment of the daughter’s situation, includingthe other factors referred to in Rebenchuk, would be required for this totake place. The failure of the daughter to take meaningful steps to sup-port the relationship would be one of the factors that could be consideredin an assessment, but would not necessarily be determinative of the issue.

V. Conclusion46 I would therefore dismiss the respondent’s application to vary, with-

out prejudice to his ability to seek a review of the obligation to supporthis daughter on the basis of a complete assessment of all factors as re-ferred to in Rebenchuk, including the status of his relationship with hisdaughter as a factor.

47 Costs may be spoken to if not agreed upon.

Application dismissed.

R. v. Caines 275

[Indexed as: R. v. Caines]

Her Majesty the Queen and Jeffrey Mark Caines, John ReginaldAlcantara and Alan Peter Knapczyk (Accused)

Alberta Court of Queen’s Bench

Docket: Edmonton 070060157Q1

2011 ABQB 82

S.J. Greckol J.

Heard: September 27 - December 16, 2010

Judgment: February 14, 2011

Criminal law –––– Charter of Rights and Freedoms — Right to be triedwithin reasonable time [s. 11(b)] — Pre-trial delay –––– Accused C, A and Kwere charged with conspiracy to traffic in cocaine, substantive trafficking, andcriminal organization offences — Delays in prosecution resulted from Crown’sdecision to proceed with separate prosecution against A on related charges first,Crown’s late disclosure about implementation of live monitoring requirement inwiretap authorizations, and withdrawal of counsel for C and K due to conflict ofinterest — Accused applied for stay of proceedings based on unreasonable delaypursuant to s. 11(b) of Canadian Charter of Rights and Freedoms — Applicationdismissed — Delay of four years and 6.5 months from date of charges to pro-jected end of trial was sufficiently long to raise issue of reasonableness —About 18 months must be subtracted as inherent delay — Institutional delay ac-counted for some 11 months — Crown clearly was responsible for almost 11months of delay, eight months of which resulted from its late disclosure of useof “put away” function when wiretap authorizations required live monitoring —Defence caused or contributed to seven to 10 months of delay, including about1.75 months caused by withdrawal of counsel for C and K (responsibility forwhich they shared with Crown), four months resulting from A’s change in coun-sel (which occurred during period of overriding institutional delay), and sixmonths consumed by pre-trial motions — “Other reasons for delay” amountedto 9.75 months — Overall period of delay was significant — This was large andcomplex case — Delay attributable to inherent and institutional delay was notexcessive in circumstances — While accused’s Charter interests had been en-gaged, their interests in liberty, security and fair trial affected, and they had suf-fered prejudice attributable to delay, on balance, right to trial within reasonabletime had not been breached so that judicial stay of proceedings should begranted under s. 24(1) of Charter.

Criminal law –––– Charter of Rights and Freedoms — Charter remedies [s.24] — Stay of proceedings –––– Accused C, A and K were charged with con-


spiracy to traffic in cocaine, substantive trafficking, and criminal organizationoffences — Delays in prosecution resulted from Crown’s decision to proceedwith separate prosecution against A on related charges first, Crown’s late disclo-sure about implementation of live monitoring requirement in wiretap authoriza-tions, and withdrawal of counsel for C and K due to conflict of interest — Ac-cused applied for stay of proceedings based on unreasonable delay pursuant to s.24(1) of Canadian Charter of Rights and Freedoms — Application dismissed —Operative period of delay was four years and 6.5 months, from which about 18months must be subtracted as inherent delay — Institutional delay accounted forsome 11 months — Crown clearly was responsible for almost 11 months of de-lay — Defence caused or contributed to seven to 10 months of delay — Overallperiod of delay was significant — Prejudice to Charter-protected interests wasassumed — Security interests of C, A and K were infringed in that they hadborne weight of facing criminal prosecution over protracted period of time,causing harm to their emotional, physical and mental well-being — Prejudicesuffered by C, incarcerated for months under oppressive conditions at remandcentre awaiting trial, was significantly greater than that of K, who was on judi-cial interim release, and A, who was serving prisoner — Charges were very seri-ous, and society had compelling interest in bringing them to trial — This waslarge and complex case — Delay attributable to inherent and institutional delaywas not excessive in circumstances — While accused’s Charter interests hadbeen engaged, their interests in liberty, security and fair trial affected, and theyhad suffered prejudice attributable to delay, C in disproportionately grave fash-ion, on balance, right to trial within reasonable time had not been breached sothat judicial stay of proceedings should be granted under s. 24(1).

Criminal law –––– Charter of Rights and Freedoms — Life, liberty and se-curity of person [s. 7] — Right to make full answer and defence –––– Ac-cused C, A and K were charged with conspiracy to traffic in cocaine, substantivetrafficking, and criminal organization offences — Delays in prosecution resultedfrom Crown’s decision to proceed with separate prosecution against A on re-lated charges first, Crown’s late disclosure about implementation of live moni-toring requirement in wiretap authorizations, and withdrawal of counsel for Cand K due to conflict of interest — Accused applied for stay of proceedingsbased on unreasonable delay pursuant to s. 11(b) of Canadian Charter of Rightsand Freedoms — Application dismissed — Delay of four years and 6.5 monthsfrom date of charges to projected end of trial was sufficiently long to raise issueof reasonableness — About 18 months must be subtracted as inherent delay —Institutional delay accounted for some 11 months — Crown clearly was respon-sible for almost 11 months of delay, eight months of which resulted from its latedisclosure of use of “put away” function when wiretap authorizations requiredlive monitoring — Defence caused or contributed to seven to 10 months of de-lay, including about 1.75 months caused by withdrawal of counsel for C and K(responsibility for which they shared with Crown), four months resulting from

R. v. Caines 277

A’s change in counsel (which occurred during period of overriding institutionaldelay), and six months consumed by pre-trial motions — “Other reasons for de-lay” amounted to 9.75 months — Overall period of delay was significant —This was large and complex case — Delay attributable to inherent and institu-tional delay was not excessive in circumstances — While accused’s Charter in-terests had been engaged, their interests in liberty, security and fair trial affected,and they had suffered prejudice attributable to delay, on balance, right to trialwithin reasonable time had not been breached so that judicial stay of proceed-ings should be granted under s. 24(1) of Charter.

Criminal law –––– Pre-trial procedure — Disclosure of evidence — Disclo-sure — Miscellaneous –––– Accused C, A and K were charged with conspiracyto traffic in cocaine, substantive trafficking, and criminal organization of-fences — Delay in prosecution resulted from Crown’s late disclosure about im-plementation of live monitoring requirement in wiretap authorizations and inter-cepted communications that were “put away” for later monitoring — Accusedapplied for stay of proceedings based on unreasonable delay pursuant to Cana-dian Charter of Rights and Freedoms — Application dismissed — As result oflate disclosure, defence sought adjournment to consider its position, C withdrewhis guilty pleas to two counts in indictment and applied for joinder, A applied tovacate his guilty plea, and accused all renewed their Charter notices — Failureto disclose by police is failure to disclose by Crown — Defence must be activeparticipant in disclosure process and must exercise due diligence in performingthat role — This was complex case with large amount of disclosure — Therewas no lack of due diligence on part of defence counsel in failing to request datawhich would show that live monitoring had, occurred as required by authoriza-tions, since there was no evidence that they were aware of “put away” feature orthat session history reports might reveal its use — Disclosure of use of “putaway” feature should have been made after police became aware of issue — Itwas inferred that had such disclosure been made in timely fashion, C would nothave entered guilty pleas, A and K would not have abandoned their Charter ap-plications, A would not have re-elected to be tried by judge alone, and he wouldnot have entered guilty plea — Period of about eight months from time whencourt was advised of late disclosure to start of delay motion was attributable tolate disclosure of use of “put away” feature and was responsibility of Crown —On balance, right to trial within reasonable time had not been breached so thatjudicial stay of proceedings should be granted.

Professions and occupations –––– Barristers and solicitors — Relationshipwith client — Conflict of interest — Duty to former client — Possession ofconfidential information –––– Accused C, A and K were charged with conspir-acy to traffic in cocaine, substantive trafficking, and criminal organization of-fences — Delay in prosecution resulted from withdrawal of JC, counsel for Cand K, due to conflict of interest — Accused applied for stay of proceedings


based on unreasonable delay pursuant to Canadian Charter of Rights and Free-doms — Application dismissed — JC had previously represented M, unindictedco-conspirator whom Crown intended to call as “co-operating witness,” and heacted in separate proceedings for alleged co-conspirators — JC had conflict ofinterest in representing C and K because he was former counsel to M, keyCrown witness — It could be inferred that confidential information was im-parted to JC by M, as well as by others whom JC represented in individual butrelated proceedings and who were now unindicted co-conspirators in presentprosecution — Waivers signed by C and K regarding representation by JC didnot deal with M conflict or multiple concurrent and successive representationissues; nor was conflict resolved by having independent counsel cross-examineM — Obligation to raise conflict issue is shared by Crown and defence — Itcould be inferred that there was seven-week delay in scheduling trial caused byJC’s application to withdraw as counsel — With respect to C and K, responsibil-ity for that delay was shared by Crown and defence — With respect to A, timeperiod was regarded as “other reason for delay” and Crown delay — On bal-ance, right to trial within reasonable time had not been breached so that judicialstay of proceedings should be granted.

Criminal law –––– Constitutional authority — Prosecutorial responsibil-ity — Rights and duties — In prosecution –––– Accused C, A and K werecharged with conspiracy to traffic in cocaine, substantive trafficking, and crimi-nal organization offences (“prosecution A”) — A was also charged with con-spiracy to traffic in cocaine and various other drug and weapons offences onseparate information (“prosecution B”) — Delay in prosecution A resulted fromCrown’s decision to proceed with prosecution B first — Accused applied forstay of proceedings based on unreasonable delay pursuant Canadian Charter ofRights and Freedoms — Application dismissed — Crown acted reasonably inseparating prosecution A and prosecution B, rather than charging all of accusedin two matters on one indictment — It was reasonable for Crown to want toschedule preliminary inquiries in both matters back-to-back to maximize effi-ciency, and to run preliminary inquiries involving charges of this complexitycontinually rather than in segments — Institutional delay was more significantcause of delay from end of intake period to start of preliminary inquiry in prose-cution A — Even if prosecution A had proceeded first, preliminary inquirycould not have begun until five weeks before it did — Since A was accused inboth matters, he could not argue that Crown was responsible for delay betweenstart of preliminary inquiry in prosecution B and start of preliminary inquiry inprosecution A — Crown had to select one of matters to proceed first — Therewas no suggestion that it acted improperly in choosing to schedule prosecutionB preliminary inquiry before that of prosecution A — On balance, right to trialwithin reasonable time had not been breached so that judicial stay of proceed-ings should be granted.

R. v. Caines 279

Cases considered by S.J. Greckol J.:

A.U.P.E. v. U.N.A., Local 168 (2009), [2009] Alta. L.R.B.R. 64, 1 Alta. L.R.(5th) 217, (sub nom. Alberta Union of Provincial Employees v. UnitedNurses of Alberta, Local 168) 448 A.R. 101, [2009] 6 W.W.R. 235, (subnom. Alberta Union of Provincial Employees v. United Nurses of Alberta,Local 168) 447 W.A.C. 101, 2009 C.L.L.C. 220-030, 2009 CarswellAlta 51,2009 ABCA 33, 164 C.L.R.B.R. (2d) 105, 94 Admin. L.R. (4th) 169, 307D.L.R. (4th) 44 (Alta. C.A.) — considered

Argentina (Republic) v. Mellino (1987), 1987 CarswellAlta 94, 1987 Carswell-Alta 581, 52 Alta. L.R. (2d) 1, (sub nom. Argentina v. Mellino) [1987] 1S.C.R. 536, (sub nom. Republic of Argentina v. Mellino) 40 D.L.R. (4th) 74,76 N.R. 51, [1987] 4 W.W.R. 289, 80 A.R. 1, 33 C.C.C. (3d) 334, 28 C.R.R.262, EYB 1987-66908 (S.C.C.) — referred to

Bolkiah v. KPMG (1998), [1999] 2 W.L.R. 215, [1999] 1 All E.R. 517, [1999] 2A.C. 222, 45 B.L.R. (2d) 201, [1998] H.L.J. No. 51 (U.K. H.L.) —considered

MacDonald Estate v. Martin (1990), [1991] 1 W.W.R. 705, 77 D.L.R. (4th) 249,121 N.R. 1, (sub nom. Martin v. Gray) [1990] 3 S.C.R. 1235, 48 C.P.C. (2d)113, 70 Man. R. (2d) 241, 1990 CarswellMan 384, 285 W.A.C. 241, 1990CarswellMan 233, [1990] S.C.J. No. 41, EYB 1990-68602 (S.C.C.) —followed

R. v. Adam (2006), 2006 CarswellBC 822, 2006 BCSC 350, [2006] B.C.J. No.535 (B.C. S.C.) — considered

R. v. Alcantara (2009), 24 Alta. L.R. (5th) 248, 2009 ABQB 524, 2009CarswellAlta 1472 (Alta. Q.B.) — referred to

R. v. Askov (1990), 79 C.R. (3d) 273, 59 C.C.C. (3d) 449, 49 C.R.R. 1, 74D.L.R. (4th) 355, 75 O.R. (2d) 673, [1990] 2 S.C.R. 1199, 113 N.R. 241, 42O.A.C. 81, [1990] S.C.J. No. 106, 1990 CarswellOnt 111, 1990 CarswellOnt1005 (S.C.C.) — considered

R. v. Atkinson (1991), 5 O.R. (3d) 301, 68 C.C.C. (3d) 109, 50 O.A.C. 48, 1991CarswellOnt 723, [1991] O.J. No. 1913 (Ont. C.A.) — considered

R. v. Atkinson (1992), 76 C.C.C. (3d) 288, 59 O.A.C. 41, 11 O.R. (3d) 160, 143N.R. 389, [1992] 3 S.C.R. 465, 1992 CarswellOnt 1009F, 1992 CarswellOnt1009, EYB 1992-67583 (S.C.C.) — referred to

R. v. Bains (2010), 285 B.C.A.C. 227, 482 W.A.C. 227, 254 C.C.C. (3d) 170,210 C.R.R. (2d) 287, 2010 BCCA 178, 2010 CarswellBC 841 (B.C.C.A.) — considered

R. v. Baltovich (2003), 170 O.A.C. 327, [2003] O.J. No. 2285 (Ont. C.A.) —referred to

R. v. Batte (2000), 34 C.R. (5th) 263, 145 C.C.C. (3d) 498, 76 C.R.R. (2d) 189,(sub nom. R. v. W.B.) 133 O.A.C. 3, 2000 CarswellOnt 2114, (sub nom. R. v.W.B.) [2000] O.J. No. 2186 (Ont. C.A.) — considered


R. v. Beare (1987), [1989] 1 W.W.R. 97, [1988] 2 S.C.R. 387, 55 D.L.R. (4th)481, 88 N.R. 205, 71 Sask. R. 1, 45 C.C.C. (3d) 57, 66 C.R. (3d) 97, 36C.R.R. 90, 1987 CarswellSask 674, 1987 CarswellSask 675, EYB 1987-67944, [1987] S.C.J. No. 92 (S.C.C.) — considered

R. v. Beauchamp (2008), 2008 CarswellOnt 7974, [2008] O.J. No. 5315 (Ont.S.C.J.) — considered

R. v. Berube (2004), 2004 ABQB 131, 2004 CarswellAlta 1956, [2004] A.J. No.173 (Alta. Q.B.) — referred to

R. v. Blake (2010), 253 Man. R. (2d) 121, 2010 MBQB 115, 2010 CarswellMan244, [2010] 11 W.W.R. 308 (Man. Q.B.) — considered

R. v. Bogiatzis (2002), 2002 CarswellOnt 6122 (Ont. S.C.J.) — consideredR. v. Brissett (2005), 2005 CarswellOnt 370, 28 C.R. (6th) 257, 74 O.R. (3d)

248, [2005] O.J. No. 343 (Ont. S.C.J.) — consideredR. v. Caines (2010), 2010 ABQB 612, 2010 CarswellAlta 1891 (Alta. Q.B.) —

referred toR. v. Caines (2010), 2010 CarswellAlta 1892, 2010 ABQB 616 (Alta. Q.B.) —

referred toR. v. Caines (2010), 2010 CarswellAlta 2005, 2010 ABQB 646 (Alta. Q.B.) —

referred toR. v. Chan (2003), 2003 ABQB 759, 2003 CarswellAlta 1292, 15 C.R. (6th) 53,

342 A.R. 201, 22 Alta. L.R. (4th) 278, [2004] 7 W.W.R. 88, [2003] A.J. No.1117 (Alta. Q.B.) — considered

R. v. Chang (2005), [2005] O.T.C. 899, 2005 CarswellOnt 4991, [2005] O.J. No.4381 (Ont. S.C.J.) — considered

R. v. Con-Drain Co. (1983) Ltd. (2008), 2008 CarswellOnt 1424, 2008 ONCJ114, 172 C.R.R. (2d) 299, [2008] O.J. No. 1012 (Ont. C.J.) — considered

R. v. Conway (1989), [1989] 1 S.C.R. 1659, 96 N.R. 241, 34 O.A.C. 165, 49C.C.C. (3d) 289, 70 C.R. (3d) 209, 40 C.R.R. 1, 1989 CarswellOnt 94, 1989CarswellOnt 962, EYB 1989-67460, [1989] S.C.J. No. 70 (S.C.C.) —considered

R. v. Dix (1998), 218 A.R. 18, 1998 ABQB 92, 1998 CarswellAlta 990 (Alta.Q.B.) — considered

R. v. Ebrekdjian (2010), 2010 CarswellOnt 3908, 2010 ONSC 3097 (Ont.S.C.J.) — considered

R. v. Edkins (2002), 2002 NWTSC 9, 2002 CarswellNWT 13, [2002] N.W.T.J.No. 8 (N.W.T. S.C.) — referred to

R. v. Ghavami (2010), 207 C.R.R. (2d) 213, 253 C.C.C. (3d) 74, 2010 BCCA126, 2010 CarswellBC 549, 284 B.C.A.C. 286, [2010] B.C.J. No. 416 (B.C.C.A.) — considered

R. v. Godin (2009), 192 C.R.R. (2d) 184, 67 C.R. (6th) 95, 389 N.R. 1, 245C.C.C. (3d) 271, [2009] 2 S.C.R. 3, 2009 CarswellOnt 3100, 2009 Carswell-Ont 3101, 2009 SCC 26, 309 D.L.R. (4th) 149, 252 O.A.C. 377, [2009]S.C.J. No. 26 (S.C.C.) — considered

R. v. Caines 281

R. v. Graff (1993), 80 C.C.C. (3d) 84, 135 A.R. 235, 33 W.A.C. 235, 1993CarswellAlta 744, [1993] A.J. No. 85 (Alta. C.A.) — considered

R. v. Guilbride (2006), 2006 BCCA 392, 2006 CarswellBC 2224, 145 C.R.R.(2d) 91, (sub nom. R. v. Thomson) 211 C.C.C. (3d) 465, (sub nom. R. v.Thomson) 230 B.C.A.C. 128, (sub nom. R. v. Thomson) 380 W.A.C. 128,[2006] B.C.J. No. 2047 (B.C. C.A.) — considered

R. v. Heikel (1992), 72 C.C.C. (3d) 481, 125 A.R. 298, 14 W.A.C. 298, 10C.R.R. (2d) 72, 1992 CarswellAlta 679, [1992] A.J. No. 489 (Alta. C.A.) —considered

R. v. Kalanj (1989), 1989 CarswellBC 629, 1989 CarswellBC 709, [1989] 1S.C.R. 1594, [1989] 6 W.W.R. 577, 96 N.R. 191, 70 C.R. (3d) 260, 40C.R.R. 50, 48 C.C.C. (3d) 459, EYB 1989-66985, [1989] S.C.J. No. 71(S.C.C.) — referred to

R. v. Koruz (1992), 72 C.C.C. (3d) 353, 10 C.R.R. (2d) 113, 125 A.R. 161, 14W.A.C. 161, 1992 CarswellAlta 583, [1992] A.J. No. 490 (Alta. C.A.) —considered

R. v. Kporwodu (2005), 29 C.R. (6th) 60, 75 O.R. (3d) 190, 2005 CarswellOnt1404, 196 O.A.C. 272, (sub nom. R. v. K.) 195 C.C.C. (3d) 501, 132 C.R.R.(2d) 324, [2005] O.J. No. 1405 (Ont. C.A.) — considered

R. v. Krisza (2009), 2009 CarswellOnt 3024, [2009] O.J. No. 2205 (Ont.S.C.J.) — considered

R. v. Lee (2010), 2010 ONCJ 163, 2010 CarswellOnt 2730, [2010] O.J. No.1831 (Ont. C.J.) — considered

R. v. M. (C.A.) (1996), 46 C.R. (4th) 269, 194 N.R. 321, 105 C.C.C. (3d) 327, 73B.C.A.C. 81, 120 W.A.C. 81, [1996] 1 S.C.R. 500, 1996 CarswellBC 1000,1996 CarswellBC 1000F, EYB 1996-67066, [1996] S.C.J. No. 28(S.C.C.) — followed

R. v. MacDougall (1998), 128 C.C.C. (3d) 483, 165 D.L.R. (4th) 193, [1998] 3S.C.R. 45, 1998 CarswellPEI 88, 1998 CarswellPEI 87, 19 C.R. (5th) 275,231 N.R. 147, 168 Nfld. & P.E.I.R. 83, 517 A.P.R. 83, 56 C.R.R. (2d) 189,[1998] S.C.J. No. 74 (S.C.C.) — considered

R. v. McQuaid (1998), (sub nom. R. v. Dixon) [1998] 1 S.C.R. 244, (sub nom. R.v. Dixon) 166 N.S.R. (2d) 241, (sub nom. R. v. Dixon) 498 A.P.R. 241, (subnom. R. v. Dixon) 50 C.R.R. (2d) 108, (sub nom. R. v. Dixon) 222 N.R. 243,1998 CarswellNS 7, 1998 CarswellNS 8, 13 C.R. (5th) 217, (sub nom. R. v.Dixon) 122 C.C.C. (3d) 1, [1998] S.C.J. No. 17 (S.C.C.) — considered

R. v. Mills (1999), 180 D.L.R. (4th) 1, 1999 CarswellAlta 1055, 1999 Carswell-Alta 1056, 139 C.C.C. (3d) 321, 248 N.R. 101, 28 C.R. (5th) 207, [1999] 3S.C.R. 668, 75 Alta. L.R. (3d) 1, 69 C.R.R. (2d) 1, [2000] 2 W.W.R. 180,244 A.R. 201, 209 W.A.C. 201, [1999] S.C.J. No. 68 (S.C.C.) — considered

R. v. Morin (1992), 12 C.R. (4th) 1, 71 C.C.C. (3d) 1, 134 N.R. 321, 8 C.R.R.(2d) 193, 53 O.A.C. 241, [1992] 1 S.C.R. 771, 1992 CarswellOnt 984, 1992


CarswellOnt 75, EYB 1992-67508, [1992] S.C.J. No. 25 (S.C.C.) —followed

R. v. Neil (2002), 317 A.R. 73, 284 W.A.C. 73, 168 C.C.C. (3d) 321, 6 Alta.L.R. (4th) 1, 6 C.R. (6th) 1, [2002] 3 S.C.R. 631, 2002 CarswellAlta 1301,2002 CarswellAlta 1302, 2002 SCC 70, (sub nom. Neil v. R.) 218 D.L.R.(4th) 671, [2003] 2 W.W.R. 591, 294 N.R. 201, [2002] S.C.J. No. 72, REJB2002-35135 (S.C.C.) — considered

R. v. Pangman (2000), 2000 MBQB 71, 2000 CarswellMan 283, 149 Man. R.(2d) 68 (Man. Q.B.) — considered

R. v. Parsons (1992), 13 C.R. (4th) 248, 100 Nfld. & P.E.I.R. 260, 318 A.P.R.260, 72 C.C.C. (3d) 137, 1992 CarswellNfld 9, [1992] N.J. No. 97 (Nfld.C.A.) — considered

R. v. Port Chevrolet Oldsmobile Ltd. (2009), 196 C.R.R. (2d) 334, 2009 BCCA357, 63 C.B.R. (5th) 1, 2009 CarswellBC 2132, 463 W.A.C. 254, 274B.C.A.C. 254, [2009] G.S.T.C. 109, 246 C.C.C. (3d) 355 (B.C. C.A.) —considered

R. v. Pusic (1996), 13 O.T.C. 260, 1996 CarswellOnt 3542, 30 O.R. (3d) 692,[1996] O.J. No. 3329 (Ont. Gen. Div.) — considered

R. v. Rahey (1987), 75 N.R. 81, [1987] 1 S.C.R. 588, 39 D.L.R. (4th) 481, 78N.S.R. (2d) 183, 33 C.C.C. (3d) 289, 57 C.R. (3d) 289, 33 C.R.R. 275, 1987CarswellNS 340, 1987 CarswellNS 38, 193 A.P.R. 183, EYB 1987-67384,[1987] S.C.J. No. 23 (S.C.C.) — referred to

R. v. Robillard (1986), 14 O.A.C. 314, 23 C.R. (3d) 364, 1986 CarswellOnt1032, 28 C.C.C. (3d) 22, 23 C.R.R. 364, [1986] O.J. No. 261 (Ont. C.A.) —considered

R. v. S. (R.P.) (2010), 2010 ABQB 418, 2010 CarswellAlta 2526, [2010] A.J.No. 1535 (Alta. Q.B.) — considered

R. v. Schiewe (1993), 79 C.C.C. (3d) 574, 135 A.R. 335, 33 W.A.C. 335, (subnom. R. v. Schiewe) [1993] 1 S.C.R. 1134, 150 N.R. 303, 14 C.R.R. (2d)190, 1993 CarswellAlta 569, 1993 CarswellAlta 569F, EYB 1993-66903,[1993] S.C.J. No. 32 (S.C.C.) — referred to

R. v. Shamray (2005), 2005 MBQB 1, 2005 CarswellMan 10, [2005] 6 W.W.R.386, 191 Man. R. (2d) 55, [2005] M.J. No. 10 (Man. Q.B.) — referred to

R. v. Siemens (2000), 2000 CarswellAlta 235, 260 A.R. 57, [2000] A.J. No. 303(Alta. Q.B.) — considered

R. v. Smith (1989), [1989] 2 S.C.R. 1120, 52 C.C.C. (3d) 97, 102 N.R. 205, 63Man. R. (2d) 81, 45 C.R.R. 314, 73 C.R. (3d) 1, 1989 CarswellMan 334,1989 CarswellMan 13, EYB 1989-67172, [1989] S.C.J. No. 119 (S.C.C.) —considered

R. v. Smith (2008), 2008 SKCA 20, 232 C.C.C. (3d) 176, [2008] 4 W.W.R. 27,2008 CarswellSask 87, 417 W.A.C. 45, 307 Sask. R. 45, [2008] S.J. No. 97(Sask. C.A.) — referred to

R. v. Caines 283

R. v. Stewart (1999), 100 O.T.C. 194, 1999 CarswellOnt 2028, [1999] O.J. No.2448 (Ont. S.C.J.) — considered

R. v. Stewart (2001), 2001 CarswellOnt 1656, 148 O.A.C. 234 (Ont. C.A.) —referred to

R. v. T. (L.A.) (1993), 1993 CarswellOnt 1497, 14 O.R. (3d) 378, 18 C.R.R. (2d)235, 84 C.C.C. (3d) 90, 64 O.A.C. 380, [1993] O.J. No. 1605 (Ont. C.A.) —considered

R. v. Terezakis (2007), 2007 BCCA 384, 2007 CarswellBC 1669, 245 B.C.A.C.74, 405 W.A.C. 74, 223 C.C.C. (3d) 344, 51 C.R. (6th) 165, [2007] B.C.J.No. 1592 (B.C. C.A.) — referred to

R. v. Thompson (1990), 1990 CarswellBC 218, 1990 CarswellBC 760, [1990] 6W.W.R. 481, [1990] 2 S.C.R. 1111, 49 B.C.L.R. (2d) 321, 50 C.R.R. 1, 114N.R. 1, 73 D.L.R. (4th) 596, 59 C.C.C. (3d) 225, 80 C.R. (3d) 129, EYB1990-67016, [1990] S.C.J. No. 104 (S.C.C.) — considered

R. v. W. (W.) (1995), 1995 CarswellOnt 983, 43 C.R. (4th) 26, 100 C.C.C. (3d)225, 84 O.A.C. 241, 25 O.R. (3d) 161, [1995] O.J. No. 2383 (Ont. C.A.) —considered

R. v. Williams (2010), 2010 CarswellBC 1706, 2010 BCPC 122 (B.C. Prov.Ct.) — referred to

R. v. Yakimishyn (2009), 470 D.L.R. (4th) 140, 2009 ABQB 162, 2009CarswellAlta 569 (Alta. Q.B.) — referred to

Rakusen v. Ellis (1912), [1911-13] All E.R. Rep. 813, [1912] 1 Ch. 831 (Eng.C.A.) — considered

Statutes considered:

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

Generally — referred tos. 7 — considereds. 8 — considereds. 11(a) — considereds. 11(b) — considereds. 11(d) — considereds. 24(1) — considereds. 24(2) — considered

Controlled Drugs and Substances Act, S.C. 1996, c. 19Generally — referred tos. 5(1) — considered

Criminal Code, R.S.C. 1985, c. C-46Generally — referred tos. 186 — referred tos. 189(5) — referred tos. 355(a) — referred tos. 465(1)(c) — considered


s. 467.12 [en. 2001, c. 32, s. 27] — considereds. 467.13 [en. 2001, c. 32, s. 27] — considereds. 467.14 [en. 2001, c. 32, s. 27] — referred tos. 515(10) — referred tos. 523(2)(b) — referred tos. 525 — referred tos. 718.2 [en. 1995, c. 22, s. 6] — considereds. 743.6(1.2) [en. 2001, c. 32, s. 45] — referred to

Occupational Health and Safety Act, R.S.A. 2000, c. O-2Generally — referred to

APPLICATION by three accused for stay of proceedings based on unreasonabledelay pursuant to ss. 7, 11(b) and 24(1) of Canadian Charter of Rights andFreedoms.

Dennis C. Hrabcak for CrownA. Clayton Rice for Accused, John Reginald AlcantaraGregory C. Lazin for Accused, Jeffrey CainesAjay Juneja, Hasaan Jomha for Accused, Alan Peter Knapczyk

S.J. Greckol J.:

I. Introduction1 The three Accused, Jeffrey Mark Caines (Caines), John Reginald Al-

cantara (Alcantara) and Alan Peter Knapczyk (Knapczyk), have appliedfor 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 anapplication 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 investigationinvolving the Edmonton and Fort McMurray Drug Sections of the RoyalCanadian Mounted Police (RCMP) as well as the Edmonton Police Ser-vice (EPS). The investigation, referred to as Project Koker, also engagedthe 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 tech-niques including searches of electronic databases, physical surveillance,informants, telephone number recorder warrants, tracking device war-rants, video surveillance warrants and search warrants obtained pursuantto the Criminal Code (Code), and the Controlled Drugs and SubstancesAct (CDSA).

R. v. Caines S.J. Greckol J. 285

4 The police also obtained five authorizations to intercept private com-munications under s. 186 of the Code, designated as follows:

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

2. WT1712 consisting of two authorizations granted by SlatterJ. on October 17, 2005, each valid for 60 days up to andincluding December 16, 2005; and,

3. WT1713 consisting of two authorizations granted by SlatterJ. on December 14, 2005, each valid for 60 days up to andincluding February 13, 2006.

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

6 On January 8, 2007, Information No. 070060157P1 was sworn as areplacement for Information No. 061444279P1. Caines, Alcantara andKnapczyk were jointly charged in this new Information with conspiracyto traffic in cocaine contrary to s. 5(1) of the CDSA and s. 465(1)(c) ofthe Code and substantive trafficking contrary to s. 5(1) of the CDSA.Caines also was charged in a separate count with a criminal organizationoffence contrary to s. 467.13 of the Code. Alcantara and Knapczyk werejointly charged with a criminal organization offence contrary to s. 467.12of the Code. Throughout the disclosure, this prosecution was referred toas “Koker A”.

7 On December 4, 2007, Information No. 071521769P1 was sworn as areplacement for Information No. 061444147P1. In this Information, Al-cantara was jointly charged with Beau Michael Yakimishyn, Sean DavidCritch, Derek Albert Ezekiel and Nicholas James Roberts with conspir-acy 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 variousother drug and weapons offences. Throughout the disclosure, this prose-cution was referred to as “Koker B”.

8 The police also arrested a number of other persons at various loca-tions who were charged in multiple separate proceedings. Ricco King,Farhan Haider Sattar, Kamran Sattar and Melissa Diane King werecharged 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 com-mence in the Court of Queen’s Bench on November 8, 2010. Throughoutthe disclosure received by the Applicants, this prosecution was referredto as “Koker C.”

9 The disclosure received by the Applicants consists of over 8,317 doc-uments totalling in excess of 400,000 pages. This material was providedto the Defence predominately in electronic form by way of an externalhard drive and multiple DVDs. The narrative logs of the intercepted pri-vate communications contain 51,827 sessions totalling 59,530 pages. Alldisclosure provided to one counsel in the Koker prosecutions was pro-vided to all, whether relevant to the particular Koker prosecution thatcounsel 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 inter-cepted private communications into evidence at trial. A disc containingthe intercepted private communications and four binders containing thetranscripts in hard copy have been entered as exhibits in the trial, al-though as a result of late disclosure, the admissibility of this material willbe re-visited.

II. Judicial History11 Counsel for Alcantara prepared a summary of the judicial history of

Koker “A,” which was adopted by the Crown and largely adopted byCaines. Knapczyk adopted the judicial history accepted by Caines.Caines and Knapczyk have provided additional information that pertainsto them.

A. Provincial Court Proceedings

November 26, 200612 Alcantara and Knapczyk were arrested on November 26, 2006.

December 200613 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 arrestand was represented by Jamel (“Jake”) Chadi.


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

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

January 200716 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 Desig-nation of Counsel had been signed by Caines but had not yet been filed.Mr. Gill also appeared as agent for Mr. Chadi for Knapcayk. Electionand plea were reserved to February 26, 2007.

18 Mr. Moustarah again appeared for Alcantara. He advised the Court hehad received a DVD containing initial disclosure. Alcantara’s plea wasreserved to February 26, 2007.

February 26, 200719 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, 200720 Koker A returned before Spence P.C.J., at which time it was further

adjourned by agreement of counsel to May 1, 2007.

May 1, 200721 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 Courtthat it was the Crown’s intention to conduct consecutive preliminary in-quiries, with the prosecution in Koker B proceeding first. The followingexchange took place between the Court and Mr. Rice respecting thescheduling of dates:

MR. RICE: ... I can advise the Court that pursuant to this we need toset some Preliminary Inquiry dates. I’ve — our departmenthas canvassed with Judge Lefever with regard to opening up a


courtroom. The idea is going to be to open up a courtroom inlate September, October, and run what I would submit to bethe first Preliminary Inquiry which would be with regard toMr. 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 of-fice has the carriage of the second file which is the Mr. Al-cantara, Mr. Caines, and Mr. Knapczyk file. So the idea willbe 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 thesame wiretap affidavit. So we’re going to try and do that, setup the dates.

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

May 4, 200723 Caines, Alcantara (with D. Song acting as agent for Mr. Moustarah)

and Knapczyk appeared before Wong P.C.J. on May 4, 2007, at whichtime they made elections for trial by judge alone and entered not guiltypleas in both prosecutions. Gregory Rice appeared again for the Crownon both cases and advised the court that preliminary inquiry dates hadbeen reserved. The preliminary inquiry in Koker B, which the Crownwished to proceed with first, was scheduled for February 25, 2008 toApril 4, 2008, with a pre-preliminary inquiry conference scheduled forNovember 1, 2007. The preliminary inquiry in Koker A was scheduledfor April 7, 2008 to May 22, 2008, with a pre-preliminary inquiry confer-ence scheduled for December 4, 2007.

June 1, 200724 The hard drive containing the majority of disclosure was delivered to

Mr. Chadi, counsel for Caines and Knapczyk.

August 27, 200725 The hard drive containing the majority of disclosure was delivered to

Clayton Rice, counsel for Alcantara.


November 13, 200726 Both cases were brought forward at the request of Anderson P.C.J.

for a case management conference, the purpose of which was to ensurethat issues had not arisen which would prevent the preliminary inquiriesfrom proceeding on the scheduled dates.

27 Alcantara’s present counsel, Clayton Rice, confirmed that he hadbeen retained by Alcantara on Koker A, having become counsel of re-cord for Alcantara in Koker B on September 27, 2007.

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

29 The issue of Mr. Chadi’s conflict of interest was raised by AndersonP.C.J. as Mr. Chadi was representing Caines; John Norman Caines, analleged co-conspirator; Charles Flight (“Flight”), an alleged co-conspira-tor; Knapczyk; Mark Andrew Hoskins (“Hoskins”), an alleged co-con-spirator; and Michael Marche (“Marche”), a main Crown witness andunindicted coconspirator. Neither Crown nor other Defence counselraised an objection at the time to Mr. Chadi representing theseindividuals.

November 16, 200730 Caines, represented by Chadi, spoke to judicial interim release in re-

lation to the present matter (Information No. 070060157P1) before DayP.C.J.. The Crown opposed his bail application.

November 22, 200731 Caines and Knapczyk signed the first set of consents regarding their

joint representation by Mr. Chadi and certified they had received inde-pendent legal advice on the issue.

December 7, 200732 Caines’ bail hearing concluded on December 7th with Caines being

granted bail.

January 25, 200833 Caines’ bail order was signed after a number of changes were made,

some of which were consented to and some opposed by the Crown. Bailconsisted of $61,250.00 in cash and securities totalling $1,000,000.00


January 31, 200834 Caines was released from custody after posting the required amounts.

February 22, 200835 Caines’ bail order was revoked upon Crown application. Caines re-

turned 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 IndependentAdvice.

37 Knapczak signed an amended Consent form regarding representationby Mr. Chadi and Ajay Juneja signed the Certificate of IndependentAdvice.

February 25,200838 The preliminary inquiry in Koker B commenced before Malin P.C.J.

on replacement Information No. 071521 769P1. Prior to the preliminaryinquiry, Nicholas James Roberts was added as an accused in that Infor-mation and on February 21, 2008, a stay of proceedings was entered re-specting the accused Derek Albert Ezekiel.

March 4, 200839 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 pro-vided the following background to the issue for the benefit of counsel forAlcantara, who had not been aware of the conflict which had arisen in arelated proceeding regarding John Norman Caines and Flight, who hadbeen 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 apreliminary inquiry for a different Mr. Caines — I assumethey are related. I do not know — and a Mr. Flight, who arejointly charged with a conspiracy and some other charges, Ibelieve. That preliminary inquiry was scheduled to com-mence on Monday of this week, and that commencement datehas been put over a week while the issue of conflict is sortedout. The — and it may or may not be able to proceed. It punc-tuated, however, the fact that if a conflict rears its head inactuality in proceedings, particularly at the eleventh hour, itcan cause cases to go sideways very quickly, and that is par-


ticularly of concern where accused persons are in custody andparticularly where the accused persons in custody are not theperson to whom the conflict relates, and for that reason, Iwanted to address as quickly as possible most specifically anyquestion of conflict that could exist in this prosecution be-cause 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 withrespect to the same charges, —

MR. HRABCAK: Some of them, they are.

THE COURT: ...Now, I am assuming that in light of the issues thathave arisen in the other matter, that the Crown has turnedtheir mind more closely to whether from the Crown’s per-spective there is a risk —

MR. HRABCAK: Yes.

THE COURT: — conflict, and I am sure, Mr. Chadi. You as wellhave mulled that over as well. So — and that is somethingthat in my view really should held or should be dealt with inthe presence of the accused. So that, Mr. Rice, is the historyof how we got here. You obviously have an interest in thisissue because Mr. Alcantara would be affected obviously ifmatters had to be adjourned.

40 The case management conference was adjourned to the following dayfor continuation so that the three accused could be present.

March 5, 200841 The case management conference in this matter resumed. Counsel for

Alcantara took the position that although the potential conflict of interestissue more directly affected Caines and Knapczyk, “...there is always apotential effect on my client.” The following exchange then took placebetween the Court and Crown counsel respecting any potential conflictof interest:

THE COURT: So maybe, Crown I will ask you first of all whetheror not the Crown — well, what is the Crown’s position as itrelates to any potential conflict in this matter...

MR. HRABCAK: ... [W]ith respect to Mr. Jeffrey Caines and Mr.Knapczyk they’re in a slightly different situation than Mr.Flight and Mr. John Caines. As I see a defence, any type ofdefence to this particular case, Mr. Jeff Caines and Mr.


Knapczyk would not have opposing interests, that they wouldbe like mind in any type of defence that they wish to present.So in that aspect I don’t foresee a conflict that wouldarise...The waivers tend to cover off potential or at least thesetwo accused’s knowledge that such a situation could arise orin the future that they’ve accepted that they wish to waivetheir rights in this particular situation. So I can’t stand hereand say it’s not going to happen.

THE COURT: No, I understand that.

MR. HRABCAK: But I don’t foresee it happening unless it happensin the same fashion as what happened in Mr. Flight andCaines’ and I don’t — I would expect that that’s not going tohappen.

42 The Court then asked Mr. Chadi about his position regarding the riskof a conflict arising:

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

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

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

Now again we can never predict with any great accuracy, but youhave my undertaking that every precaution in this regard will be un-dertaken so that this matter can move forward.

April 3, 200843 The evidence and the submissions of counsel on committal were con-

cluded in the preliminary inquiry before Malin P.C.J. in Koker B. TheCourt reserved its decision on committal to April 16, 2008.

April 7, 200844 The preliminary inquiry in Koker A commenced before Philp P.C.J.

on Information No. 070060l57Pl.


April 16, 200845 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 onMay 30, 2008.

46 Counsel for Alcantara advised the Court that his client intended toapply for judicial interim release under s. 523(2)(b) of the Code. Theapplication was scheduled for June 13, 2008.

June 11, 200847 The evidence and the submissions of counsel on committal were con-

cluded in the preliminary inquiry in Koker A. The Court reserved its de-cision on committal and the case was adjourned to July 14, 2008.

June 13, 200848 Alcantara was granted judicial interim release by Malin P.C.J. in rela-

tion to Koker B on a cash deposit in the amount of $25,000 and securityhaving a value of $125,000. The conditions of release included surrenderof his passport, reporting in person twice a week and a 24-hour housearrest provision with a knock-and-respond clause. Alcantara did not enterinto the recognizance until September 9, 2008, after being granted judi-cial interim release on September 5th by Philp P.C.J. in Koker A.

July 14, 200849 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 onAugust 29, 2008. Counsel for Alcantara advised the Court that his clientintended to apply for judicial interim release under s. 523(2)(b) of theCode. As mentioned above, the application was scheduled for September5, 2008.

September 5, 200850 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 ofrelease included a 24-hour house arrest provision with a knock-and-re-spond clause, a geographical mobility limitation and a requirement thathe surrender into custody at the Edmonton Remand Centre (ERC) 96hours before any trial or summary disposition.


September 9, 200851 Alcantara entered into recognizances respecting each bail order and

was released from pre-trial custody. All outstanding proceedings up tothat date in the Provincial Court were concluded and both cases pro-ceeded to arraignment in the Court of Queen’s Bench.

B. Court of Queen’s Bench Proceedings

May 30, 200852 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 theCrown on behalf of Gregory A. Rice. Ms. Alford advised the Court thatthe Crown had not filed the Indictment but she undertook to do so. Ms.Alford requested an adjournment of the arraignment “for some threeweeks” so that a trial judge might be assigned and scheduling issues re-garding pre-trial motions could be addressed.

53 The three Defence counsel took slightly different positions. CharlesB. Davison appeared as agent for counsel for Alcantara and suggestedthat arraignment be adjourned to September 12, 2008 to allow furthertime for briefing the disclosure. Paul L. Moreau, counsel for Roberts,was not opposed to that suggestion but requested that Sanderman J. askthe Chief Justice to appoint a trial judge and a pre-trial conference couldthen be scheduled in June or July. Naeem Rauf, counsel for Critch, ex-pressed a concern that his client had been in custody for “close to twoyears now.”

54 The Court adjourned the arraignment to June 27, 2008, and advisedcounsel that during the interim he would arrange for the appointment of atrial judge and requested that all counsel be prepared to schedule dates atthat time.

June 27, 200855 Alcantara returned to the Court of Queen’s Bench for arraignment in

Koker B. A trial judge had still not been assigned. Crown counsel sug-gested that a bifurcated process be adopted whereby pre-trial motionscould commence with warrantless search motions. The suggestion was tobook a week in late September, three or four days in October and then


continue in December. That proposal was summarized in the followingexchange between the Court and Mr. Rice for the Crown:

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

MR. G. RICE: That’s correct.

56 Counsel for Alcantara was opposed to a bifurcated procedure andsuggested that one day, February 2, 2009, be scheduled for all pre-trialmotions. The following exchange then took place between the Court andCrown counsel:

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

. . .

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

MR. G. RICE: Well sir, I’ll — I’ll go with your ruling. My idea wasthat would be the most expeditious way to deal with it, butif —

THE COURT: Yeah, but, well, only — only if — only if the war-rantless searches don’t go in and the — and the case col-lapses, then that’s fine, but that’s not going to happen here.You know, those types of trials where you decide one matterthat’s only going to take a week is fine, if that’s going to re-solve the entire trial. That’s not going to resolve this entiretrial, so why do some here, some here, some here? Let’s juststart it in February.


57 The pre-trial motions were set for February 2, 2009 to May 29, 2009and the case was scheduled to return before Sanderman J. on September5, 2008 for a case management conference.

August 28 and 29, 200858 The Crown filed the Indictment in Koker A. The first appearance for

arraignment came before Bielby J. on August 29, 2008. The status of thetwo cases was summarized by Gregory A. Rice for the Crown in thefollowing exchange with the Court and Kevin P. Gubbins, who appearedas agent for counsel for Alcantara:

MR. RICE: My Lady, there’s been discussion between Mr. Chadiand Mr. Rice with respect to this date. Trying to get a hold ofMr. Hrabcak with respect to setting up a proper date. There isalso another file related to this, a different file with some ofthe same accused, and there’s been issues with respect tosome pretrial motions that are going out, so they are trying tohave these suggestions, so I am simply asking it go to thenext 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 im-mediate plans to bail application, so I am a bit concerned withsetting it over.

MR. RICE: When I spoke to Mr. Hrabcak who is really in charge ofthis 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 of2009. So it is a bit of a scheduling issue. I can tell you that thepreliminary inquiry on this matter, Mr. Hrabcak’s, so KokerA, was completed just at the end of spring just before sum-mer, so Mr. Hrabcak told me that he didn’t expect that de-fence counsel would be prepared to set dates today. He didn’thave any difficulty with that and that — but to bring his cal-endar just in case.

So those were basically the comments of Mr. Hrabcak. So what I cantake from that is he doesn’t have any difficulty with this, and I thinkit probably would be prudent. It is becoming a bit of a schedulingproblem, so it probably would be prudent to put it over to the nextarraignment date.

. . .


MR. GUBBINS: The accused are involved — some of them are in-volved in Koker A and Koker B, so they can’t be in at thesame 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 thatcounsel contact the trial co-ordinator to provide their available dates for along trial so that information would be available to the Court on the re-turn date. Mr. Rice for the Crown further advised the Court that he washopeful that Mr. Hrabcak would be available on the next date.

September 5, 200860 Alcantara returned before Sanderman J. for a case management con-

ference in Koker B. The trial date of February 2, 2009 was confirmedand December 12, 2008 was set as the deadline for filing pre-trial mo-tions. 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 ex-change took place when the Court inquired whether Mr. Chadi was in aconflict of interest position:

THE COURT: Yes. Appeared before Justice Bielby on the 29th, andshe suggested you get trial dates, and I see that, is Mr. Chadiacting 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 offour weeks.

I believe there was some discussions to be taken between himself andMr. Hrabcak eventually resolving the Caines matter and should thatnot be resolved then, of course, Mr. Chadi would have to get off therecord for one of the two, I believe, if not both, but that was his in-tention, was to see if we could resolve Mr. Caines’ matters and Mr.Knapczyk would eventually — would go to trial if that was to bedone. So he is asking for a month to facilitate that with Mr. Hrabcak.

62 Counsel for Alcantara made the following submissions concerningthe potential conflict issue:

MR. C. RICE: I am not too concerned about a brief or three-weekwindow; however I do have a concern arising from something


else that my friend mentioned this morning and that’s a po-tential conflict.

THE COURT: I see a real conflict here. I see a real conflict. I don’tknow 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 pre-lim and had been discussed and had been resolved for thepurposes of prelim.

THE COURT: Okay.

MR. C. RICE: I don’t know what — quite frankly, sir, I see twoconflicts that Mr. Chadi has, and I don’t know which one myfriend is referring to. Is she referring to a conflict betweenMr. Caines and Mr. Knapczyk or is she referring to a conflictthat Mr. Chadi has because he was counsel for a major Crownwitness?

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 atarraignment, after a preliminary was conducted by Mr. Chadiin these circumstances, this case is about to go south. It willtake new counsel months to prepare this, sir. I want you to beaware 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 discussionswith Crown counsel and, “...we’re on the verge of scheduling dates.” Itwas suggested that Mr. Chadi be personally present on the next arraign-ment date to address the conflict of interest issues. The Court agreed andadjourned the arraignment to September 26, 2008.

September 15, 200864 The third prosecution in R. v. King (Koker C) proceeded to prelimi-

nary inquiry before Veldhuis P.C.J. in Calgary. The proceedings com-menced with Mr. Chadi, counsel for Hoskins, advising the Court that hewas in an “untenable position” as a result of a conflict of interest andcould not continue to act for Hoskins. The conflict issues were addressedby John D. James, counsel for King, who advised the Court that Mr.


Chadi previously was counsel for Marche and Debbie Weiss, who wereCrown witnesses, and as well Mr. Chadi was counsel for Caines, whowas an unindicted co-conspirator. The conflict issues were further sum-marized for the Court by Simon Lord, Q.C., counsel for Farhan Sattar, asfollows:

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

. . .

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

In addition to Mr. Chadi being conflicted by his representation ofCaines, and although Caines may belong in one side of this allegedconspiracy or another side, the fact is that Caines is the alleged in-tended recipient of all the drugs at issue in this proceeding. So thesecond limb of major conflict with Mr. Chadi is his representationwhich 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 be-cause one of Mr. Anderson’s thrusts - but I have no doubt it wascompletely unwarranted - but nevertheless a thrust by Anderson ininterview with Marche, was a suggestion put to Marche that the ha-bitual retainer which the men in this conspiracy had of Chadi wentbeyond retainer of counsel and extended to a retainer to launder theproceeds of the conspiracy.

And that, in other words, puts Mr. Chadi in the horrible position ofhaving to cross-examine the witness who actually has told the Crownand accomplice witness that he believes Mr. Chadi is guilty of acrime. There is no evidence whatever in support of this, but neverthe-less, in my respectful position, Mr. Chadi’s position is utterly intoler-able and the Court should move to exclude him.

65 The Court granted Mr. Chadi’s application to withdraw as counsel inthe Koker C matter. The preliminary inquiry was adjourned to September17, 2010 to give Hoskins an opportunity to consult with new counsel.


September 26, 200866 Alcantara appeared before Clackson J. for arraignment and the sched-

uling of a trial date in Koker A. Mr. Chadi appeared for Caines andKnapczyk and advised the Court that he was making an application to beremoved as counsel of record:

MR. CHADI: Thank you, My Lord. I was previous counsel — I’mcounsel of record for Mr. Caines and Mr. Knapczyk. That isnow changing this morning. I’m applying to get off the recordwith respect to both of these individuals. I conducted the pre-liminary inquiry. Mr. Hrabcak and I tried at great lengths tohave this matter resolved up to and including yesterday. Un-fortunately, the resolution fell apart. I cannot continue to act,and — and as I trust my friend is of the same position. I haveconsulted with Mr. Caines. I understand that he’s speakingwith Mr. Moreau in that respect. Mr. Moreau is familiarwith — and as a result, can come up to speed relativelyquickly. And I understand that Mr. Juneja had been consultedby Mr. Knapczyk. So those are my representations before thecourt.

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

THE COURT: ... Mr. Juneja, what kind of shape are you in beforewe 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 indetail, and there is an extensive amount of disclosure to stillgo through. Sir, I’m asking for the court’s indulgence to putthis matter over for a period of one month to be brought up tospeed and to have further communications with Mr.Knapczyk about my retainer.

68 The following exchange then took place between the Court and coun-sel for Alcantara, who was opposed to a further adjournment:

THE COURT: Mr. Rice.

. . .

MR. RICE: I have some submissions to make to the court becausethe change of counsel and withdrawal of counsel at this latedate is going to squarely put in issue my client’s rights to trialwithin a reasonable time. We are in a position today to sched-ule this matter. Obviously that cannot be done due to newcounsel coming on board...So I’m — I’m in a position where


I’m not agreeing with having it adjourned today, because weare certainly ready to proceed and set dates.

THE COURT: Okay. In a nutshell, then, you may make an applica-tion at some point in the future based on 11(b) of the Charteris what I hear you saying, and you don’t want to foreclosethat opportunity by agreeing to this adjournment. I’ve gotthat. It’s on the record.

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

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

69 The Court granted Mr. Juneja’s application and the arraignment wasfurther adjourned to October 24, 2008.

October 24, 200870 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 andsought a further adjournment as he had not been retained and had notreceived the disclosure from Mr. Chadi. Mr. Lazin and Mr. Davison thenadvised the Court as follows:

THE COURT: Okay.

MR. LAZIN: Sir, it was my understanding and expectation that wewere going to be setting pre-trial dates today. I understandthat the dates would have been suitable for Mr. Juneja. Wewere tentatively looking at setting four months of pretrial mo-tions commencing November 2, 2009, with potential trialdates starting April 5th, 2010. We’re certainly not — my cli-ent’s in custody. It’s certainly a matter where we’re not pre-pared 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 motionsand the trial. The pre-trial motions were scheduled for November 2, 2009to 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 confirma-tion of those dates.


November 21, 200872 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 motionsand trial. Mr. Juneja did not appear as a result of an oversight and thecase was further adjourned to November 28, 2008.

November 28, 200873 Mr. Juneja advised Clackson J. that he had been retained by

Knapczyk with respect to Koker A and a designation of counsel had beenfiled.

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-trialmotions and the trial as a result of police unavailability due to the WinterOlympic Games in Vancouver, B.C.

75 Mr. Lazin again advised the Court that he was not acquiescing in anyadditional delay caused by the unavailability of police witnesses due tothe Olympics. The assigned dates were adjusted by the Court to Novem-ber 2, 2009 to March 31, 2010 for pre-trial motions and April 20, 2010 toJune 30, 2010 for trial.

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

November 28, 2008 to January 29, 200977 This time period was taken up with pre-trial conferences in both

cases.

January 29, 200978 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 aresolution of all outstanding charges.

February 9, 200979 The trial involving the three remaining accused in Koker B com-

menced with pre-trial motions and continued to its conclusion on June 9,2009, when Sulyma J. reserved judgment. The trial was then adjournedfor the Court to render verdicts.


March 2, 200980 Yakimishyn proceeded separately before Hillier J. and pleaded guilty

to trafficking in cocaine pursuant to s. 5(1) of the CDSA.

March 3, 200981 Alcantara was arrested on breach of recognizance charges.

March 13, 200982 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 sevenyears and 10 months (R. v. Yakimishyn, 2009 ABQB 162, 470 D.L.R.(4th) 140 (Alta. Q.B.)).

March 23, 200983 Alcantara’s bail on Koker A was revoked by Philip P.C.J..

March 25, 200984 On March 25, 2009, Alcantara’s judicial interim release application

was denied.

May 29, 200985 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 effortswere being made to schedule a pre-trial conference. The case was ad-journed to June 19, 2009, in anticipation that the election for mode oftrial would be clarified before that date.

June 19, 200986 Koker A returned before Ross J. and was further adjourned to Sep-

tember 11, 2009, as counsel had not been able to arrange the pre-trialconference with the assigned trial judge. It was also expected that resolu-tion of the outstanding issue regarding the election for mode of trialcould wait until that date.

September 10, 200987 Alcantara’s application under ss. 515(10) and 525 of the Criminal

Code was denied.


September 11, 200988 Koker A returned before Sanderman J., at which time a pre-trial con-

ference was scheduled for October 14, 2009 before this Court. The ques-tion of whether the case would proceed as a judge and jury election wasadjourned to December 18, 2009, with the suggestion that the issue couldbe addressed before this Court. The Crown also requested that the trialdate be adjusted again and it was moved up to April 6, 2010 from April20, 2010, with the consent of the Defence.

September 14, 200989 Caines, without his counsel of record Gregory C. Lazin, appeared

before Gill J. in regard to Koker A and entered guilty pleas to two countsin the Indictment. Mr. Chadi, who already had withdrawn from the filedue to a conflict, appeared with Caines. The Crown did not object to hisappearance.

September 15, 200990 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 (Alta. Q.B.)). All three accused were convicted and the casewas adjourned to September 18, 2009 to schedule a date for the sentencehearing.

September 16, 200991 Caines appeared before Gill J. in regard to Koker A. The Crown ten-

dered exhibits. Mr. Juneja, counsel for Knapczyk, attended as agent forMr. Chadi.

September 18, 200992 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, 200994 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, 200995 Alcantara and Caines first appeared before this Court in Koker A for

the purposes of a pre-trial conference. I directed that notices of motionregarding pre-trial applications be filed by October 23, 2009, and booksof authorities be filed by October 30, 2009. Following a discussion ofvarious scheduling and other logistical matters, the case was adjournedby agreement of all counsel for the commencement of pre-trial motionson November 9, 2009, at which time it was adjourned to November 10,2009.

November 9, 200996 The proceedings in relation to Caines and Koker A resumed before

Gill J. The Court was advised that issues had arisen with respect to adocument 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 In-dictment. Crown counsel confirmed that Caines had been severed fromthe case and the trial of Alcantara and Knapczyk would continue.

99 The matter in relation to Caines was scheduled to continue before GillJ. on November 12, 2009. Caines’ counsel, Mr. Lazin, was excused fromfurther attendance before this Court.

100 Counsel for Alcantara and Knapczyk advised the Court that in theabsence of their co-accused Caines advancing an application under s. 8of the Charter, as he had been severed from the case, they were aban-doning their s. 7 Charter applications. The following exchange tookplace when counsel for Alcantara suggested that the trial date be movedup:

MR. RICE: Now, with respect to Mr. Alcantara, My Lady, it’s obvi-ous that we have a considerable period of time here that hasnow been freed up. If the court was disposed to acceleratingthe trial date, that is moving it up to an earlier date other thanthe one that has been scheduled in April and take advantageof 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 thatwe might be able to do that but why wouldn’t we do that?

MR. HRABCAK: There is reasons — this is primarily an RCMPfile. It is an RCMP file. The Olympics take place February


and Special Olympics in March and pretty much the majorityof available RCMP officers in Alberta and in BC are con-sumed through the security with respect to the Olympics as aresult there is an attempt not to schedule RCMP files duringthat time period.

Further, I have a matter at the end of March that is a file up in FortMcMurray that I am needing to deal with. So I am hesitant to actu-ally bring the matter forward.

101 After some initial resistence Crown counsel agreed to look into theavailability of police witnesses for an earlier trial date and it was agreedthat the proceedings would be adjourned to November 18, 2009 forCrown counsel to report back to the Court. Counsel for Alcantara thenadvised the Court that he had received instructions from Alcantara to of-fer a plea of guilty to Count #1 in resolution of all charges in the Indict-ment which triggered the following exchange:

MR. RICE: Count 1 in the Indictment before you is a count alleginga conspiracy between the dates of July 1st, 2005 and March31st, 2006 contrary to Section 465(l)(c) of the Criminal Code,and I can advise you that in respect of that count I have re-ceived instructions from Mr. Alcantara to offer a plea ofguilty to the court in resolution of all matters contained in thisIndictment.

MR. HRABCAK: I’m taken by surprise I must admit. I’m going toneed time to — I’m not even certain of my — what my friendis proposing to be honest.

THE COURT: I’m certain of what he is proposing. He is proposinga guilty plea to Count 1 and all the other counts be vacated bythe Crown.

MR. HRABCAK: That’s — if that is the case that’s something forhim to discuss with myself. I mean if he wants to plead guilty,put on the record and then continue on with the trial on theother counts that’s something that the Court can entertain butif my friend is saying he wishes to plead guilty to Count 1 onthe condition that the Crown withdraw the remaining countsthat’s something that he and I can discuss next week.

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

MR. HRABCAK: Thank you.


November 12, 2009102 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, 2009103 In the Koker A proceedings before him, Gill J. dismissed the Defence

application to withdraw admissions without evidence, but allowed a De-fence application with evidence.

November 18, 2009104 The proceedings in Koker A continued before this Court with Crown

counsel requesting an adjournment for another week as he needed moretime to determine whether witnesses could be available to commence thetrial on December 7, 2009. Following a discussion about scheduling is-sues and the unavailability of RCMP witnesses due to the Winter Olym-pics, the case was adjourned to November 30, 2009 due to the unavaila-bility of the Court. Counsel for Alcantara asked whether Crown counselhad a response to the offer which Alcantara had made on November 10,2009 to plead guilty to the conspiracy count on the condition that theremaining counts be withdrawn. Mr. Hrabcak replied that the Crownwould not accept that plea offer at that time, “...although I am still con-sidering it.” He advised that he would have an answer by the followingTuesday.

November 30, 2009105 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 summa-rized the witness availability issues as follows:

MR. HRABCAK: After that I cannot give any assurance at all that Iwould have witnesses in February or March given the Olym-pics. I will still attempt to do so based upon the dates thatwe’ve discussed in court, that being the first two weeks ofFebruary, and then I believe all of March is available; how-ever, I’m not available at the last week of March, so the firstthree weeks of March I would consider looking to get somewitnesses, although I cannot guarantee that. So we may havean absence of evidence in February and March and thenrecommence in April.


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

December 2, 2009107 The sentence hearing in Koker B concluded before Sulyma J. The

matter was adjourned to December 4, 2009 for the Court to render itsdecision.

December 4, 2009108 Sulyma J. sentenced all three accused in Koker B. Alcantara was sen-

tenced to a global term of 14 years imprisonment less credit for timeserved in pre-trial custody of five years and two months for a net sen-tence of eight years and 10 months. All outstanding matters in that prose-cution were then concluded. The remaining chronology of the judicialhistory deals solely with the case before this Court in Koker A.

December 10, 2009109 The trial in the present matter commenced with Alcantara filing a No-

tice of Intention to Re-Elect. He was then arraigned, formally re-electedto be tried by judge alone and entered a guilty plea to Count 1 (conspir-acy) in the Indictment. Alcantara maintained his pleas of not guilty totrafficking in cocaine and the criminal organization count. Following theadmission 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 thetrial against both accused and proceeded with an opening address and thecalling of evidence.

December 17, 2009110 The trial continued until December 17, 2009, when it was adjourned

to January 20, 2010 for further continuation.

January 13, 2010111 On January 13, 2010, Crown counsel advised the Defence about new

disclosure regarding implementation of the live monitoring requirementin certain of the wiretap authorizations (the put away issue).


January 20, 2010112 The trial resumed with Defence counsel making an application for an

adjournment as a result of the new disclosure which had been receivedfrom the Crown. Counsel for Alcantara advised the Court as follows:

MR. RICE: Last week, on January the 13th, or at least by way of aletter dated January 13th, 2010, from Mr. Hrabcak, on behalfof the Crown, we were made aware of an issue that theCrown has become aware of regarding the implementation ofthe wiretap authorizations in this case. It pertains to the policeinterpretation and practice with respect to the implementationof what we call a live monitoring requirement in the wiretapauthorizations, and we have been advised that it potentiallymay affect 71 of the evidentiary intercepted private communi-cations that form the part of the foundation of the prosecu-tion’s case. We have been provided to this point with elec-tronic disclosure of session reports prepared by the RCMP,my understanding, at the request of the Crown. And I haveonly had the opportunity of briefly reviewing the various re-ports contained in the electronic disclosure, which, certainly,in total, exceed a couple of thousand pages of material. I un-derstand, in speaking with Mr. Hrabcak, that the Crown hasrequested further material related to this issue, which they’venot yet received but anticipate receiving, so we are expectingfurther disclosure on this point.

. . .

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

113 The adjournment application triggered the following exchange be-tween the Court and Crown counsel, who conceded that the Defencewould need some time to review its position:

THE COURT: But what about pertaining to the guilty plea on thefirst 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 conse-quently, it seems to me that Mr. Rice might want to reviewhis position with respect to everything at this point.

MR. HRABCAK: Oh, and I don’t — I don’t take exception withthat. Yes, I’d expect that Mr. Rice would be starting, back


from the start to determine whether or not any of the stepsthat 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 thatthis is something that can be determined overnight, and I’mnot taking any exception that Mr. Rice needs some time todeal with that.

114 The Defence agreed to proceed with the evidence of one additionalCrown witness without prejudice to any application which might bemade arising out of the new disclosure. The trial was then adjourned toJanuary 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 adjournCaines’ matter in Koker A.

February 16, 2010116 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, 2010117 The proceedings resumed before this Court with Mr. Lazin advising

that Caines would be bringing an application to vacate his guilty pleabefore Gill J. and then would be bringing an application for joinderbefore this Court.

April 7, 2010118 Gill J. declared a mistrial in the Koker A proceedings before him and

struck Caines’ guilty pleas.

April 12, 2010119 The Crown consented to the joinder of Caines in the present proceed-

ings 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 hisguilty plea to Count 1 (conspiracy) pursuant to ss. 7, 11(d) and 24(1) ofthe Charter (Motion #2); an application for a judicial stay of proceedingsunder ss. 7, 11(b), 11(d) and 24(1) of the Charter based on delay (Motion


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

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

April 20, 2010122 The Defence proposed a schedule whereby its disclosure motions

would begin on June 1, 2010 and continue for seven to ten days. Over thesummer, they would await the disclosure and further prepare.

May 18, 2010123 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, 2010124 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) (Mo-tion #3).

June 1, 2010-June 14, 2010125 The disclosure motion proceeded on various dates from June 1, 2010

to June 14, 2010, at the conclusion of which the Court set deadlines forthe Crown to comply with the orders granted. The deadline for disclosureof the final outstanding information was set for August 19, 2010.

June 24, 2010 and June 28, 2010126 The case continued with two case management conferences, at the

conclusion of which the Court fixed a “Revised Proposed Pre-Trial Mo-tions and Trial Schedule.” The pre-trial motions were booked to com-mence on September 1, 2010 and conclude on March 31, 2011, with thetrial proceeding April 11, 2011 to June 16, 2011.

August 20, 2010127 The disclosure motion resumed, at which time Crown counsel pro-

vided an update regarding the status of the Crown’s compliance with the


order for production. The Defence indicated it would need time to reviewthe disclosure provided. The proceedings then adjourned to September 1,2010, which was the date scheduled for the commencement of the appli-cation to vacate Alcantara’s guilty plea.

September 1, 2010128 Pre-trial motions commenced.

September 24, 2010129 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 In-

dictment (R. v. Caines, 2010 ABQB 616 (Alta. Q.B.)). Also, on that date,the Court confirmed that Mr. Juneja could continue in his representationof Mr. Knapczyk for the duration of the delay motion (R. v. Caines, 2010ABQB 612 (Alta. Q.B.)).

October 8, 2010131 The Court issued a decision (R. v. Caines, 2010 ABQB 646 (Alta.

Q.B.)) pertaining to a voir dire hearing as to the relevance and admissi-bility of session history reports relating to wiretap interceptions in a sep-arate prosecution.

September-December 16, 2010132 The delay motion proceeded.

III. The Issue133 The issue is whether the delay in the prosecution and trial of the

charges against Caines, Alcantara and Knapczyk is unreasonable andcontrary to s. 11(b) of the Charter.

IV. The Law

A. Charter Provisions134 The Charter provides that:

7. Everyone has the right to life, liberty and security of the personand the right not to be deprived thereof except in accordance with theprinciples of fundamental justice.

. . .


11. Any person charged with an offence has the right

. . .

(b) to be tried within a reasonable time;

24(1) Anyone whose rights or freedoms, as guaranteed by this Char-ter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriateand just in the circumstances.

B. Section 11(b) Discussion135 In R. v. Morin, [1992] 1 S.C.R. 771 (S.C.C.) at paras. 26-31, Sopinka

J. set out the purposes of s. 11(b) of the Charter and the approach to beused in a s. 11(b) analysis:

The primary purpose of s. 11(b) is the protection of the individualrights of accused. A secondary interest of society as a whole has,however, been recognized by this Court. I will address each of theseinterests and their interaction.

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

The right to security of the person is protected in s. 11(b) by seekingto minimize the anxiety, concern and stigma of exposure to criminalproceedings. The right to liberty is protected by seeking to minimizeexposure to the restrictions on liberty which result from pre-trial in-carceration and restrictive bail conditions. The right to a fair trial isprotected by attempting to ensure that proceedings take place whileevidence is available and fresh.

The secondary societal interest is most obvious when it parallels thatof the accused. Society as a whole has an interest in seeing that theleast fortunate of its citizens who are accused of crimes are treatedhumanely and fairly. In this respect trials held promptly enjoy theconfidence 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 reasonabletime have an intrinsic value. The constitutional guarantee enures tothe benefit of society as a whole and, indeed, to the ultimate benefitof the accused...” (p. 96). In some cases, however, the accused has nointerest in an early trial and society’s interest will not parallel that ofthe accused.

There is, as well, a societal interest that is by its very nature adverseto the interests of the accused. In Conway, a majority of this Courtrecognized that the interests of the accused must be balanced by theinterests of society in law enforcement. This theme was picked up in


Askov in the reasons of Cory J. who referred to “a collective interestin ensuring that those who transgress the law are brought to trial anddealt with according to the law” (pp. 1219-20). As the seriousness ofthe offence increases so does the societal demand that the accused bebrought to trial. The role of this interest is most evident and its influ-ence most apparent when it is sought to absolve persons accused ofserious crimes simply to clean up the docket.

The general approach to a determination as to whether the right hasbeen denied is not by the application of a mathematical or adminis-trative formula but rather by a judicial determination balancing theinterests which the section is designed to protect against factorswhich either inevitably lead to delay or are otherwise the cause ofdelay. As I noted in Smith, supra, “[i]t is axiomatic that some delayis inevitable. The question is, at what point does the delay becomeunreasonable?” (p. 1131). While the Court has at times indicated oth-erwise, it is now accepted that the factors to be considered in analyz-ing 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 thisCourt 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 (S.C.C.)commented at para. 18 that applying the factors set out in Morin inevita-bly leads to a detailed examination of particular time periods and the rea-sons why certain delays occurred, but cautioned that in undertaking thistype 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 (S.C.C.) at para. 28, Sopinka J.confirmed that it is the accused who has the ultimate or legal burden ofproof on a s. 11(b) Charter application, although a secondary or eviden-tiary burden may shift to the Crown, depending on the circumstances ofthe case. For example, a long period of delay due to an adjournment re-


quested by the Crown ordinarily will call for an explanation from theCrown as to why the adjournment was needed. If no satisfactory explana-tion 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) appli-cation on the basis of the burden of proof but rather to evaluate the rea-sonableness of the overall delay having regard to the Morin factors.

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

1. Length of the delay139 The time period to be examined is from the date of the charge to the

end of trial: Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536(S.C.C.), at 548; R. v. Rahey, [1987] 1 S.C.R. 588 (S.C.C.), at 633; R. v.Kalanj, [1989] 1 S.C.R. 1594 (S.C.C.) at para. 16; Morin at para. 32.Sopinka J. clarified in Morin at para. 35 that “charge” means “the date onwhich an information is sworn or an indictment is preferred.” He alsostated (at para. 35) that:

Pre-charge delay may in certain circumstances have an influence onthe overall determination as to whether post-charge delay is unrea-sonable but of itself it is not counted in determining the length of thedelay.

2. Waiver of time periods140 The operative period of delay may be shortened by subtracting peri-

ods of delay that have been waived. In Morin at para. 38, Sopinka J. setout the test for waiver as follows:

This Court has clearly stated that in order for an accused to waive hisor her rights under s. 11(b), such waiver must be clear and unequivo-cal, with full knowledge of the rights the procedure was enacted toprotect 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 forwaiver set out above. As Cory J. described it in Askov, supra, at p.1228:

... there must be something in the conduct of the accusedthat is sufficient to give rise to an inference that the ac-cused has understood that he or she had a s. 11(b) guaran-


tee, understood its nature and has waived the right pro-vided by that guarantee.

Waiver requires advertence to the act of release rather than mere in-advertence. If the mind of the accused or his or her counsel is notturned to the issue of waiver and is not aware of what his or herconduct signifies, then this conduct does not constitute waiver. Suchconduct may be taken into account under the factor “actions of theaccused” but it is not waiver. As I stated in Smith, supra, which wasadopted in Askov, supra, consent to a trial date can give rise to aninference of waiver. This will not be so if consent to a date amountsto mere acquiescence in the inevitable.

141 In R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 (S.C.C.), Cromwell J.stated at para. 23: “[s]cheduling requires reasonable availability and rea-sonable cooperation; it does not, for s. 11(b) purposes, require defencecounsel 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 (Alta. C.A.),aff’d [R. v. Schiewe] [1993] 1 S.C.R. 1134 (S.C.C.), a case decided afterAskov but without the benefit of the reasons in Morin, the Alberta Courtof Appeal held that the approximately eleven-month delay in that casefrom arraignment to the first scheduled six week trial date was not anunjustifiable systemic delay, but in any event the time period had beenwaived 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 trialdates with the defence counsel for each defendant and agreed on adate before representations were made to the court. (It cannot be ar-gued that defence counsel were unaware of their clients’ rights unders. 11(b). On the first occasion the preliminary inquiry was adjourned,the matter of s. 11(b) was expressly addressed by two of the threecounsel. The third was present during the exchange.) At arraignment,Crown counsel advised the court that “I have discussed with counselprospective dates for hearing of this matter and it appears that themost convenient time that can be offered is September of 1990.”None of the defence counsel objected to this representation. I takethis to mean, given the reference to “convenient” that the dates wereindeed acceptable to all counsel. This being so, I regard the agree-ment by defence counsel to the September trial date as tantamount towaiver, falling squarely within the comments made by Sopinka J. inSmith, supra, at 1136:

Agreement by an accused to a future date will in mostcircumstances give rise to an inference that the accused


waives his right to subsequently allege that an unreasona-ble delay has occurred. While silence cannot constitutewaiver, agreeing to a future date for a trial or a prelimi-nary inquiry would generally be characterized as morethan silence.

[Emphasis in the original.]

3. Reasons for the delay

(a) Inherent time requirements of the case143 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, foran accused to retain counsel and for applications for bail to be heard andother pre-trial procedures to be completed. Counsel must have time toprepare for trial and the trial itself takes time. All of these are inherenttime requirements of the case.

144 As explained by Sulyma J. in R. v. Chan, 2003 ABQB 759, 342 A.R.201 (Alta. Q.B.) at para. 14, relying on Morin:

Inherent time requirements will vary depending on the complexity ofthe case. Counsel for the prosecution and defence counsel are notexpected to devote themselves exclusively to one case. Intake re-quirements, including retention of counsel, bail hearings, police andadministrative paperwork, and disclosure and transcription of inter-cepted communications also result in inherent delays. Sopinka J. inMorin at para. 42 noted that as the number and complexity of theseactivities increase, so does the amount of delay which is reasonable.

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

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

Clearly a longer time must be allowed for cases that must proceedthrough a “two-stage” trial process than for cases which do not re-quire a preliminary hearing. Equally, a two-stage process will in-volve additional inherent delays such as further pre-trial meetingsand added court dates. An additional period for inherent time require-ments must be allowed for this second stage. This period will be


shorter than in the case of the one-stage trial process because manyof the intake procedures will not have to be duplicated.

147 In addition, the conduct of the trial itself, including argument, adjudi-cation and sentencing is considered part of the inherent time requirement(Morin at para. 43).

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

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

150 In R. v. Bains, 2010 BCCA 178, 254 C.C.C. (3d) 170 (B.C. C.A.), theappellant was charged with conspiracy to traffic in cocaine. On a s. 11(b)application, the trial judge held that the inherent time required was 27months, 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 (Ont. S.C.J.), a drug con-spiracy and criminal organization case, the trial judge noted that the 102/3 months taken by the Crown to provide disclosure was justified andpart of the inherent time requirements of the case.

152 Disclosure took approximately 9 1/3 months in R. v. Adam, 2006BCSC 350 (B.C. S.C.), a case involving multiple accused charged withtwo counts of conspiracy. Romilly J. commented at para. 107 that: “Notsurprisingly, prosecutions involving wiretaps, as in the case at bar, pre-sent complex and at times formidable disclosure endeavours.” The intakeperiod in the Provincial Court was held to be 11 months for all but two ofthe accused. Romilly J. concluded at para. 150 that a period of twelvemonths for the combined intake requirements at the Provincial and Su-preme Court levels was justified and reasonable and should be consid-ered as part of the inherent time requirements of the case. The 11 weeksof preliminary inquiry were held to be part of the inherent time period, aswere 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 thejury trial in this matter.

153 In R. v. Blake, 2010 MBQB 115, 253 Man. R. (2d) 121 (Man. Q.B.),the applicant was charged with conspiracy to import ephedrine. Over85,000 private communications were intercepted in the course of thecross-border investigation. Martin J. concluded that the 14 months fromarrest to substantial completion of disclosure was part of the inherenttime requirements of the case.

154 Finally, in R. v. Ebrekdjian, 2010 ONSC 3097 (Ont. S.C.J.), the ap-plicants were charged with two counts of conspiracy to traffic in cocaineand two criminal organizations counts. Power J. concluded that the inher-ent time required for the case was somewhere between about nine and 12months.

(b) Actions of the Applicants155 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 arevoluntarily taken and have caused delay.

156 These actions may include a change of counsel, challenging admissi-bility of seized evidence, challenging the validity of a wiretap authoriza-tion and adjournments not amounting to waiver (Morin at paras. 44-45).

(c) Actions of the Crown157 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 trialmay be investigated. Such actions include adjournments requested by theCrown, failure or delay in disclosure, change of venue motions, etc.” Ifno satisfactory explanation as to the need for the adjournment or otherdelay is given, the Court is entitled to infer it was unjustified (R. v. Smith,[1989] 2 S.C.R. 1120 (S.C.C.), at 1132-33).

(d) Limits on institutional resources158 The Supreme Court of Canada suggested in R. v. Askov, [1990] 2

S.C.R. 1199 (S.C.C.) that a six to eight month period of institutional de-lay between committal and trial might be at the outside limit of what isreasonable. However, in Morin, the court emphasized (at para. 48) thatthis was simply an administrative guideline and not a limitation period,and that any such guideline would require adjustment by trial courts totake 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 mostdifficult to reconcile with the dictates of s. 11(b) of the Charter. Itwas the major source of the delay in Askov. As I have stated, this isthe period that starts to run when the parties are ready for trial but thesystem cannot accommodate them.

160 Sopinka J. suggested the following as a guideline for acceptable insti-tutional delay (Morin at para. 55):

In Askov, Cory J., after reviewing comparative statistics suggestedthat a period in the range of 6 to 8 months between committal andtrial would not be unreasonable. Based on the foregoing, it is appro-priate for this Court to suggest a period of institutional delay of be-tween 8 to 10 months as a guide to Provincial Courts. With respect toinstitutional delay after committal for trial, I would not depart fromthe range of 6 to 8 months that was suggested in Askovv. In such acase this institutional delay would be in addition to the delay prior tocommittal. This reflects the fact that after committal the system mustcope with a different court with its special resource problems. It istherefore essential to take into account the inevitability of this addi-tional institutional delay.

161 He also stated at para. 53: The application of a guideline will also be influenced by the presenceor absence of prejudice. If an accused is in custody or, while not incustody, subject to restrictive bail terms or conditions or otherwiseexperiences substantial prejudice, the period of acceptable institu-tional delay may be shortened to reflect the court’s concern. On theother hand, in a case in which there is no prejudice or prejudice isslight, the guideline may be applied to reflect this fact.

(e) Other reasons for delay162 Sopinka J. in Morin at para. 59 grouped under this category reasons

for delay not falling within the other factors, such as actions of thejudges.

4. Prejudice to the Accused163 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-Dube J. for the majority in R. v. Conway, [1989] 1S.C.R. 1659 (S.C.C.) at para. 19:

... the main purpose for the right to be tried within a reasonable timeunder s. 11(b) of the Charter, namely, to minimize the adverse effecton the person charged resulting from the pending disposition of anunresolved criminal charge. The focus of the protection is “the im-pairment or prejudice arising from the delay in processing or dispos-ing of the charges against an accused and not the impairment orprejudice arising from the fact that he has been charged” (Rahey,supra, at p. 624, per Wilson J.). The right recognizes that, with thepassage of time, subjection to a criminal trial gives rise to restrictionson liberty, inconveniences and pressures detrimental to the mentaland physical health of the individual.

164 Sopinka J. in Morin at para. 61 confirmed that prejudice may be in-ferred from prolonged delay and such an inference is more likely to bedrawn the longer the delay.

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

[T]he accused may rely on evidence tending to show prejudice to hisor her liberty interest as a result of pre-trial incarceration or restric-tive bail conditions. Prejudice to the accused’s security interest canbe shown by evidence of the ongoing stress or damage to reputationas a result of overlong exposure to the “vexations and vicissitudes ofa pending criminal accusation,” to use the words adopted by Lamer J.in Mills, supra, at p. 538. The fact that the accused sought an earlytrial date will also be relevant. Evidence may also be adduced toshow that delay has prejudiced the accused’s ability to make full an-swer and defence.

166 In Godin at paras. 30-31 and 38, Cromwell J. stressed that proof ofactual prejudice to the right to make full answer and defence is not re-quired as this is just one of three varieties of prejudice, all of which mustbe considered together with the length of the delay and any explanationsfor that delay. The other two varieties are prejudice to an accused’s lib-erty interest in terms of pre-trial custody or bail conditions and securityof the person, “in the sense of being free from the stress and cloud ofsuspicion that accompanies a criminal charge.”

167 While prejudice to the accused may be inferred, an assertion or infer-ence of prejudice may be rebutted by the Crown, which may establish byevidence that the delay benefited rather than prejudiced the accused. As


noted by Sopinka J. in Morin at para. 64, conduct of the accused whichfalls short of waiver may be relied on to negative prejudice.

5. Balancing168 In Morin at para. 32, Sopinka J. explained that:

The judicial process referred to as “balancing” requires an examina-tion of the length of the delay and its evaluation in light of the otherfactors... It must then be determined whether this period is unreason-able having regard to the interests s. 11(b) seeks to protect, the expla-nation for the delay and the prejudice to the accused.

V. Analysis

A. Length of the Delay169 Alcantara, Knapczyk and Caines all were charged on November 24,

2006. The trial presently is scheduled to recommence on April 11, 2011and to conclude on June 16, 2011. Accordingly, the operative time periodis about four years and 6.5 months.

170 The Applicants argue that this period of delay warrants judicial in-quiry under s. 24(1) of the Charter. The Crown agrees, as do I, that thetime period between the date when the Applicants were charged and theprojected end of trial is sufficiently long so as to raise the issue ofreasonableness.

B. Waiver171 The Crown did not allege that the Applicants had waived any of the

relevant time period in this case.

C. Reasons for the Delay172 Alcantara argues that the over-arching reasons for delay are the prior-

ity given to Koker B and the late disclosure of the put away issue. Heargues that the delay caused by the Crown in its priorizing Koker B was18 months: (a) the delay between the end of the inherent time period andthe commencement of the Preliminary in Koker A (6 months) and (b) theconduct of the trial (12 months). He buttresses his argument with thecontention that another alternative open to the Crown would have been tocombine the prosecutions of Koker A and B. The delay caused by laterdisclosure which caused the adjournment of the trial was eight months,for a total period of delay attributable to the Crown of 26 months withoutfactoring in prospective delay. Alcantara submits on behalf of all the Ac-


cused 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 de-lay of one and one half to two and one half months because of the poten-tial conflict of Mr. Chadi representing two Crown witnesses and multiplealleged co-conspirators.

174 Caines takes the position that the delay in this case has been occa-sioned by factors that are not attributable to the Defence. He suggeststhat there are four main causes of Crown delay, including: (1) the deci-sion of the Crown to proceed with the Koker B trial first; (2) the Crown’sfailure to bring an early application to disqualify Mr. Chadi; (3) late dis-closure of the use of the put-away feature; and (4) Crown delay in com-plying with further disclosure requests by the Defence arising from theput-away issue, which resulted in the disclosure motion and order forproduction granted by the Court.

175 Caines attributes a delay of 16 1/2 months to the Crown as a result ofthe priority it gave to the Koker B prosecution, consisting of: (a) the de-lay between the end of the inherent period and commencement of thepreliminary inquiry (3 months); (b) the time taken by the conduct of theKoker B preliminary inquiry (1 1/2 months); and (3) the conduct of theKoker B trial (12 months). He argues that the time attributable to theCrown for not bringing a timely application to remove Mr. Chadi is twomonths and submits that the Crown delay from late disclosure is eightmonths, amounting to a total Crown delay of 26 1/2 months.

176 Knapczyk generally adopts the arguments advanced by Alcantara. Hesays the delay attributable to the Crown includes the delay resulting fromthe priority which it gave to Koker B, the late disclosure of use of the putaway feature and the conflict involving Mr. Chadi.

177 The Crown takes the position that the inherent time requirements ofthe case in relation to Alcantara include the following periods:

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 Al-cantara or is reasonable institutional delay.


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

February 25, 2008 to April 7, 2008 (Alcantara unavailable due toKoker B preliminary inquiry)-41 days

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

180 The Crown submits that the following periods of delay should be at-tributed to all three Applicants:

June 9, 2009 to November 2, 2009 (Alcantara unavailable due toconflict 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 Sep-tember 10, 2010 (227 days) can be attributed to it.

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

(a) Arguments of the parties182 The Applicants concede that this case falls into the complex category

due to the number of accused and charges. They acknowledge that thetime required for the Crown to make disclosure and for Defence counselto brief the material would be inherently longer than in less complexcases. Also, they agree that other intake requirements such as retainingcounsel and completion of show cause hearings might take longer incases of multiple accused, although that was not the situation here.

183 Alcantara submits that, considering the complexity of the case and thevolume of disclosure, the initial inherent time requirements for the pre-sent case was 10 months from November 26, 2006 to September 28,2007. During this period, he retained counsel, a show cause hearing wasconducted in the Provincial Court and bail review applications subse-quently were heard in the Court of Queen’s Bench. As well, the majorityof disclosure was made during this ten month period.

184 Alcantara contends that he moved expeditiously with the setting ofdates for the preliminary inquiries. On May 4, 2007, the preliminary in-quiry 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 (Alta. Q.B.) at para. 464, (2003), 342A.R. 201 (Alta. Q.B.), represents the outer limits of the inherent timerequirements for this case as it also embraced the period of pre-trial mo-tions in Chan. He contends, however, that in contrast to the situation inChan, the method of delivering disclosure was more efficient in the pre-sent proceedings (the hard drive having been delivered to the Defence onJune 1, 2007 and August 27, 2007), there are fewer accused and counselinvolved, and counsel for the Defence were prepared to set dates earlyand they worked co-operatively. Caines submits that Blake was a farmore complex case and the inherent time there was found to be 14months. Based on Chan, Blake, Bains, Adam and Ebrekdjian, Cainesagrees with Alcantara’s submission that the inherent time for disclosureand to prosecute a case such as the present one is ten months.

186 The Crown asserts that the almost one year period from November26, 2006 to November 13, 2007, when Mr. Rice went on the record ascounsel for Alcantara in Koker A, should be included in the inherenttime requirements of the case and treated as neutral delay. During thattime frame, the Crown organized and provided disclosure, judicial in-terim release applications were addressed, preliminary hearing dateswere reserved, and Alcantara retained new counsel (his original counselhaving been Mr. Moustarah).

187 The Crown acknowledges that this is a lengthy intake period, butnotes that this prosecution is complex and involves conspiracy and or-ganized crime charges, a large amount of evidence, a significant numberof witnesses and complicated pre-trial motions.

(b) Decision on Stage 1188 In my view, the initial intake period ran from November 24, 2006, the

date when the Applicants were charged, through to the end of October2007. During that period, Caines and Knapczyk retained counsel, Al-cantara retained his initial counsel, a show cause hearing was held anddates were obtained for the preliminary inquiry. The hard drive contain-ing 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 consid-ered part of the inherent time requirements of the case. It is apparentfrom the Crown’s remarks before Caffaro P.C.J. on May 1, 2007 that itwas 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 heldimmediately afterwards. As the same disclosure applied for both cases, Iinfer from the Crown’s remarks that it believed the Defence could reviewthe disclosure and both the Crown and the Defence could prepare for atleast one of the preliminary inquiries by late September 2007. That mighthave been the case if full disclosure had been made by early May. How-ever, given that the hard drive with much of the disclosure was not deliv-ered to counsel for Caines and Knapczyk until June 1, 2007, the Crownmay have been somewhat optimistic in its estimate. The Defence doesnot dispute that the initial intake period was ten months. I am of theview, however, that it extended to the end of October 2007, allowing fora reasonable time for Defence review of the disclosure.

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

(a) Events190 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 Novem-ber 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 untilNovember 13, 2007, although obviously he had been retained at an ear-lier date as he received disclosure from the Crown on August 27, 2007and became counsel of record for Alcantara in Koker B on September27, 2007.

(b) Arguments of the parties192 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 thestart of the Koker A preliminary inquiry on April 7, 2008 was theCrown’s decision to proceed with the Koker B prosecution first.

193 The Applicants cite Askov, R. v. Pusic (1996), 30 O.R. (3d) 692 (Ont.Gen. Div.) at para. 56 and R. v. Lee, 2010 ONCJ 163 (Ont. C.J.) at para.24 as establishing that where the prosecution gives preference to anothercase in the system, the consequences of that prioritization may be as-sessed against the Crown.

194 Alcantara recognizes that as he was an accused in both cases, theycould not proceed at the same time. However, he submits that the time


between February 25, 2008 and April 6, 2008 was a period when theKoker A matter lay dormant.

195 Alcantara relies on R. v. Batte (2000), 145 C.C.C. (3d) 498 (Ont.C.A.) at paras. 74-77. The appellant in that case had been charged underan indictment with offences involving two complainants. He was suc-cessful in having the charges relating to the different complainants sev-ered. The Court of Appeal concluded that the Crown’s initial decision tojoin the two sets of charges was not unreasonable, nor was its subsequentdecision to proceed to trial first on the more serious set of charges. How-ever, it also held that the Crown’s later failure to take steps to give thesecond case some priority over others in the system could be consideredin the balancing exercise.

196 Further, Alcantara argues that the Crown could have combined KokerA and B in one prosecution as he faced charges in both, and BeauYakimyshyn, one of the accused in Koker B, is an unindicted co-conspir-ator in Koker A. Alcantara submits that if the Crown had exercised itsdiscretion in that manner, there would have been seven accused, so themanageability criteria in R. v. Pangman, 2000 MBQB 71, 149 Man. R.(2d) 68 (Man. Q.B.), would still have been met.

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

198 The Applicants also argue that there is nothing in the record to indi-cate why commencement of the preliminary inquiry in this case wasdelayed for 11 months from May 4, 2007, when they pleaded not guiltyand elected trial by judge alone, to April 7, 2008, aside from Crown pri-orities and limits on institutional resources. They suggest it can be in-ferred that part of the delay was to find a three month block of timeduring which to hold the preliminary inquiries back to back, which wasthe Crown’s objective.

199 Alcantara and Knapczyk take the position that the approximately sixmonths from November 29, 2007 to the start of the preliminary inquiryin this matter is attributable to the Crown and limits on institutionalresources.


200 Caines submits that the Crown arbitrarily chose to proceed with theprosecution in Koker B first and that from May 1, 2007, when he was ina position to set a preliminary inquiry date, until April 7, 2008, he was atthe mercy of the Koker B file. He too points out that Koker B was dor-mant from February 25, 2008 to April 4, 2008. He claims that a period ofabout three months from the end of the inherent time period is attributa-ble to the Crown’s priorities and limits on institutional resources.

201 The Crown says that even if the Court agrees with the Applicants thatthe initial inherent period ended on September 27, 2007, it was preparedto proceed with the preliminary inquiry as at that date. It says this can beinferred by its request to the Provincial Court in early May 2007 fordates in September and October 2007 in regard to the Koker B prelimi-nary inquiry, with the Koker A preliminary inquiry to follow immedi-ately afterwards.

202 The Crown points out that Mr. Rice went on the record for Alcantarain Koker B on September 27, 2007, suggesting Alcantara would havecounsel in Koker A shortly. It says the delay between September 27,2007 and November 13, 2007 was caused by Alcantara and should beconsidered, as against Knapczyk and Caines, as a neutral period of delaydue to “other reasons.” The Crown argues it cannot be held responsiblefor that delay. It was Alcantara’s responsibility to retain counsel. There isno suggestion the Crown delayed or interfered with his attempt to retainnew counsel.

203 The Crown takes the position that the time period between November13, 2007, which it contends was the end of the initial inherent time pe-riod, to February 25, 2008, the start of the Koker B preliminary inquiry,should be attributed to actions of Alcantara, reasonable limitations of in-stitutional resources or a combination of both.

204 The Crown submits it can be inferred that Mr. Rice would have re-quired a portion of the time between November 13, 2007 and February25, 2008 to prepare for the preliminary inquiry. If that is the case, thattime is properly attributable to Alcantara’s late retention of counsel asagainst him. Otherwise, the time is attributable to limits on institutionalresources and, as it is under the eight to ten month guideline found to bean acceptable period of delay at the provincial court level, this timeshould be classified as neutral delay.

205 The Crown again submits with respect to Knapczyk and Caines thatthe time period from November 13, 2007 to February 25, 2008 was dueto 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 guide-line for the Provincial Court system set out in Morin.

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

207 The Crown also argues that the time period from February 25, 2008to April 7, 2008, the start of the Koker A preliminary inquiry, should beattributed as against Alcantara to his own actions and should weighagainst him. It states that neither Alcantara nor his counsel were availa-ble to have the Koker A preliminary inquiry scheduled during this timeperiod as they were involved in the Koker B preliminary inquiry.

208 The Crown maintains that any delay caused by unavailability of anaccused involved in multiple prosecutions should be counted against theaccused rather than the Crown, in the same way that it would be if theaccused failed to retain counsel in sufficient time to proceed with ascheduled trial date. The Crown concedes that if it is established the de-lay was caused by Crown negligence in scheduling the separate prosecu-tions, a portion of the time may be attributable to it.

209 The Crown submits that it was available to proceed with both prelimi-nary inquiries simultaneously. It had assigned separate prosecutors to thetwo prosecutions, which would have allowed both preliminary inquiriesto proceed at the same time. It says its scheduling of the two preliminaryinquiries consecutive to each other was nothing more than its acquies-cence to the inevitable.

210 The Crown takes the position that its decision to proceed with KokerB first cannot be attributed to any improper purpose or Crown negli-gence. It points out that Alcantara consented to the order of proceedingwith the prosecutions. It argues that there was little to distinguish KokerA from Koker B: both involve serious charges; both concern a similarnumber of accused persons and unindicted co-conspirators; both in-volved a detained accused; and that nothing stands out to militate infavor of one proceeding first. To accede to the notion that the Crown


must bear responsibility for delay occasioned by its exercise of discretionin such circumstances would mean that one or more prosecutions in amulti-pronged investigation would always be susceptible to dismissal fordelay because of the sequencing chosen by the Crown. The Crown sug-gests this result is not logically tenable.

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

(c) Evidence of Sherry Stasiuk212 Ms. Stasiuk, currently a business analyst for Court Management with

Alberta Justice, testified on this application. She has been with CourtServices since 1980 and was a trial scheduler for ten years. As part of herduties, she was responsible for setting dates for matters to proceed in theProvincial 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 Provin-cial Court were set based on police availability, court time and counselavailability. A matter requiring one day of court time would receive anearlier court date than one requiring 15 days of court time.

213 Ms. Stasiuk said that she gave Mr. Gregory Rice the earliest consecu-tive back-to-back dates that she had available. She recalled that he wasnot happy that the dates were so late. She could not remember if Defencecounsel were present at the time, but she presumed they were since sheindicated their names on the scheduling notice and scheduled a pre-trialconference, which would have required that she know the availability ofDefence and Crown counsel.

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


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

216 Ms. Stasiuk said that in her experience in scheduling inquiries andtrials, she could not recall ever scheduling a long inquiry or trial in suchbroken segments. She testified that preliminary inquiries always run onconsecutive sitting days. She has scheduled shorter trials and split thetrial dates up, but not for something requiring the amount of time neces-sary for the Koker A or Koker B matters. She could not recall havingoffered counsel split times and said she probably did not do so. As aresult, she would not have been aware of whether counsel was availableon the December and January dates she listed above.

(d) Decision on Stage 2217 In my view, the Crown acted reasonably in separating the Koker A

and Koker B prosecutions rather than charging all of the accused in thetwo matters on one indictment. Seven accused would have been at thevery upper end of what the court in Pangman considered might be man-ageable. The Crown was entitled to exercise its discretion in that regard.

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

219 It was reasonable for the Crown to want to schedule the preliminaryinquiries in both matters back to back in order to maximize efficiency. Inany 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 Bmatter had not been scheduled first, there was no 30 day period availablefor the Koker A preliminary inquiry before February 25, 2008. It alsomade sense to run preliminary inquiries involving charges of this com-plexity 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 andthat such period was reasonable considering the preliminary inquiry wasanticipated to take 30 days.

221 Alcantara retained new counsel on or before August 27, 2007 and theCrown argues that the time necessary for Clayton Rice to review disclo-sure and prepare for the preliminary inquiry in Koker A should becounted against Alcantara.

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

I reject Mr. Bloos’ argument that where the “dominant cause” of de-lay is a consequence of Crown action or inaction, other activity oc-curring within those Crown-action delay periods is irrelevant for pur-poses of the Morin delay calculation. I do not accept that Crown-action delay necessarily absorbs inherent or Defence delay. In myview, Morin mandates that all reasons for delay be examined andweighed in determining whether the delay involved has beenunreasonable.

However, I do acknowledge that a number of cases use language thatsuggests concurrency and dominant cause principles, including An-tinello, Sander, Court, Siemens, and Tapp. While the terms “concur-rent cause” and “dominant cause” are not employed, the courts dorefer to a “root cause” or to a particular cause overshadowing an-other. Glithero J. in Court found that non-disclosure in that case wasso extensive he was unable to perform the traditional Morin timeanalysis. No such difficulty arises in the present case. In undertakingthe Morin analysis, I will have consideration to concurrent causes ofdelay and the weight to be assigned to each cause in examining par-ticular periods of time and the whole of the delay.

223 In my view, the institutional delay was the more significant cause ofdelay in this period. The evidence is that, even if Alcantara had not re-tained new counsel and even if Koker A had proceeded first, the prelimi-nary inquiry in this matter could not have commenced prior to February25, 2008.


224 As Alcantara was an accused in both matters, he cannot argue that theCrown was responsible for the period of delay between the start of theKoker B preliminary inquiry and the start of the Koker A preliminary. Inmy 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 bothmatters, 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 conferenceswere held during that time.

225 Caines and Knapczyk submit that, as against them, the delay fromFebruary 25, 2008 to April 6, 2008 should be attributable to the Crownas 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 (B.C. C.A.),most of the delay complained of flowed from the Crown’s decision toprosecute two accused and others on a federal indictment when those twoaccused were facing a concurrent provincial indictment. The court com-mented at para. 41 that: “[i[n the absence of an allegation of abuse ofprocess, the Crown’s charging decision cannot be challenged,” but notedthat this rule does not preclude the court on a s. 11(b) application frombringing into the balance the Crown’s conduct of the prosecution so longas the focus remains on delay and the causes of that delay. It reiterated atpara. 54 that any delay flowing directly out of a charging decision is notattributable to the Crown, and, therefore, such delay takes on a lowerweight in the balancing under s. 11(b). The court was of the view that thecharging decision establishes the inherent time requirements for the casegiven that the number and type of charges, number of accused, and na-ture of the offences dictate complexity, time required for preparation, andintake requirements.

227 It was within the Crown’s discretion to keep Koker A and Koker B asseparate prosecutions and to include the charges against Alcantara in thepresent Indictment. As Alcantara also was one of the accused charged inKoker B, the Crown had to choose one of the matters to proceed first asit could not run them simultaneously. There has been no suggestion thatit acted improperly in choosing to schedule the Koker B preliminary in-quiry before that of Koker A. While it is possible that the preliminaryinquiry in one of the matters could have been scheduled for the morningsand the preliminary inquiry in the other for the afternoons, there is noevidence that such scheduling would have resulted in the Koker A pre-liminary inquiry concluding before it actually did.


228 I agree with the Crown that, as against Caines and Knapczyk, the pe-riod 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)

(a) Events229 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 Caines230 Caines suggests that if Koker B had not existed (and the Crown had

brought the appropriate motion with respect to Mr. Chadi at the earliestdate possible), Koker A would have been at the committal stage whenthe committal in Koker B occurred and he would have been in a positionto set dates for trial or pre-trial motions as early as May 30, 2008, whichwas the next arraignment date in the Court of Queen’s Bench after theKoker B committal. Therefore, he contends the entire delay from May30, 2008 to August 29, 2008 is solely attributable to the Crown.

(c) Decision on Stage 3231 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 Accusedunder one Indictment. Caines and the other Accused did not apply forseverance (during this time period). Any delay occasioned by Koker Bproceeding first at the preliminary inquiry stage already has been ac-counted for as “other reasons for delay”. In my view, analysis of the re-mainder of the timeline should be undertaken on the basis of what, infact, occurred rather than what might have occurred if Koker A had pro-ceeded first.

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


Stage 4: July 15, 2008 (day after committal to stand trial) to September5, 2008 (adjournment request)

(a) Events233 The Indictment in Koker A was filed on August 22, 2008.234 On August 29, 2008, the Crown and Mr. Gubbins, as agent for coun-

sel for Alcantara, asked for an adjournment of the proceedings until Sep-tember 5, 2008.

(b) Arguments of the parties235 Alcantara suggests that the time that elapsed pending assignment of a

trial judge in this case falls under the category of institutional delay, butconcedes the delay was marginal.

236 The Crown submits that the time period from July 14, 2008, when theApplicants were committed to stand trial, until August 29, 2008, the firstdate for arraignment, should be attributed to inherent time requirementsof the case. During this time period, the prosecution was moved from theProvincial Court system to the Court of Queen’s Bench for trial. TheCrown suggests this was done in an expeditious manner and was reason-ably required to advance the prosecution to the trial stage.

(c) Decision on Stage 4237 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 theCrown preparing and filing the Indictment.

238 The delay from August 23, 2008 to the next arraignment date of Au-gust 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 hadbeen discussing possible trial dates, taking into consideration the pre-trialmotions in Koker B set for February 2 to May 29, 2009. Mr. Hrabcakwas not in attendance on August 29th, but Mr. G. Rice advised that Mr.Hrabcak apparently had been under the impression that Defence counselwould not be in a position to schedule the trial on that date. Mr. G. Riceand Mr. Gubbins both asked that the matter go over to the next arraign-ment date, although Mr. G. Rice, who appeared for Mr. Hrabcak, didhave Mr. Hrabcak’s calendar and presumably could have agreed to trialdates if Defence counsel had been prepared to set them.


240 The Crown and the agent for counsel for Alcantara both asked for theadjournment. The comments of counsel for Alcantara on September 5,2008 suggest that even by then Alcantara and the Crown were not in aposition to agree to trial dates. The difficulty in scheduling may havearisen as a result of Alcantara’s involvement in both Koker A and KokerB prosecutions, but given the comments made by Ms. Karout as agent forMr. Chadi on September 5, 2008, the adjournment also may have beensought because the Crown and Mr. Chadi were attempting to resolve thematter as against Caines before Mr. Chadi decided whether to withdrawas counsel due to his conflict of interest.

241 This short time period may simply be accounted for by the exigenciesof scheduling among multiple counsel at the tail end of the summerbreak. I conclude that this time period, if not actually waived by the De-fence, should be considered as “other reasons for delay.”

Stage 5: September 6, 2008 (day after adjournment request) to October24, 2008 (setting of trial dates)

(a) Events242 As noted above, an agent for Mr. Chadi appeared on the September 5,

2008 arraignment date and advised the Court that Mr. Chadi was request-ing a four week adjournment. The Court adjourned the matter to the nextarraignment date, September 26, 2008.

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

244 It was not until October 24, 2008 that the tentative date of November2, 2009 was selected for commencement of the trial. This was confirmedon November 28, 2008, when Mr. Juneja advised the Court that he hadbeen retained by Knapczyk.

(b) Facts in the present case relevant to the conflict issue245 Caines was charged in Information No. 061444279P1, sworn on No-

vember 24, 2006. He was arrested on December 5, 2006, after turninghimself in to the police. Information No. 070060157P1 was sworn onJanuary 8, 2007 as a replacement for Information No. 061444279P1.Caines was jointly charged with Alcantara and Knapczyk in this new In-formation with conspiracy to traffic in cocaine and substantive traffick-


ing. Caines also was charged in a separate count with a criminal organi-zation offence (charges currently before this Court).

246 Knapczyk retained Mr. Chadi as counsel starting December 4, 2006and Caines retained Mr. Chadi as counsel starting December 5, 2006. ByFebruary 26, 2007, Mr. Chadi was counsel of record for both Caines andKnapczyk. The Crown did not object to Mr. Chadi representing either,although Mr. Chadi previously had represented Marche, one of theunindicted coconspirators and a witness the Crown intended to call withrespect 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 in-clude Aaron McDonald (“McDonald”), Jody Smith, Michael Marche(“Marche”), Cal Gregoire (“Gregoire”), Jeremy Cardinal (“Cardinal”),Charles Weston Flight (“Flight”), John Norman Caines, Ricco King, Me-lissa 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 availa-ble to the Defence at least by August 27, 2007 through disclosure of theReport to Crown Counsel Narrative in Koker A:

Count # 1: Conspiracy to traffic cocaine between the dates of: 22August 2005-14 February 2006

Count # 2: Trafficking (cocaine) between the dates of: 22 August2005-14 February 2006

Count # 3: Aiding the commission of an offence for a criminal or-ganization between the dates of 22 August 2005-14 February2006

Count # 4: Instructing the commission of an offence for a criminalorganization between the dates of 22 August 2005-14 Febru-ary 2006

Count # 5: Possession of proceeds of crime between the dates of: 22August 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 December2005)

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 presentIndictment 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 execu-tive summary of the Report to Crown Counsel, including a documentdescribed 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 investigativeteam made a number of substantive seizures in relation to Caines andhis network of traffickers. The seizures are as follows:

(a) On September 15, 2005, Fort McMurray Drug Section inves-tigators executed a warrant at Aaron Patrick McDonald (“Mc-Donald”) and Letisha Dawn Peters’ (“Peters”) residence,seizing cocaine, cash, a handgun, and other items. While thisinvestigation was independent of Project Koker, the police al-lege the seized cocaine belonged to Caines.

(b) On October 27, 2005, Banff investigators stopped a vehicledriven by Charles Weston Flight (“Flight”) and executed awarrant on behalf of the Koker investigative team. Cocaineand marihuana was seized from the trunk of the car. The po-lice allege Flight had returned from British Columbia afterpicking up the cocaine on behalf of Caines.

(c) On November 10, 2005, at the request of the Koker investiga-tive team, Red Deer Drug Section investigators stopped a ve-hicle driven by Caines, and seized $95,600.00 in cash fromthe vehicle.

(d) On November 24, 2005, Red Deer investigators stopped a ve-hicle driven by Michael Francis Marche (“Marche”) and exe-cuted a warrant on behalf of the Koker investigative team,seizing cocaine from the vehicle.

(e) On December 1, 2005, Fort McMurray investigators receiveda complaint about a suspicious substance found at an aban-doned rental property. The investigators attended at the sceneand seized cocaine from the property. The rental property is


alleged to have been owned by Ricco King. The police con-tend the cocaine belonged to Caines.

(f) On January 17, 2006, Fort McMurray investigators executeda warrant at a residence and seized cocaine, $12,000.00 incash and a money counting machine. While this investigationwas independent of Project Koker, the police allege the seizedcocaine 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 wit-ness, as well as to the following alleged relationships between variousindividuals:

1. Marche is a “co-operating witness for the prosecution:” ...on 23 February 2006, Michael Marche provided asworn statement to Cpl. Anderson of the EdmontonDrug Section .... MARCHE is a former trusted mem-ber of CAINES’ network and is now a cooperatingwitness for the prosecution.

In the statement, MARCHE identified himself as asignificant cocaine trafficker in CAINES network.MARCHE stated that he had received a call fromCaines on 15 September, advising Marche that an an-ticipated shipment of cocaine had come in, and thatMARCHE was to attend McDONALD’S residence topick up his supply. MARCHE advised that he at-tended 123 Gypsy Place in Fort McMurray, as in-structed by CAINES, and subsequently provided in-formation to investigators that resulted in theaforementioned 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 in-vestigator, Corporal Anderson, advises Caines of the theoryof 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 at-tempted to obstruct justice through his dealings withBerube.


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

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

6. The Report contends that Cardinal was a trafficker in FortMcMurray, working in the Caines network.

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

Mr. Chadi has advised the Court that he has satisfied himself he isnot acting in a conflict of interest and has the consent of each of hisfour clients to act for the other. The Crown is not alleging a conflictof interest which I understand to include an implicit representationthat the Crown does not foresee calling any one of the four accusedagainst any of the others, with some being charged on separate infor-mations. [Emphasis added.]

253 On November 22, 2007, Caines signed a “Consent Regarding Inde-pendent Legal Advice” respecting Mr. Chadi’s joint representation ofhim and Knapczyk, which stated:

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

There is presently a Preliminary Inquiry set for April 7, 2008 untilMay 22, 2008 in Edmonton, Provincial Court and I acknowledge andwaive my rights to Independent Counsel and consent to Mr. Chadiacting for myself and Mr. Knapczyk regarding said PreliminaryInquiry.

254 On November 22, 2007, Knapczyk signed a “Consent Regarding In-dependent Legal Advice” mirroring that of Caines.

255 On November 22, 2007, Mr. Juneja signed a Certificate of Indepen-dent Advice certifying that: Knapczyk attended before Mr. Juneja re-specting charges of conspiracy to traffic, criminal organization and traf-ficking in cocaine; his co-accused is Caines; Knapczyk appears tounderstand the charges and that he and his co-accused have both retainedMr. Chadi and wish him to represent them at the preliminary inquiry; he


wishes to make no statement himself or against Caines, though he under-stands that he can do so; he wishes Mr. Chadi to represent him despitethe fact Caines is his co-accused and also represented by Mr. Chadi; thatMr. Juneja is satisfied Knapczyk is fully apprized of potential conse-quences and is doing so with full knowledge and voluntary mind.

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

257 On January 23, 2008, the Crown wrote to Mr. Chadi and Mr. ClaytonRice advising that the Crown wished to address the issue of conflict at acase management meeting scheduled for January 24th and asking that therevised documents be provided before the meeting.

258 On February 21, 2008, the Crown again wrote to Mr. Chadi notingthat his agent had assured the Crown at the last case management hearingthat the waivers and affidavits would be forwarded to the Crown immi-nently, and providing a deadline of February 26, 2008.

259 On February 22, 2008, Caines signed a new Consent form referencingboth the preliminary hearing and trial, with Mr. Brownlee signing theCertificate of Independent Legal Advice.

260 On February 25, 2008, Knapczyk signed a new Consent form refer-encing both the preliminary hearing and trial, with Mr. Juneja signing theCertificate of Independent Legal Advice.

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

The issue of conflict was canvassed at several stages during the casemanagement 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 conspir-acy. In a parallel prosecution, Mr. Chadi’s conflicted position be-came irresolvable, shortly before the scheduled preliminary inquirysuch that the preliminary inquiry had to be adjourned so that bothcould get new counsel.


I have been advised by Counsel that the conflict issue will not ariseduring the course of this preliminary inquiry and the accused havebeen 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 othertwo individuals named in the alleged conspiracy for whom Mr. Chadiwas acting.

263 The Koker A preliminary inquiry commenced on April 7, 2008 beforePhilp P.C.J.. On April 22, 2008, the Crown called Michael Marche to thestand. The record of the proceedings for that day shows Mr. Hrabcak andothers attended for the Crown, Mr. Rice for Alcantara, Mr. Chadi forKnapczyk (likely for Caines as well, although the record does not sayso), and Mr. Juneja for Caines and Knapczyk. Mr. Hrabcak examinedMarche in chief. The following day, April 23rd, in an effort to employ the“Dix” procedure whereby independent counsel would crossexamines thewitness, Mr. Juneja cross-examined Marche. Mr. Chadi was not present.Marche was then cross-examined by Mr. Rice and re-examined by theCrown. On April 24th, the Crown examined Debbie Weiss, followed bycross-examination by Mr. Rice. Mr. Chadi was acting for Caines andKnapczyk and had no questions, nor was there any re-direct by theCrown.

(c) Facts relevant to the conflict issue relating to other cases in which Mr.Chadi acted as defence counsel for unindicted co-conspirators and anintended 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 againstthem for charges relating to events that underlie certain of the charges inthe Informations and present Indictment. One of those unindicted cocon-spirators, Marche, also is a prospective Crown witness in Koker A.

265 The role of Mr. Chadi in the various related prosecutions, includinghis 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 beingrepresented, the different prosecutions, and the time frames involved areset 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 #6to 10 of the present Indictment reference the same events that were thesubject of charges brought individually against McDonald, Marche, Car-dinal, Flight and John Caines, as summarized below and detailed in Ap-pendix A.

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

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

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

270 In the following chart (taken from material gathered by counsel forCaines and provided to the Court in relation to the charges against Me-lanie Berube (“Berube”) and the unindicted coconspirators Hoskins, JohnCaines, Flight, Marche, Gregoire, McDonald and Cardinal), the first col-umn identifies the accused in related proceedings. Those whose namesare bolded were represented by Mr. Chadi. The earliest date an allegedoffence is said to have arisen, the charge date, the approximate start ofMr. Chadi’s representation of the accused and the end date of his repre-sentation [I note that there were periods of time within those time frameswhen one or more of the accused whose names are bolded were repre-


sented by other counsel], together with information concerning the pro-ceedings, are given in the other columns:

Related Proceedings in Which Jamel Chadi Acted for anAccused

Name of Alleged Date Mr. Mr. DetailsAccused Date of of Chadi Chadi

Offence Charge Started StoppedActing Acting

Caines Apr. 20, Apr. Apr. Oct. 1, Charges were possession ofand Me- 2001 20, 25, 2008 cocaine for the purpose oflanie Ber- 2001 2001 trafficking. Caines also wasube* charged with trafficking in

cocaine. Mr. Chadi repre-sented the two accused untilat least February 2002. Heacted for Berube at the pre-liminary inquiry on Decem-ber 3, 2002. Caines andBerube were committed tostand trial on that date. TheBerube committal wasquashed prior to January 21,2003. Mr. Chadi recom-menced acting for Cainesuntil October 27, 2005,when the charges againstCaines were stayed by theCrown. The charges werereactivated on October 25,2006 against Caines. Mr.Chadi again acted for Cainesuntil October 1, 2008, whenthe charges were concluded.*Count 11 in Koker A al-leges that on October 20,2005, Caines offered Ber-ube a bribe in exchangefor her evidence

Aaron Sept. 15, Sept. Oct. June Charges were related to va-McDon- 2005 16, 11, 28, rious alleged drug and fire-ald* and 2005 2005 2006 arms offences, includingLetisha possession of cocaine for thePeters purpose of trafficking in

Fort McMurray. Mr. Chadirepresented the two accused




until they entered guiltypleas to certain of thecharges and other chargeswere withdrawn on June 28,2006. *McDonald is anunindicted co-conspiratorin Koker A

Michael Nov. 24, Nov. Nov. Dec. Charges were possession ofMarche* 2005 24, 30, 20, cocaine for the purpose ofand Deb- 2005 2005 2005 trafficking. A stay of pro-bie Weiss ceedings was entered on De-

cember 20, 2005. Mr. Chadirepresented both accused.Marche gave sworn state-ment to the police on Feb.23, 2006. *Marche is anunindicted coconspirator inKoker A and is an intend-ed Crown witness.

Caines, Jul. 1, Nov. Feb. Sept. Charges are alleged drug of-Knapczyk 2005 24, 26, 26, fences and criminal organi-and Al- 2006 2007 2008 zation offences. Mr. Chadicantara went on the record as coun-(Koker A) sel for Caines and Knapczyk

by or before February 26,2007 and appears to havebeen acting for them beforethat date. On September 5,2008, he applied to with-draw from the record due toconflict of interest and wasgiven leave to do so on Sep-tember 26, 2008.




Harry Jan. 17, Jan. Jan. Jan. 7, Charges were possession ofArm- 2006 18, 24, 2008 drugs for the purpose ofstrong 2006 2006 trafficking and being in pos-Breakell, session of the proceeds ofJeremy crime in Fort McMurray.Cardinal* Mr. Chadi and then A. Gilland Me- of Mr. Chadi’s office actedlissa for all three. On February 1,Dawn 2008, Cardinal pleadedShephard guilty to certain counts

while all counts againstBreakell and Shephard werewithdrawn. *Cardinal is anunindicted co-conspiratorin Koker A.

Cal Gre- Oct. 8, ? Nov. Mar. Charges were for assault, re-goire* 2006 7, 12, sisting a police officer and

2006 2007 other offences. A. Gill ofChadi and Co. representedGregoire until new counselappeared on March 12,2007. *Gregoire is anunindicted co-conspiratorin Koker A.




Charles Oct. 18, Nov. Nov. Mar. Charges were for conspiringWeston 2005 24, 30, 31, with Caines, Marche andFlight 2006 2006 2008 others to traffic in cocaineand John and for possession of theNorman proceeds of crime. Mr.Caines* Chadi represented both ac-

cused. The Crown addressedAnderson P.C.J. on February22, 2008 about a conflict inMr. Chadi representing bothaccused. On March 31,2008, Mr. Chadi withdrewfrom the record for JohnCaines. On April 1, 2008,Flight, representing himself,entered pleas of guilty tocertain charges. *Flight andJohn Caines are unindictedco-conspirators in KokerA.




Ricco Oct. 28, Nov. Dec. Sept. Koker C: Charges were forKing*, 2005 24, 12, 17, conspiring with Caines,Melissa 2006 2006 2008 Marche and persons un-Diane known to traffic in cocaine.King*, Melissa King and HoskinsMark An- also were charged with pos-drew session of the proceeds ofHoskins* crime. Mr. James, counseland others for co-accused Ricco and

Melissa King, wrote to theCrown querying why theCrown had not objected toMr. Chadi acting for Hos-kins given his prior repre-sentation of Crownwitnesses Marche andWeiss. At the preliminaryinquiry on September 15,2008, Mr. Chadi applied towithdraw, referring to inde-pendent counsel havingcross-examined Marche andWeiss in the Koker A pre-liminary inquiry. He indicat-ed that the spectre of Cainesbeing called by the Defenceput him in an untenable po-sition. On September 17,2008, Mr. Chadi’s applica-tion to withdraw was grant-ed. Guilty pleas wereentered on February 5, 2009with S. Virk acting as coun-sel for Hoskins. *Hoskinsand the Kings areunindicted coconspirator inKoker A.

(d) Arguments of the parties271 It is argued by the Defence that this period of about seven weeks de-

lay 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 fromSeptember 5, 2008 until October 24, 2008 which was attributable, asagainst him, to “other reasons for delay” or possibly Crown delay as be-ing the consequence of Mr. Chadi failing to deal with his conflict of in-terest issues at an earlier date and the Crown acquiescing in that failure.Alcantara now takes the position that the delay occasioned by the con-flict problem extended from September 5, 2008 to November 28, 2008,when new counsel for Knapczyk was on board, and that it is delay attrib-utable to the Crown’s failure to object to the Chadi conflict at an earlystage.

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 engagedhis fair trial interests. He points to Askov at para. 43, where Cory J. statedthat s. 11(b) is primarily concerned with an aspect of fundamental justiceguaranteed by s. 7. The interplay between these sections of the Charterwas 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 aspecific framework, the more extensive right to liberty and securityof the person of which no one may be deprived except in accordancewith the principles of fundamental justice. The purpose of s. 11(b)can, in other words, be ascertained by reference to s. 7 of the Char-ter. Section 11(b) is designed to protect, in a specific manner andsetting, the rights set forth in s. 7, though, of course, the scope of s. 7extends beyond those manifestations of the rights to liberty and se-curity of the person which are found in s. 11. Hence, the focus for theanalysis and proper understanding of s. 11(b) must be the individual,his or her interests and the limitation or infringement of thoseinterests.

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

275 Finally, he refers to the comments of La Forest J. in R. v. Beare,[1988] 2 S.C.R. 387 (S.C.C.) at para. 39 that while the common law isnot determinative of whether a particular practice violates a principle offundamental justice, it is a major repository of the basic tenets of ourlegal system. As I understand this aspect of Alcantara’s argument, he issaying that the common law rules concerning conflict of interest infusethe 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 theissue of the conflicts involving Mr. Chadi: (1) the conflicts that arise as aresult of his representation of Berube and Marche are so apparent theyleap off the page; and (2) the overall history of the various interrelatedproceedings demonstrates a context of systemic conflicts. He contendsthat the Crown ought to have brought both of these conflicts to the atten-tion of the Court and its failure to do so ought to be given weight in theoverall assessment of reasonableness of the delay in the balancingprocess.

277 Caines maintains that the delay between September 5, 2008 and Octo-ber 24, 2008 is attributable to the Crown alone, based on its failure toremove Mr. Chadi earlier on in the proceedings, particularly given thatthe issue was raised by Anderson P.C.J. during a case management meet-ing on March 5, 2008.

278 Caines points out that, as early as November 2005, when Marche andWeiss were charged with possession of cocaine for the purpose of traf-ficking, Corporal Anderson of the RCMP knew that Marche and Caineswere at least acquainted.

279 Caines argues that the Crown knew, even prior to his arrest on De-cember 5, 2006, that Mr. Chadi had represented many of the individualsinvolved in this prosecution as accused, unindicted co-conspirators or po-tential Crown witnesses, but did nothing to disqualify Mr. Chadi fromacting for anyone in this matter.

280 He asserts that, because of this conflict, the Crown should havebrought an application to disqualify Chadi & Co. years ago, citing in sup-port of his argument R. v. Edkins, 2002 NWTSC 9 (N.W.T. S.C.); R. v.Baltovich (2003), 170 O.A.C. 327 (Ont. C.A.); and R. v. Shamray, 2005MBQB 1, [2005] 6 W.W.R. 386 (Man. Q.B.).

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

282 Caines points to certain pivotal dates in arguing that the Crownshould have been astute to the egregious extent of the conflicts in whichMr. Chadi had placed himself. Caines says that by December 20, 2005,when the charges against Marche were stayed, it was clear to the Crownthat Marche would be an important witness in the Koker A prosecution.


Marche gave a sworn statement to the police on February 23, 2006.Caines submits that at least by February 26, 2007, when Mr. Chadi be-came his counsel of record and counsel for Knapczyk in the Koker Aprosecution, Mr. Chadi’s conflicts involved: two accused, Caines andKnapczyk, charged with conspiracy; his former client Marche, who is aCrown witness; and his former clients McDonald, Cardinal, Gregoire,Flight, John Caines and Hoskins, all of whom are unindicted co-conspir-ators 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 June1, 2007, including the Report to Crown Counsel from the police, a docu-ment that is 285 pages in length [I note that the Slavin affidavit suggeststhe Report was provided to all counsel on January 26, 2007]. In the Re-port, the different threads in the case were tied back to Caines anddemonstrated the alleged associations between Caines, the indicted andunindicted co-conspirators, and the witness Marche. The Report toCrown Counsel referred to the anticipated role of Marche as a Crownwitness.

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

285 Caines points to the March 4, 2008 case management meeting, duringwhich Anderson P.C.J. raised the problem of Mr. Chadi’s conflict in rep-resenting Caines and Knapczyk. During the continuation the followingday, the Crown said he did not foresee a conflict given they would be oflike mind in their defence and the waivers covered off the potential con-flict. Mr. Chadi acknowledged Judge Anderson’s experience, and saidthat “... you have my undertaking that every precaution in this regard willbe undertaken so that this matter can move forward.”

286 Caines argues that the procedure employed of having independentcounsel cross-examine Marche at the Koker A preliminary inquiry beforePhilp P.C.J. on April 7, 2008 did not meet the procedural requirementscontemplated by the Dix procedure, and could not cleanse the taint ofconflict.


287 The Indictment was filed in Koker A on August 22, 2008. The matterwas 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 dateabout whether Mr. Chadi was in a conflict of interest position. Ms.Karout, for Mr. Chadi, said that Mr. Chadi was involved in resolutiondiscussions pertaining to Caines, but should there be no resolution, “ofcourse, Mr. Chadi would have to get off the record for one of the two...ifnot both....” Counsel for Alcantara observed two conflicts - one betweenCaines and Knapczyk, and the other because Mr. Chadi was counsel for amajor Crown witness (Marche). Sanderman J. agreed with counsel’s ob-servations concerning the two conflicts.

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

289 The Crown contends that the time period from August 29, 2008 toJune 9, 2009 is attributable to actions of Alcantara and should weighagainst him as he and his counsel were unavailable to proceed to trial onKoker A during that period.

290 The Crown asserts that this time period should be attributed to “otherreasons for delay” as against Knapczyk and Caines as the delay wascaused by Alcantara and there were valid reasons not to sever the chargesagainst Knapczyk and Caines from those against Alcantara.

291 In terms of the conflict of interest issue, the Crown does not disputethat a conflict of interest with Mr. Chadi was highlighted and resolvedbetween August 29, 2008 and October 24, 2008 by Caines and Knapczykobtaining new counsel. It submits the conflict of interest did not contrib-ute to any additional delay given it was impractical to schedule the trialon Koker A during that time period due to the actions of Alcantara.

292 Further, the Crown says that Knapczyk and Caines likely were notavailable to proceed to trial in this time period due to their own actions.


Prior to the preliminary inquiry, they were made aware of a potentialconflict of interest with their counsel, Mr. Chadi. Nevertheless, theychose to proceed with Mr. Chadi as their counsel until Mr. Chadi re-moved himself as counsel on September 26, 2008. On October 24, 2008,Mr. Lazin officially went on the record as counsel for Caines. Knapczykappeared with his current counsel, although Mr. Juneja had not yet beenfully retained. A trial date was scheduled in anticipation that Mr. Junejawould be retained in due course, as he was on November 28, 2008. TheCrown suggests that, realistically, Mr. Lazin and Mr. Juneja would nothave 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 re-sulted in actual delay in the setting of the trial dates.

(e) Comments on previous representation of witness and the conflict issue294 The Court has the inherent jurisdiction, stemming from the role of

lawyers as officers of the Court, to control the conduct of counsel in legalproceedings in the public interest. Their conduct in legal proceedingsmay affect the administration of justice and is subject to this supervisoryjurisdiction (MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 (S.C.C.)at para. 18). Even where there is no motion for disqualification before theCourt, the Court has the inherent jurisdiction to require counsel to with-draw from proceedings (R. v. Dix, 1998 ABQB 92 (Alta. Q.B.) at para.33, (1998), 218 A.R. 18 (Alta. Q.B.)).

295 The court in MacDonald Estate at para. 13 identified three competinginterests: (1) the concern to maintain the high standards of the legal pro-fession and the integrity of our system of justice; (2) the countervailingvalue that the litigant should not be deprived of his or her choice of coun-sel without good cause; and (3) the desirability of permitting reasonablemobility in the legal profession. The court at para. 45 set out two ques-tions that typically must be answered in determining whether there is adisqualifying conflict of interest: “(1) Did the lawyer receive confidentialinformation attributable to a solicitor and client relationship relevant tothe matter at hand? (2) Is there a risk that it will be used to the prejudiceof the client?”

296 Where a previous relationship existed which is sufficiently related tothe retainer from which it is sought to remove the solicitor, the Courtshould infer that confidential information was imparted unless the solici-


tor satisfies the Court that no information was imparted that could berelevant (MacDonald Estate at para. 46).

297 The retainer in question here is the representation by Mr. Chadi ofCaines and Knapczyk. The Court can infer that confidential informationwas imparted to Mr. Chadi by Marche, as well as by the others Mr.Chadi represented in individual but related proceedings and who are nowunindicted co-conspirators in the Koker A prosecution.

298 In MacDonald Estate at para. 47, the second question posed iswhether the confidential information will be misused:

... A lawyer who has relevant confidential information cannot actagainst his client or former client. In such a case the disqualificationis automatic. No assurances or undertakings not to use the informa-tion will avail. The lawyer cannot compartmentalize his or her mindso as to screen out what has been gleaned from the client and whatwas acquired elsewhere. Furthermore, there would be a danger thatthe lawyer would avoid use of information acquired legitimately be-cause it might be perceived to have come from the client. This wouldprevent the lawyer from adequately representing the new client.Moreover, the former client would feel at a disadvantage. Questionsput in cross-examination about personal matters, for example, wouldcreate the uneasy feeling that they had their genesis in the previousrelationship.

299 In my view, these observations apply in respect of Mr. Chadi being inan 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 realpotential for such confrontation, in the context of counsel having hadaccess to relevant confidential information in the prior retainer,squarely raises conflict of interest with counsel in an adversarialstance 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 wit-ness may be in a position to assert “countervailing constitutionalrights”: Proulx and Layton, Ethics and Canadian Criminal Law,supra at 292-3. Can it be shown that “a reasonably informed personwould be satisfied that no use of confidential information” would oc-cur? (R. v. Parsons, supra at page 5).

301 In R. v. Con-Drain Co. (1983) Ltd., 2008 ONCJ 114 (Ont. C.J.), thecourt dealt with an application by the Crown to remove counsel who hadrepresented both the corporate and individual defendants in proceedings


under the Occupational Health and Safety Act. The Crown alleged con-flict of interest as charges were stayed against the individual defendantand he became a Crown witness. The motion requesting counsel’s re-moval was granted because of the risk that relevant confidential informa-tion would be used to the prejudice of the former individual defendantand because counsel would have a right to cross-examine him as aCrown witness. The court expressed the concern that even if law-yer/client confidences were not misused in cross-examination, the wit-ness might be prone to his former lawyer’s suggestions due to fear ofmisuse or due to trust arising from their lawyer/client relationship (atpara. 33).

302 The Crown argues that the conflict presented by Mr. Chadi’s priorrepresentation of Marche was resolved at the preliminary inquiry by us-ing 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 jailhouse informant was to provide crucialevidence against Mr. Dix. Counsel for Mr. Dix had represented the in-formant some six years prior on a parole violation, and his partners hadacted for the informant about four years prior. On the Crown’s applica-tion to have the court require that counsel for Mr. Dix withdraw from thecase, Veit J. considered the guidelines established by the Supreme Courtof Canada in MacDonald Estate for determining whether a lawyer shouldbe disqualified from acting because of conflict of interest.

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

305 Veit J. denied the Crown’s application and instead accepted the de-fence proposal that independent counsel cross-examine the informant. Inaddition, she directed that elaborate procedures be implemented to ensurethat no disclosure of confidential information would occur by the“tainted” lawyer to the lawyer conducting the cross-examination of theinformant. Specifically, she accepted defence counsel’s undertaking thathe and his associates would not pass on any privileged or confidentialinformation relating to the informant to the independent counsel con-ducting the cross-examination. She required defence counsel and his as-sociates 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 infor-mation concerning the informant. Defence counsel was directed to givewritten instructions to everyone in his firm that the firm’s files relating tothe informant would remain sealed and was to tell all employees of theoffice that disciplinary action would ensue if there was a breach of thatdirection. Finally, the court ordered that the independent lawyer hired tocross-examine the informant would receive full crown disclosure relatingto the informant from the Crown directly and not from defence counselor his associates. In this way, the confidentiality of the informant’s previ-ous relationship with counsel for Dix was maintained but at the sametime Dix was assured his right to counsel and entitlement to a speedy fairtrial.

306 There is a significant difference between Dix and the present case. Inthis case, the Crown witness at issue, Marche, is alleged to be part of theconspiracy while in Dix, the Crown witness had previously been repre-sented in unrelated matters. The conflict in Dix arose late in the proceed-ings and came as a surprise to defence counsel. The conflict respectingMarche was obvious to all at least by the time disclosure of the Report toCrown counsel was provided in June 2007, and likely much sooner.

307 Mr. Chadi represented Marche with respect to charges of cocaine traf-ficking in Fort McMurray laid on or about November 24, 2005. In theKoker A prosecution, Marche is said to have been trafficking in theCaines organization and his activities are said to have given rise to Count#8 against Caines in the Information before the Court at the preliminaryinquiry and in the Indictment before this Court. Marche testified at thepreliminary and is expected to testify at trial.

308 There were no consents or certificates of independent advice in re-spect of the Marche conflict, either signed by and for Marche, Knapczykor Caines. There is no evidence that procedures were undertaken, as inDix, to ensure the confidentiality of Marche was protected except thatindependent counsel undertook the cross-examination.

309 I conclude that Mr. Chadi had a conflict of interest with respect to therepresentation of Caines and Knapczyk in the Koker A prosecution be-cause he was former counsel to Marche, a key Crown witness, a factknown to Mr. Chadi from the Information and confirmed when disclo-sure was received by him on or before June 1, 2007. That disclosure alsocontained an allegation by Marche of Mr. Chadi’s involvement in theconspiracy (an allegation that is unproven). The Dix procedure employedwas minimal, and no consents were obtained from Marche or Caines or


Knapczyk relative to that conflict. The moment that Mr. Chadi obtainedthe knowledge that Marche would be a Crown witness, he should haverecognized the conflict and not taken on the representation of Caines andKnapczyk.

310 I note that Caines and Knapczyk do not raise the Marche conflict is-sue for any purpose other than in relation to the delay occasioned by thechange of counsel for Knapczyk. Whatever may have been the conse-quences at the preliminary hearing, in the proceedings before me, coun-sel collectively have been diligent in their representations and, as the re-cord will show, to date no stone has been left unturned.

(f) Comments on unindicted co-conspirators and the conflict issue311 In Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001) at

p. 307, Michael Proulx and David Layton emphasize that the duty of loy-alty to a former client is not limited to parties who are charged on theinformation and can extend to unindicted co-conspirators.

312 What of the potential conflict between Mr. Chadi’s representation ofCaines and Knapczyk and his prior or concurrent representation of otheralleged unindicted co-conspirators? If they were called as witnesses forthe Crown or the Defence, there would be a conflict on the same basis asthere was arising from Mr. Chadi’s past relationship to the witnessMarche. 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 exten-sive evidence and argument to demonstrate that Mr. Chadi’s representa-tion of unindicted co-conspirators also led to his being in conflict in theKoker A proceedings. When Mr. Chadi undertook the representation ofCaines and Knapczyk, he had represented or was representing McDon-ald, Cardinal, Gregoire, Flight, John Caines and Hoskins in relation totheir independent charges arising from events that are alleged to formpart of the conspiracy count. In the Koker A prosecution, it is allegedthat the drugs that were found in the possession of the co-conspiratorsbelonged to Caines.

314 As noted in MacDonald Estate, at para. 46, where a previous relation-ship existed that is sufficiently related to the one in issue, the Courtshould infer that relevant confidential information was imparted in thefirst retainer. It can be assumed that Mr. Chadi received confidential in-formation relevant to the Koker A prosecution during his representationsof certain of the alleged unindicted co-conspirators. Were the interests ofthe alleged co-conspirators inter se congruent? Were their interests con-


gruent with or in conflict with those of Caines and Knapczyk? Whoseinterests are paramount? Are the interests of some sacrificed to the inter-ests of others? Is the alleged criminal organization or conspiracy a hierar-chical one? These are obvious questions that arise in this situation.

315 The facts in this case are complex and the actions of the alleged con-spirators and unindicted co-conspirators are inextricably interwoven be-cause the facts relating to the charges faced by McDonald, Marche, Gre-goire, Cardinal, Flight, John Caines and Hoskins are alleged to form partof the charges faced by Caines in the Koker A prosecution before theCourt. In a situation such as this, where one counsel represents certain ofthe alleged conspirators and has, or does represent certain allegedunindicted co-conspirators, there are at least two broad bases of conflictrelating to the unindicted co-conspirators which must be examined.

316 First, there is the potential that the unindicted co-conspirators maybecome witnesses, as is the case with the witness Marche.

317 Second, there is the duty of loyalty owed to the other clients or for-mer clients. In the situation of multiple concurrent and successive repre-sentations in which Mr. Chadi placed himself, there existed the problemthat Mr. Chadi would bring knowledge that he obtained in his representa-tion of the alleged unindicted co-conspirators in the individual prosecu-tions involving them to his representation of Caines and Knapczyk. Useof information from former or current clients would have been a breachof Mr. Chadi’s oath of confidentiality to those clients, unless informedconsents were given based on full disclosure. As the Court inMacDonald Estate noted at para. 47, the “... lawyer cannot compartmen-talize his or her mind so as to screen out what has been gleaned from theclient and what was acquired elsewhere.”

318 Some of the problems presented by multiple concurrent and succes-sive representations in conspiracy cases are illustrated in the Koker andrelated prosecutions in which Mr. Chadi withdrew as counsel due to con-flict either at or after the preliminary hearing, including: Koker A; theFlight and John Caines matter; and Koker C.

The Flight and John Caines Conflict319 Mr. Chadi went on the record for Flight and John Caines on Decem-

ber 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 ascounsel for Caines, Knapczyk, Flight and John Caines. He wrote: “Mr.


Chadi has advised the Court that he has satisfied himself he is not actingin a conflict of interest and has the consent of each of his four clients toact for the other” (emphasis added).

321 On November 13, 2007, Anderson J. was conducting a case manage-ment 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. Chadiwas representing Caines, as well as John Caines and Flight, whose pre-liminary inquiry was scheduled for March 3 - 14, 2008. Three monthspreviously, Mr. Chadi had committed to file consents regarding the mul-tiple representations, but had not yet done so. He agreed to do so respect-ing the representation of the two Caines, Knapczyk, and Flight by thefollowing week. On March 4th, Anderson J. held a pre-preliminary con-ference in the Koker A matter, scheduled to commence April 7th. Hestated that the preliminary in the Flight and John Caines matter was tocommence Monday, March 3rd, but was put over for a week to sort out aconflict, and the matter might or might not be able to proceed. AndersonJ. observed:

THE COURT: That is right. However, they will have to have himhere tomorrow at 1:30. Okay. Here is what brought us here,as I mentioned, an issue of conflict arose about a week and ahalf 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 othercharges, I believe. That preliminary inquiry was scheduled tocommence on Monday of this week, and that commencementdate has been put over a week while the issue of conflict issorted out. The — and it may or may not be able to proceed.It punctuated, however, the fact that if a conflict rears its headin actuality in proceedings, particularly at the eleventh hour,it can cause cases to go sideways very quickly, and that isparticularly of concern where accused persons are in custodyand particularly where the accused persons in custody are notthe person to whom the conflict relates, and for that reason, Iwanted to address as quickly as possible most specifically anyquestion of conflict that could exist in this prosecution be-cause Mr. Chadi acts for —

322 On March 5th, at a continuation of that pre-preliminary conference inKoker A, Mr. Chadi stated that:

When we deal with the matters, and quite frankly I never envisionedthat it could happen even in Flight and in Caines, but it did and obvi-ously we’re extremely careful in how we assess this second matter...


323 Ultimately, on March 31st, 2007, Mr. Chadi withdrew from represen-tation of John Caines due to conflict. Flight, unrepresented, entered pleason April 1, 2008.

324 Mr. Chadi was on the record for both Caines and Knapzcyk in KokerA by February 26, 2007 (and appears to have been acting for them wellbefore that date). Part of the Crown disclosure in Koker A included thetheory that John Caines and Flight were working in the Caines organiza-tion. It is alleged that Flight worked in the conspiracy, gathering funds,as well as transporting and delivering cocaine, and that John Cainesworked with him, in the gathering and accounting of money from peoplein the Jeffrey Caines’ network. Flight is an unindicted co-conspirator inthe Koker A prosecution.

325 Anderson P.C.J. wrote that Mr. Chadi had advised he had the consentto represent Flight, John Caines, Caines and Knapczyk. No signed con-sents to that effect were put in evidence in this case. Assuming that in-formed consents were in place, a conflict still arose resulting in the even-tual withdrawal by Mr. Chadi from representation of Flight and JohnCaines.

The Hoskins Conflict in Koker C326 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, counselfor the Kings, wrote to the Crown querying why the Crown had not ob-jected to Mr. Chadi acting for Hoskins, given his prior representation ofCrown witnesses Marche and Weiss. At the preliminary inquiry on Sep-tember 15, 2008, Mr. Chadi applied to withdraw. He indicated that thespectre of Caines being called by the Defense put him in an untenableposition. On September 17, 2008, Mr. Chadi’s application to withdrawwas granted.

328 The problem of conflict presented by multiple concurrent and succes-sive representation in conspiracy cases goes beyond the witness issue asin the Marche example, and the co-accused issue, as in the Caines andKnapczyk example. It extends to the issues that arise between allegedconspirators and alleged unindicted co-conspirators. It is a question ofmultiple loyalties arising incident to the various solicitor-client relation-


ships. Absent consent to release confidentiality by those concerned, theconfidentiality of the relationship must be maintained.

329 In R. v. Neil, [2002] 3 S.C.R. 631 (S.C.C.) at para. 19, the court iden-tified the following aspects of the duty of loyalty owed by a lawyer to hisor her client: (1) the duty of confidentiality; (2) the duty to avoid con-flicting interests; (3) the duty of commitment to the client’s cause fromthe time of retainer, “i.e. ensuring that a divided loyalty does not causethe lawyer to ‘soft peddle’ his or her defence of a client out of concernfor another client;” and (4) the duty of candour with the client on mattersrelevant to the retainer. At para. 27, Binnie J. discussed the British caseof Bolkiah v. KPMG (1998), [1999] 2 A.C. 222 (U.K. H.L.):

More recently in England, in a case dealing with the duties of ac-countants, the House of Lords observed that “[t]he duties of an ac-countant cannot be greater than those of a solicitor, and may be less”(p. 234) and went on to compare the duty owed by accountants toformer clients (where the concern is largely with confidential infor-mation) and the duty owed to current clients (where the duty of loy-alty prevails irrespective of whether or not there is a risk of disclo-sure of confidential information). Lord Millett stated, at pp. 234-35:

My Lords, I would affirm [possession of confidential in-formation] as the basis of the court’s jurisdiction to inter-vene on behalf of a former client. It is otherwise wherethe court’s intervention is sought by an existing client, fora fiduciary cannot act at the same time both for andagainst the same client, and his firm is in no better posi-tion. A man cannot without the consent of both clients actfor one client while his partner is acting for another in theopposite interest. His disqualification has nothing to dowith the confidentiality of client information. It is basedon the inescapable conflict of interest which is inherent inthe situation. [Emphasis added in Neil.]

330 The narrow question of whether there is impermissible conflict in asituation of successive representations in related matters where there isnot necessarily adversity in the present and former clients’ interests issquarely 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 bebased on any conflict of interest, real or perceived, for there is none.The fiduciary relationship which subsists between solicitor and clientcomes to an end with the termination of the retainer. Thereafter thesolicitor has no obligation to defend and advance the interests of his


former client. The only duty to the former client which survives thetermination is a continuing duty to preserve the confidentiality of in-formation imparted during its subsistence. [Emphasis added.]

331 The court in Bolkiah confirmed that it is the solicitor’s duty to pre-serve the confidentiality of former clients, and that the court should inter-vene unless there is no risk of disclosure (at p. 3). The court indicatedthat the lawyer’s duty to the former client is not to make any use of theconfidential information, without the consent of the former client, otherthan for his benefit. The former client is entitled to prevent his formerlawyer from exposing him to any avoidable risk, including the increasedrisk of use of the information to his prejudice arising from the formerlawyer’s acceptance of instructions to act for another client with an ad-verse interest in a matter to which the information is or may be relevant.The court noted that the English test for disqualification set out inRakusen v. Ellis case, [1912] 1 Ch. 831 (Eng. C.A.), has been replaced inCanada by the two rebuttable presumptions set out in MacDonald Estate:(1) that confidential information will have been communicated by theformer client in the course of the retainer and (2) that lawyers who worktogether share confidences. The court went on to state:

It is in any case difficult to discern any justification in principle for arule which exposes a former client without his consent to any avoida-ble risk, however slight, that information which he has imparted inconfidence in the course of a fiduciary relationship may come intothe possession of a third party and be used to his disadvantage.Where in addition the information in question is not only confidentialbut also privileged, the case for a strict approach is unanswerable.Anything less fails to give effect to the policy on which legal profes-sional privilege is based. It is of overriding importance for the properadministration of justice that a client should be able to have completeconfidence that what he tells his lawyer will remain secret. This is amatter of perception as well as substance. It is of the highest impor-tance to the administration of justice that a solicitor or other person inpossession of confidential and privileged information should not actin any way that might appear to put that information at risk of com-ing into the hands of someone with an adverse interest.

Many different tests have been proposed in the authorities. These in-clude the avoidance of “an appreciable risk” or “an acceptable risk.”I regard such expressions as unhelpful: the former because it is am-biguous, the latter because it is uninformative. I prefer simply to saythat the court should intervene unless it is satisfied that there is norisk 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 sub-stantial. This is in effect the test formulated by Lightman J. in Re aFirm of Solicitors, [1997] Ch. 1, at p. 9 (possibly derived from thejudgment of Drummond J. in Carindale Country Club Estate Pty.Ltd. v. Astill (1993) 115 A.L.R. 112) and adopted by Pumfrey J. inthe present case.

332 While it is unnecessary for disposition of the issues before me to dealwith the conflicts issue beyond that of Marche, the Defence led extensiveevidence to show that when Mr. Chadi ultimately withdrew from his rep-resentation of Caines and Knapzcyk, he was in the midst of multiple con-flicts of which the Crown was aware, given its role of prosecuting all butthe Gregoire matter, which was a provincial prosecution. As there is apublic policy issue raised on facts in this case that rather dramaticallyillustrate the problem of conflict in conspiracy cases, I have taken theopportunity to discuss the conflicts issue in some depth. A more detailedanalysis of the McDonald, Gregoire, Cardinal, and Berube matters isunnecessary.

333 Counsel are correct that it is necessary for both the Defence and theCrown to carefully consider the complexities presented by multiple con-current and successive representations in conspiracy cases, in the inter-ests of avoiding delay and adjournments, but also to protect and advancethe principled goals of conflict management as set out in MacDonaldEstate: (1) the value of maintaining the high standards of the legal pro-fession and the integrity of our system of justice; (2) the countervailingvalue that the litigant should not be deprived of his or her choice of coun-sel without good cause; and (3) the desirability of permitting reasonableflexibility within the legal profession. The submissions of counsel thatthe common law rules against conflict of interest infuse the fair trial pro-tections in s. 7 and 11(b) of the Charter is compelling. A fair trial re-quires that counsel be without conflict.

(g) Comments on co-accused conflict issue334 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 (Alta. C.A.), the appellant and her

daughter entered pleas of guilty to conspiracy to murder. The appellantappealed on the basis that her sentence should be vacated due to conflictof interest. The court held that the facts did not disclose a real or appar-ent conflict between the two accused persons. As the Crown in this caseargues, different levels of culpability are not enough to demonstrate con-


flict; it must be shown that interests are at odds, so that joint representa-tion 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 (S.C.C.), 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 Appealheld that in a post-conviction situation, if an accused is to challenge aconviction or sentence on appeal, he or she must show more than apossibility of conflict of interest; while actual prejudice need not beshown, the appellant must demonstrate the conflict of interest andthat the conflict adversely affected the lawyer’s performance on be-half of the appellant. See also Silvini, supra, at p. 551, perLacourciere 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 notnecessary for the accused to demonstrate actual prejudice because“[t]he right to have the assistance of counsel is too fundamental andabsolute to allow courts to indulge in nice calculations as to theamount of prejudice arising from its denial”: Glasser v. UnitedStates, 315 U.S. 60(1942), at p. 76.

337 In R. v. W. (W.) (1995), 25 O.R. (3d) 161 (Ont. C.A.), the court dis-missed an appeal where a couple alleged that their joint representationhad led to an unfair jury verdict. Doherty J.A., for the court, found noevidence of a real or apparent conflict of interest, but commented at pa-ras. 23-24 and 38:

... A lawyer can render effective assistance only when that lawyergives the accused’s cause the undivided loyalty which is a prerequi-site to proper legal representation. Within the limits imposed by legaland ethical constraints, the lawyer must champion the accused’scause without regard to counsel’s personal interests or the interests ofanyone else... This duty of undivided loyalty not only serves and pro-tects the client, but is essential to the maintenance of the overall in-tegrity of the justice system...

While there can be no absolute bar against the joint representation ofco-accused, joint representation puts counsel’s obligation of undi-vided loyalty to each client at risk... In attempting to serve two mas-ters, counsel may do a disservice to the interests of one or both.Counsel who undertake the joint representation of co-accused assumethe heavy burden of ensuring that they are not placed in a position ofrepresenting interests which are or may be in conflict: Rules of Pro-fessional Conduct of the Law Society of Upper Canada (1992), Rule5. Where counsel fails to perform that duty and undertakes the repre-


sentation of interests which do or may conflict, the court will ordercounsel removed from the record...

. . .

It is incumbent on an appellant to point to a specific instance or in-stances where the appellant’s interests and those of the co-accuseddiverged, requiring counsel to choose between them... That is not tosay that an appellant must demonstrate that counsel consistentlyfavoured the co-accused’s interests. If, at any point in the course ofthe joint retainer, counsel, when faced with conflicting interests, tooka course of action which adversely impacted on the effectiveness ofcounsel’s representation of the appellant, then the appellant has es-tablished the necessary adverse effect.

338 The court in Widdifield at para. 33 distinguished between the func-tions of a trial judge and an appellate court when faced with a conflict ofinterest claim, stating that where the issue is raised at trial, the court mustbe concerned with actual conflicts of interests and potential conflicts thatmay develop as the trial unfolds. In deciding whether counsel should beallowed to act for co-accused, the trial judge must speculate to a degreeas to the issues which may arise in the trial. The trial judge must proceedwith caution. When there is any realistic risk of a conflict of interests, thetrial judge must direct that counsel not act for one or possibly eitheraccused.

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

340 In A.U.P.E. v. U.N.A., Local 168, 2009 ABCA 33, 307 D.L.R. (4th)44 (Alta. C.A.), the court commented at para. 30 that waivers and con-sents may overcome many problems relating to conflicts of interests, butthere are situations where consent is simply ineffective as matters unfoldin such a way that the lawyer, due to his or her fiduciary duties or thepassage 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 witnesswho 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(Nfld. C.A.), the court declined to remove counsel in a murder case al-though that counsel had acted for the accused’s father in a matrimonialmatter. The father had signed a waiver of solicitor-client privilege. The


waiver had been signed with full consent and no confidential informationcould be used by the accused’s counsel at the trial.

343 Waivers were signed in this case by both Caines and Knapczyk. Thewaivers do not deal with the Marche conflict or the multiple concurrentand successive representation issues (except it is said that each of JohnCaines, Flight, Caines and Knapczyk consented to the representation ofthe others). It may be that this is a case contemplated by the A.U.P.E.decision, where consent is simply ineffective or inadequate to the job ofwaiving the multi-layered interests at stake.

344 Both judges before whom this matter came in preliminary proceed-ings, very experienced in criminal law matters, immediately expressedconcern about whether Mr. Chadi was in a conflict position by acting forboth Caines and Knapczyk, on one occasion with knowledge of the prob-lem pertaining to the Marche conflict. It may be they were concernedbecause the charges include conspiracy and the accused persons, pre-sumed to carry out different roles in the alleged conspiracy, may be atodds, or they may have been concerned because the Indictment allegesmembership in a criminal organization and the Crown’s theory alleges ahierarchical structure.

345 These judicial inquiries are consistent with the view expressed in Eth-ics and Canadian Criminal Law at p. 344, that: “...in some instances thejudge may have a positive obligation to inquire into the possibility ofconflict, most especially where a single counsel appears for multipleclients.”

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

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


(h) Responsibility for raising the conflict issue348 The next question is whether the responsibility to take steps to re-

move Mr. Chadi as counsel fell to the Crown or whether Caines andKnapczyk bear the responsibility.

349 The court in R. v. Con-Drain at para. 20 expressed the view that thereis an obligation on the parties to raise the matter of conflict “at the earli-est practicable stage,” citing Neil at para. 38. It commented that whenthere are sufficient facts at hand, the disqualification motion should bebrought on notice before the start of the trial. According to the court atpara. 21:

... The law requires both parties to be vigilant in avoiding conflictissues. It is not only the duty of the Crown to raise potential conflictsof interest. There is also a heavy onus on the defence to ensure thatthere 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 (Ont.C.A.), aff’d [1992] 3 S.C.R. 465 (S.C.C.), the court reviewed certain s.11(b) determinations made at trial. The trial judge had found that theCrown was responsible for raising a conflict issue as early as possible,attributing the resulting delay to the Crown. The Court of Appeal foundthat the trial judge had erred in attributing the delay to the Crown, giventhat defence counsel had known about the conflict for the same period oftime but had steadfastly denied the conflict while continuing to act.

351 In R. v. Beauchamp, [2008] O.J. No. 5315 (Ont. S.C.J.), Smith J.ruled on certain periods of delay, one of which was attributable to a hear-ing on conflicted counsel. In finding that the delay was attributable eitherto an inherent time requirement or to the defence, Smith J. concluded atpara. 31 that the responsibility to avoid a conflict of interest rests withthe lawyer involved and, therefore, the delay was not attributable to theCrown. The delay was regarded as neutral as against other accused per-sons and the Crown and allocated to the accused whose counsel was inconflict.

352 In R. v. Edkins, 2002 NWTSC 9 (N.W.T. S.C.), cited by counsel forCaines, the issue before Vertes J. was whether counsel for the defendantshould be removed for a conflict as he had acted for a Crown witness inthe past. However, Vertes J. was not determining whether delay was at-tributable to the Crown. In concluding that defence counsel would haveto 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 concernabout a potential conflict of interest as soon as she became aware of it.

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

There was more than the inherent time requirements of retaining andinstructing counsel after the charge has been laid in this case. Therewas an extraordinary delay in resolving the status of counsel forCombden and DeFranco. There is no explanation why the informa-tion about the potential conflict had not been given at least orally toMr. Sosna much earlier in the proceedings. ... There is no responsi-bility for that delay attributable to Mr. Chang or his counsel. Theresponsibility rests with the Crown for failure to deal with the issueof conflict and require prompt replacement of the defence counsel.

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

355 In R. v. Krisza, [2009] O.J. No. 2205 (Ont. S.C.J.), the Crown ap-pealed a stay of proceedings granted to the defence on the basis of asuccessful s. 11(b) application for delay. One lawyer had represented all11 defendants on charges relating to illegal hunting and animal cruelty,and eventually withdrew due to conflict. The trial judge had determinedthat responsibility for the resultant delay should be shared between thedefence and the Crown. Kruzick J., on appeal, found that the trial judgehad reached a reasonable compromise by splitting the difference betweenthe 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 trialjudge was reasonable in finding that the prosecution had an obligation toact to have the lawyer removed when that became apparent.

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

Counsel must be wary of representing multiple accused, and shouldonly do so after extremely careful consideration of the conflict-of-interest issue. By the same token, Crown counsel confronted with acase of multiple representation should make it a practice to addressconflict-of-interest concerns promptly, at least with defence counselif not with the court. Trial judges would also do well to make formalinquiries whenever co-accused share a single counsel.

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

Moreover, the Crown shares with all counsel the duty to raise con-flict issues with the court where necessary to maintain the integrity ofthe administration of justice. The Crown should act promptly inbringing 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 toinquire into the possibility of a conflict, most especially where a sin-gle counsel appears for multiple clients.” [Widdifield, Robillard,cited, and R. v. Henry (1990), 61 C.C.C. (3d) 455, where the lawyerwas allegedly involved in the offence.]

357 The conflicts that arise where one counsel or firm carries out multipleconcurrent and successive representations in conspiracy cases may in-volve conflicts between accused and witnesses, as in the Marche exam-ple; or conflicts between accused and unindicted coconspirators, as in theJohn Caines and Flight example; or conflicts between two co-accused onthe same information and Indictment, as in the Caines and Knapczyk ex-ample. There may be actual conflicts in the sense of patent adversity ofinterests; or more subtle conflicts that arise by virtue of the confidentialinformation obtained in one representational capacity being used, adver-tently or inadvertently, but without consent, in the conduct of concurrentor subsequent retainers.


358 It is logical to conclude that in conspiracy cases which are necessarilyhierarchical in nature (as this one is alleged to be), people have differentroles and interests and that one lawyer cannot represent many or all ofthem without risk of compromising the interests of some in favour ofthose of others. The concern is that the interests of the powerful wouldtrump those of the least powerful. For example, in a set of complex inter-related cases, the cross-examination could be conducted to the benefit ofone client while to the detriment of another, and the latter is none thewiser.

359 Defence counsel’s strategies cannot be permitted to sabotage the in-terests of justice and the individual fair trial interests of each accusedperson who finds him or herself in the criminal justice system. Norshould convenient disposition of matters where one counsel undertakesmultiple representation influence the Crown with respect to its duties.

360 Conflict management ensures the timely and orderly conduct of crim-inal proceedings. In my view, it is necessary that these conflict issues beraised 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 seekingpurpose of trials. As counsel has argued, ultimately it is a question oftrial fairness.

(i) Evidence of Carol Zelant361 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 ormore) per week. The usual time lag for long trials is less than threemonths. For example, as of October 13, 2010, she could schedule a longtrial for January 2011. In May 2008, the earliest time for a long trialwould have been December 1, 2008. According to Ms. Zelant, the timelag is the same for very long trials, defined as ones anticipated to last 25days or more.

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


(j) Decision on Stage 5363 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 tenta-tive date for commencement of the trial was scheduled for November 2,2009. This date was confirmed on November 28, 2008, when Mr. Junejaadvised the Court that he had been retained by Knapczyk.

364 There is no direct evidence that the delay in scheduling the trialcaused by Mr. Chadi’s application to withdraw as counsel due to conflictresulted in any actual delay in the proceedings. All counsel estimated thetrial in Koker A would take eight months to complete. When the Appli-cants were first arraigned on August 29th, Alcantara already had sched-uled his Koker B trial to commence on February 2, 2009, which was lessthan six months away. As a result, there would have been insufficienttime to complete the Koker A trial prior to commencement of the KokerB 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 scheduledto start before September 2009.

365 However, I am prepared to infer, based on the evidence of Ms. Zelantthat in 2008 a long trial could be obtained within three to five months ofarraignment, that the seven week delay in scheduling the trial in the pre-sent matter pushed the trial date back by at least that amount and did, infact, constitute real delay.

366 In terms of Caines and Knapczyk, the responsibility for this sevenweek delay is shared by them and the Crown.

367 Mr. Chadi had the primary responsibility to raise the conflicts inher-ent in multiple concurrent and successive representations in related pro-ceedings of witnesses, alleged conspirators, and alleged unindicted co-conspirators. Acting as case managers, Andersen P.C.J. and SandermanJ. raised the issue, but the Court’s information is limited unless the issuesare raised squarely before it.

368 Mr. Chadi did recognize that he faced a conflict by his prior represen-tation of an important Crown witness, Marche, in the Koker A prosecu-tion. More was required than independent counsel for the cross examina-tion of Marche. No procedures were employed to protect hisconfidentiality interests, as in the Dix case, and no consent was obtainedfrom Marche.


369 Mr. Chadi faced conflicts because of multiple concurrent and succes-sive representation of accused persons who were unindicted co-conspira-tors in the Koker A prosecution. He should have obtained Consents fromthese former clients (as he did with John Caines and Flight) before repre-senting Caines and Knapczyk. The Consents signed by Caines andKnapczyk did not deal with the other unindicted co-conspirators forwhom Mr. Chadi previously had acted (although it is said they consentedto concurrent representation of John Caines and Flight).

370 Mr. Chadi then faced the potential conflicts inherent in the represen-tation of two accused in a complex conspiracy case. Caines andKnapczyk consented to that dual representation, but the Consents did nottouch on the Marche conflict or the other alleged unindicted co-conspira-tors previously represented by Mr. Chadi. Despite the Consents, the con-flicts prevailed and Mr. Chadi withdrew from the representation ofCaines and Knapczyk prior to the scheduling of trial dates, causing anadjournment for the two Accused to obtain new counsel. Mr. Chadi isresponsible for the time that was required to obtain new counsel.

371 The Crown, however, shares this responsibility. The Crown was inpossession of all of the relevant facts involving Mr. Chadi’s multipleconcurrent and successive representational roles. Indeed, because thefacts that underlay the charges against the unindicted co-conspiratorsalso will form part of the Crown’s case in the Koker prosecutions, I mustconclude that the Crown had full knowledge of the various representa-tions undertaken by Mr. Chadi when he became counsel of record in thevarious related matters (with the exception of Gregoire). These mattersshould have been raised by the Crown for determination by a judge longbefore the conflicts required Mr. Chadi to withdraw.

372 In terms of Alcantara, the time period of September 6, 2008 to Octo-ber 24, 2008 is categorized as both “other reasons for delay” and Crowndelay.

Stage 6: October 25, 2008 (day after trial date scheduled) to November10, 2009 (trial to commence)

(a) Events373 Pre-trial motions in Koker B were scheduled from February 2, 2009

to May 29, 2009 and closing arguments in that case did not concludeuntil June 9, 2009.

374 Pre-trial conferences occurred in both cases between November 28,2008 and January 29, 2009.


375 On September 14, 2009, Caines entered guilty pleas to two counts inthe 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 parties378 Alcantara and Caines submit this period of delay was due to the deci-

sion of the Crown to proceed with Koker B first. It would have beenimpractical to schedule the trial in the present matter immediately afterthat in Koker B due to the length of the anticipated trial and imminentsummer recess. They contend this one year delay should be attributed tothe 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 “otherreasons for delay” as concerns Knapczyk and Caines.

380 The Crown says the period from June 9, 2009, when the evidentiaryportion of Koker B finished, to November 2, 2009, when the Koker Atrial commenced, is attributable to actions of the Applicants. It says that,theoretically, the Applicants were available to proceed with the Koker Atrial after June 9, 2009, but Defence counsel’s schedule prevented thetrial from commencing prior to November 2, 2009, as reflected in Mr.Lazin’s comments of November 28, 2008 that: “... the dates [November2, 2009 to June 30, 2010] that were originally set were the earliest datesthat were set given all counsel’s schedules.”

381 The Crown points out that the trial dates were scheduled on October24, 2008, which means that as of that date, the earliest date to commencethe trial that Defence counsel could accommodate was November 2,2009. As a result, the Koker A trial could not be brought forward afterthe Koker B trial concluded due to Defence counsel’s unavailability.

(c) Decision on responsibility for delay382 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. Accord-ingly, in my view, the period from October 25, 2008 to February 2, 2009was 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 con-clude until June 9, 2009, Alcantara was not available for the trial ofKoker A to proceed until after June 9, 2009. Given the anticipated lengthof the trial and the imminent summer recess at the end of June, the KokerA trial could not reasonably be scheduled before September 2009.

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

385 The trial could not be scheduled between June 10, 2009 and Septem-ber 1, 2009 since the summer recess intervened. This period of time isattributable to institutional delay.

386 Due to counsels’ calenders, the first date in the fall of 2009 that thetrial could proceed was November 10, 2009. Having a trial date accept-able to all counsel’s calendars is a feature of the system under whichdefence counsel and Crown counsel provide service to their clients in anorderly fashion. It is not a question of fault; it is one of the inevitableexigencies of running a case involving experienced counsel and severalAccused, each of whom have their choice of counsel.

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

Steps in the trial process cannot be doled out in 4 month bite-sizedchunks of time to suit defence counsel’s schedule and then be treatedas part of the overall delay for the purpose of enhancing an accused’sclaim under s. 11(b).

In this case, there are three ways to regard the accommodation ofdefence counsels’ scheduling requirements. It may be treated as acase of waiver of any intervening time periods. Or it can be regardedas falling within the category of actions of the accused. Or it can beattributed to delays caused by “other reasons”. Neither of the firsttwo bolsters the defendants’ alleged breach of s. 11(b). And the thirdshould be taken into account in determining whether the delay hasbeen unreasonable.

388 In Guilbride at para. 108, the British Columbia Court of Appeal heldthat the Crown is not responsible for delay caused by defence counsel’scalendar 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 (B.C. C.A.), Chiasson J.A., who delivered the judgment of thecourt, 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 forinherent delay. I do not read the Court’s comments as doing so. Inpara. 89 the Court stated that generally delay caused by a co-accusedis neutral delay “which [does] not count against either party in the s.11(b) reasonableness assessment”. To similar effect, in Guilbride thisCourt described the time required to accommodate the schedulingconflicts of defence counsel as neutral.

In my view, the phrase “neutral delay” refers to delay that is not at-tributable to the Crown or the accused and is not systemic or inher-ent; it fits under the heading “other reasons for delay” in the Morinlist ... In my view, the judge did not err in her use of the phrase inthis case.

390 None of the parties here argued that the period of time from Septem-ber 2, 2009 to November 10, 2009 was waived by the Defence. In myview, it should be regarded as “other reasons for delay” in regard to allthree Accused.

Stage 7: November 11, 2009 (day after trial to commence) to September26, 2010 (day before commencement of delay motion)

(a) Events391 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. Al-

cantara offered to plead guilty to Count 1 in the Indictment in resolutionof the case against him.

394 Commencement of the trial was moved up to December 10, 2009. Onthat date, Alcantara filed a Notice of Intention to Re-Elect. He was thenarraigned, formally re-elected to be tried by judge alone and entered aguilty plea to Count 1 (conspiracy to traffic in cocaine) in the Indictment.The Court accepted Alcantara’s guilty plea and entered a conviction onCount 1. The Crown began its case against both accused. It made anopening statement and called evidence. The trial continued until Decem-


ber 17th and then was adjourned to January 20, 2010 due to the Courtcalendar and unavailability of the trial judge.

395 On January 20, 2010, the Defence advised the Court that on January13, 2010 it had received a letter from the Crown advising of new disclo-sure, which revealed that monitors of intercepted communications used a“put-away” function to record and store telephone calls for later reviewwhile the wire authorization required live monitoring of calls.

396 On January 25, 2010, one witness was called by the Crown. As aresult of the late disclosure, the Defence asked for time to analyze theirpositions.

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

398 The order of disclosure in this prosecution is set out in the Flavinaffidavit. Disclosure proceeded from November 24, 2006 through to pro-vision of the hard drive containing comprehensive (full) disclosure toCaines and Knapczyk on June 1, 2007 and to Alcantara on August 27,2007. It continued through 2008 and 2009. The trial commenced on No-vember 10, 2009. As stated, on January 13, 2010, the Accused were noti-fied about the Special I put-away issue. The disclosure letter read:

The issue in question is that some calls that were required by theterms of the authorization to be live-monitored were not continuouslylistened to by the monitor throughout the call. Rather, the monitorinitially listened to the call, but sometime after confirmation wasmade that the target was a speaker, the monitor stopped listening tothe call; however, the call continued to be recorded and was ulti-mately listened to in its duration at a later time. This was accomp-lished by the monitor pressing the system’s “put away” button. Callswhere this occurred will be referred to in this letter as “set asidecalls”.

At our request, the RCMP conducted an audit of all the calls inter-cepted in the Project Koker investigation that were subject to the livemonitoring requirement. Pursuant to the request, the RCMP gener-ated a “Session History Report” for each of the lines that were sub-ject to the livemonitoring provision .... The reports are organized by


phone line and include all the calls intercepted where the monitorstopped listening to the call before the telephone call ended.

. . .

I have enclosed, as disclosure, a disk containing the Session HistoryReports referred to above.

. . .

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

1. While we acknowledge that this “set aside” approach hasbeen called into question in litigation in Ontario, we do notaccept that it is contrary to the terms of the authorization....

2. Even assuming for argument that this set aside approach wascontrary to the relevant wiretap orders under which this in-vestigation was carried out, and even making the worst possi-ble assumption about the bona fides of the police, we do notbelieve that the Issue has any realistic potential to result in theexclusion of evidence ...

399 A session history report is a log of all activity occurring on a particu-lar session and any subsequent activity. It can be generated into a reportby running a program on the CenCIS II system and requesting such areport.

400 Alcantara’s application to vacate his guilty plea was dealt with be-tween September 1, 2010 and September 24, 2010, when I rendered mydecision on that application (2010 ABQB 616 (Alta. Q.B.)).

(b) Arguments of the Parties401 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 com-menced, is a period of Crown delay that should be given even greaterweight in the overall assessment of reasonableness.

402 The Crown submits that the 84 days from November 2, 2009 to Janu-ary 25, 2010 are attributable to inherent time requirements of the case aswhat occurred during that time period were trial events.

403 The Crown suggests that the time period from January 25, 2010 toSeptember 1, 2010 is rightly attributed to it, although it contends the Ap-plicants should share responsibility for the delay. It concedes the disclo-sure should have been completed prior to November 2, 2009. It main-


tains that some of the further disclosure requested in relation to use of theput-away feature is of questionable relevance.

404 The Crown notes the Defence is required to exercise due diligence inseeking disclosure. It asserts Defence counsel ought to have known theCrown inadvertently failed to disclose information relating to whetherthe intercepted private communications were live monitored and were re-quired to notify the Crown of the missed disclosure. It maintains thisshared responsibility for the late disclosure significantly mitigates andreduces the weight attributable to the delay.

(c) Chronology of use of put away feature of CenCIS I and II equipment atSpecial I, K Division, RCMP, Edmonton

2003 - 2008405 Putting away live monitor calls due to a shortage of manpower had

been a practice prior to Project Koker, as indicated by Ms. Millar, whosupervised 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 toJune 2008 used the put away feature as a regular tool to deal with staffshortages. Ms. Morrison, now senior electronic technical support personwith Special I in Edmonton, confirmed that the put away feature wasavailable commencing in 2003 with version 3.2 of CenCIS II (at presentthey are using version 3.8). During the Koker investigation, Special Iwent from version 3.2 to 3.4 of CenCIS II.

January 5, 2005406 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’ atarget call, please go in and check periodically to ensure that it is still ourtarget on the line. If time permits, please listen to the live call periodi-cally.” According to Ms. Hering, an intelligence monitor, the use of theput away feature became a topic of discussion in Special I, Edmontonafter that memo.

January 28, 2005407 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 listenlive to all calls due to the volume.

April 2008408 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 amonitor having put away calls without first ensuring the named targetwas on the line. Within Special I, there were differences of opinion withrespect to whether use of the put away function constituted adherence tothe authorization.

June 3 and 4, 2008409 At the annual meeting of RCMP and other intelligence professionals

from across Canada, called the POWPM, Sergeant Rodrigue advised theSpecial I personnel to read their court orders and ensure they could usethe put away function and, if unsure, to talk with their affiant or Crowncounsel. Sergeant Gosselin and Ms. Millar, the monitor supervisor, at-tended the meeting from Edmonton. They were advised to stop using thefunction on live monitored calls, a change in policy that was imple-mented immediately. Ms. Millar’s normal practice was to return and de-brief the staff on practices that were to be adopted. Monitors were toldthere was some legal concern about whether use of the put away featurewas in compliance with wiretap authorizations.

June 19, 2008410 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 alist of outstanding projects affected by the use of the put away feature;whether monitors had put away calls without ensuring the targets wereon the line; and whether any of those projects were before the courts thenor would be in the near future.

June 27, 2008411 Sergeant Rodrigue sent an e-mail to NCOs and intercept monitor su-

pervisors across Canada and management, requesting that intercept mon-itor supervisors and project room coordinators review their judicial orderand “...adhere precisely to the live monitoring clauses ordered....” If therewere any doubts about how to handle the live monitoring clauses, they


should “...immediately contact their affiant or Crown assigned to thecase.” The e-mail also directed that the affiant or Crown be made awareif they were still using the put away call functionality. This was for-warded to Ms. Hering and other intelligence monitors in the Edmontonoffice.

July 3, 2008412 Sergeant Rodrigue received a reply from Ms. Millar through Sergeant

Gosselin: “We have put away calls on every file with live lines since wegot VB [voice box] in 2003.” It continued: “The following are the casescurrently ‘active’ (i.e. in disclosure, awaiting court) that could be af-fected:...E7..., Koker - Edmonton Drugs.”

413 Sergeant Rodrigue sent a further e-mail to Sergeant Gosselin askingwhether 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 thatDepartment of Justice would be involved. She could not recall if she wasadvised by Sergeant Gosselin whether he had discussions about this withthe Crown.

November 3, 2008414 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 moni-toring clauses. Also, in November, Ms. Morrison in technical support be-came aware of the put away issue.

November 16, 2008415 Sergeant Rodrigue sent an e-mail to Special I NCOS, officers in com-

mand and RCMP members who were wireroom supervisors requestingthat intercept monitors review their specific judicial orders and adhereprecisely to live monitoring clauses. She wrote: “If you have any doubtson 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’ functionalityworks.”

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


417 Sergeant Rodrigue sent e-mail on November 16, 2008 to others, in-cluding Sergeant Gosselin, stating that unless specifically authorized bythe judge to continue recording a named person on a live monitoring linewhen they were not listening to the call, the put away function was not tobe used.

January 2009418 Ms. Morrison believes she tested the system for a dual monitor capa-

bility at this time, as her records indicate they had a case involving livemonitor conditions.

January 5, 2010419 Assistant Commissioner Doug Lang issued an order to all the inter-

cept monitor supervisors (and possibly NCOs) not to use the put awayfunction. Current RCMP policy is that the authorization must permit therecording of live conversation without listening.

Later in 2010420 At some point in 2010, in the months leading up to Sergeant Gos-

selin’s retirement, Special I, Edmonton started reviewing all past cases tosee if the put away feature had been used on live monitored calls.

(d) When use of the put away feature should have been disclosed421 From 2003 through 2008, the put away function was used at Special I

in Edmonton to park calls and record them, even though the authoriza-tion called for live monitoring. The Blair memo of 2005 asked that themonitors check periodically to ensure the target was on the line.

422 In April 2008, Sergeant Rodrigue of the Policy Center for Intercep-tion of Communications became aware of legal concerns arising in anOntario case from use of the put away feature in the face of a live moni-tor clause in the wire authorization. She looked into the problem andraised it at the national conference, the POWPM, in June 2008, whereintelligence personnel discussed it and resolved that the put away featureshould not be used. Sergeant Rodrigue sent e-mails across the country inJune, July and November of 2008 emphasizing that authorizations bestrictly observed and advising that the affiant or Crown be called if therewas doubt respecting the live monitor clause.

423 Sergeant Gosselin, Ms. Millar (the monitor supervisor) and themonitors 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 itsuse would not be in compliance with live monitor clauses in wire autho-rizations. On July 3, 2008, Ms. Millar responded to the Rodrigue inquir-ies, stating: “The following are the cases currently ‘active’ (i.e. in disclo-sure, awaiting court) that could be affected:...E7..., Koker-EdmontonDrugs.”

424 I conclude that Edmonton Special I RCMP members knew about useof the put away feature in Koker A at least by July 3, 2008. Allowing areasonable time for the RCMP to consult with the Crown and for theCrown to respond, I find that this information should have been disclosedto 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. De-fence counsel were notified on January 13, 2010.

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

In addition to the content and the timing of disclosure, there is alsothe question of who is required to disclose relevant information to thedefence. Although the duty is often attributed to the Crown only, theSupreme 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 per-taining to the investigation of an accused.” This duty arises from theunique role of the police in investigating crime. Especially pertinentto this case is the principle from McNeil that the Crown may not hidebehind the fact that the police failed to disclose information to theCrown. As the majority in McNeil held at para. 24:

It is now widely acknowledged that the Crown cannot ex-plain a failure to disclose relevant material on the basisthat the investigating police force failed to disclose it tothe Crown.


(e) The due diligence argument: the Applicants’ responsibility for latedisclosure

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 andthree weeks) is rightly attributed to it, although it contends the Appli-cants should share responsibility for the delay. The Crown argument isthat Defence was aware the authorizations affecting Caines containedlive monitor provisions, and had counsel exercised due diligence theywould have requested data showing whether the lines had been livemonitored.

428 The Crown contends that the Defence was aware from the case law,including R. v. Thompson (1990), 2 S.C.R. 1111 (S.C.C.), that failure toobserve monitor conditions in a wire authorization may amount to aCharter breach and lead to exclusion of the evidence. In Project Koker,authorization 1709 contained live monitor conditions. Ensuring compli-ance with wire authorization conditions is a key to making full answerand defense. To test compliance, there must be live monitor data, andcounsel ought to have known to request it. The Installation Reports wereprovided in disclosure by Ms. Morrison, containing information regard-ing configuration of lines. The Intercept Monitoring Instructions refer tolive monitoring. In the Crown’s view, this information, cumulatively,should have triggered the request for the data. There should have been aninquiry by the Defence into the reasonableness of the search that wasconducted. In short, the Crown argues that this is a situation where allparties missed the disclosure.

429 The Defence disputes that it failed to exercise due diligence. It en-tered a list of 18 Defence counsel who have been involved in the KokerA, B, and C prosecutions, including some of the most senior defencecounsel in Alberta, and many of whom are experienced in defending ac-cused persons in drug prosecutions involving wiretaps. Ms. Flavin con-firmed that no Defence counsel sought disclosure of the session historyreports or other data that would demonstrate observance of live monitorconditions in wire authorizations. Indeed, Crown counsel in this case didnot seek disclosure of the session history reports, although he too is wellseasoned in these matters.

430 In January 2010, Ms. Morrison, the senior technical support person inSpecial I, provided session history reports for disclosure to counsel onKoker A. Up until that time, her understanding had been that such reportswere intended as a technical aid, an internal verification of data, rather


than being a disclosure issue. It appears that she (and Special I) did notmake the connection between live monitor conditions and the disclose-able nature of data tracking the implementation of such conditions. Shecould not recall having had a conversation with anyone involved in Pro-ject Koker between 2005 and 2009 advising that the CenSIS II systemcould produce session history reports.

431 Clearly, the Defence must be an active participant in the disclosureprocess and must exercise due diligence in performing that role. As CoryJ. stated in R. v. McQuaid, [1998] 1 S.C.R. 244 (S.C.C.) at para. 37:“[w]hen counsel becomes or ought to become aware, from other relevantmaterial produced by the Crown, of a failure to disclose further material,counsel must not remain passive. Rather, they must diligently pursue dis-closure diligently.”

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

In my view, however, whether or not counsel knew or ought to haveknown to request particular disclosure must be decided on the basisof counsel’s knowledge as proven by the Crown and not simply onthe basis that defence counsel is experienced in wiretap cases.

. . .

The Dixon case refers to circumstances where counsel becomesaware or ought to become aware “from other relevant material pro-duced by the Crown” or “on the basis of other disclosures” that theCrown has failed to disclose further material. In those circumstances,counsel is obliged to diligently pursue that disclosure. I will assumefor the purposes of this application, without deciding the issue, thatthe Dixon principle also extends to knowledge that the defence hasacquired other than from the disclosure already provided in the casebefore the court or from his knowledge of that case.

433 The Crown established in that voir dire that in October of 2006, coun-sel for Mr. Alcantara, in his role as defence counsel in Project Imminent,received disclosure of session history reports identifying live monitoringdata. However, I found (at para. 38) that those session history reports didnot 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 havehad knowledge of the put away feature. I concluded (at para. 39) that ithad not been proved that counsel for Mr. Alcantara ought to have knownthat he should request disclosure of the session history reports in the con-text of this case. In fact, I noted that it had not been established that anycounsel in this case was aware of the use of the “put away” function untilthe 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 PPSCdoes not allege that it ever provided session history reports to Mr. Lazinon 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 duediligence because they did not request data which would show whetheror not the live monitor clauses had been observed.

436 First, as noted above, there was a large amount of disclosure in thiscase.

437 Second, while the question of compliance with wire authorizationshas been in play since the Thompson case was decided in 1990, there isno evidence that the narrow refined technical function of putting awaycalls was known to anyone other than Special I personnel until the issuearose in a court case in Ontario in April of 2008. It was more than a yearand one half later that the Crown assigned to Koker A became aware ofthe use of the functionality.

438 Third, I find that Ms. Morrison, as a technical support person, did notperceive the link between live monitor conditions and the session historyreports that track implementation of those conditions. As a result, thedata reports were not viewed as documents required to be disclosed bySpecial I. Crown counsel did not seek data (session history reports) con-firming there was compliance with the live monitor conditions. Neitherdid any of the experienced counsel who have appeared over time repre-senting the accused in the three Koker prosecutions.

439 I cannot find lack of due diligence on the part of Defence counsel infailing to request data to confirm live monitoring occurred, since there isno evidence that they were aware of the put way feature or that sessionhistory reports might reveal use of this feature.

(f) Decision on Stage 7440 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 Spe-


cial I Edmonton became aware of the issue and had an opportunity toconsult with PPSC in Edmonton about it.

441 I infer from the fact that Caines sought to vacate his guilty plea andrejoin this trial, Alcantara applied to vacate his guilty plea, and the Ap-plicants all renewed their various Charter notices once disclosure wasmade of use of the put away feature in Koker A, that had such disclosurebeen made in a timely fashion, Caines would not have entered the guiltyplea on two counts in the Indictment, Alcantara and Knapczyk would nothave abandoned their Charter applications, Alcantara would not have re-elected to be tried by judge alone and he would not have entered a guiltyplea to Count 1in the Indictment. (Indeed, I ruled previously in the deci-sion permitting Alcantara to withdraw his guilty plea that these stepswould not have been taken in the first place.) Contrary to the Crown’sview that these were “trial” activities and that the time from November11, 2009 to December 10, 2009 should be counted as a period of inherentdelay, I am of the view that this period of delay is attributable to theCrown.

442 The trial commenced on December 10, 2009 and continued throughto December 17, 2009. One witness also testified on January 25, 2010.While it is possible that the witnesses whose testimony was heard, orsome of them, may have to be recalled in order to allow crossexamina-tion 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 Decem-ber 11, 2009 to December 17, 2009 was one of inherent delay.

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

444 On January 20, 2010, the Court was advised of the late disclosure ofthe use of the put away feature. On January 25th, the Defence asked fortime to consider its position. Over the next five months, the Applicantsbrought a series of consequential disclosure applications that werelargely successful (although some were unopposed by the Crown in theinterest of efficiency). While the time taken by those applications can beconsidered inherent delay, if the Defence had received timely disclosurefrom the Crown of use of the put away feature, those applications likelywould have been made from September 2008 through to the end of Janu-ary 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 additionaldisclosure would have been brought in the ordinary course in criminalmotions court.

445 The application to vacate Alcantara’s guilty plea commenced Sep-tember 1, 2010 and resulted in a decision on September 24th (2010ABQB 616 (Alta. Q.B.)).

446 An issue about Mr. Juneja facing investigation by the Law Society ofAlberta arose on September 14th. Mr. Juneja was granted permission bythe Law Society of Alberta to continue to represent Knapczyk to the con-clusion of the delay motion. I affirmed that conclusion by a decision filedSeptember 24, 2010 (2010 ABQB 612 (Alta. Q.B.)). Having received in-dependent legal advice, it was Mr. Knapczyk’s wish to have Mr. Junejacontinue 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-counselwhere appropriate, and otherwise presenting evidence and arguments assuited his client’s interests. Mr. Knapczyk absented himself from the pro-ceedings 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 over-riding cause of delay up to September 24th was Alcantara’s application tovacate his guilty plea, which in turn was attributable to the Crown.

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

Stage 8: September 27, 2010 (commencement of delay motion) to June16, 2011 (anticipated end of trial)

(a) Events449 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 (Mo-tion #4); a Charter search and seizure motion (Motion #5) and a Charterabuse of process motion (Motion #6).

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


(b) Arguments of the Parties452 The Crown argues that the time period from September 28, 2010 to

April 11, 2011 (anticipated start of trial) should be attributed to the ac-tions of the Applicants. That time period has been set aside to conduct anumber of pre-trial motions brought by them. The Crown asserts theseare actions of the Applicants and should weigh against them, citing Mo-rin at paras. 44- 45.

453 The Crown concedes the eight day period from January 5, 2011 toJanuary 13, 2011 is properly attributed to it as the prosecutor was notavailable 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 inherenttime requirements of the case.

(c) Decision on Stage 8455 The pre-trial motions originally were scheduled to commence No-

vember 2, 2009 and to continue for four months. Instead, they began onSeptember 27, 2010 and are set to continue until at least March 31, 2011.These are voluntary actions of the Applicants and, according to Morin atparas. 44-45, must be weighed against them. In Conway, L’Heureux-Dube J. stated for the majority at para. 45 that in an assessment of rea-sonableness under 11(b) of the Charter, the Crown and the accused mustbear the consequences of any tactical decisions which they have made inthe conduct of the trial.

456 I regard the period from April 1, 2011 to April 10, 2011, when allcounsel will be preparing for trial, to be part of the inherent time require-ments of the matter, as is the period from April 11, 2011 to June 16, 2011for conduct of the trial itself.

D. Prejudice to the Applicants457 The Crown acknowledges that based on the overall length of the de-

lay, the Court could infer prejudice to all of the Applicants. However, itasserts that minimal prejudice resulted from the delay caused by the latedisclosure.

458 Each of the Applicants provided affidavit evidence as to the prejudicethey allege was caused by the delay of these proceedings.


1. Mark Jeffery Caines

(a) Evidence and arguments of Caines459 Caines swore an affidavit on September 13, 2010 and a supplemen-

tary affidavit on November 22, 2010. Caines was born in Corner Brook,Newfoundland on June 24, 1973. According to his earlier affidavit, heused to have a perfect life. From 2001 on, he was in a common law mar-riage with his best friend and they co-parented a child for the first threeand one-half years of her life.

460 Caines turned himself in to the police on December 5, 2006. Exceptfor a period of about three weeks, he has been in custody at the ERC orDrumheller Correctional Facility since that time.

461 Caines described his introduction to life in the ERC as traumatic. Hewas confined on arrest in close, crowded quarters where there was bloodand vomit, there was tension, isolation and fear. He was strip-searchedand placed on the “gang unit” with a member of the Warriors, a nativegang, whose rules Caines agreed to follow. The first night, he began todoubt his own sanity. The next morning, he witnessed a violent assault inthe food line and was splattered with blood, although the guards did notintervene.

462 Caines deposed that, while living on this unit, he was locked up for23 hours a day and allowed out only four times a day, for 15 minuteseach time, to use the shower or phone. He could only read, although itwas difficult to concentrate. Open visits with his wife and daughter werenot permitted.

463 Caines attested to the impact on his health: he could not exercise; hegained 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 onthe unit were unlocked by mistake. The prisoners left their cells, coveredwith blankets and sheets, and a riot ensued, resulting in damage to fix-tures, fire, and violence to the extent that one prisoner may have diedfrom these events. The riot was quelled by the guards in full riot gearusing tear gas. He was semi-conscious after the tear gas was sprayed andcontends that he was violently assaulted to a state of unconsciousness bya riot guard, although he had remained in his cell and had not been aparticipant in the riot as he was in fear of the Native gangs.

465 Caines deposed that he awoke in a holding cell amidst blood andvomit, was tied with his hands and feet shackled behind him for 24


hours, while in excruciating pain with no medical assistance. The rem-nants of the scent of tear gas remained in his cell and there was no cleanbedding or clothing provided. Life in the ERC became intolerable afterthe riot: residue from the fire and the pepper spray on the unit causedphysical discomfort, hand sets from the phones were not replaced forfour weeks, and televisions were smashed. His depression deepened. Hislife on the outside was disintegrating and his wife was destitute.

466 Caines deposed that about four months after incarceration, he wit-nessed three gang members stabbing an inmate who ran behind him forprotection, causing him to fear for his own safety, to be depressed and towithdraw from his family.

467 After he had been incarcerated for seven months, the inmates floodedthe unit with water to protest the conditions. Caines said that due to theresulting mould, he developed skin conditions and other ailments requir-ing frequent medical attention. He suffered from sleeplessness, as well asfoot and back pain because he could not get prescription footwear for hisflat feet.

468 Caines deposed that his lawyer stopped visiting him, contributing fur-ther to his depression and irrationality. He was in the ERC for a yearbefore a bail application was made on November 16, 2007. Over Crownobjections, he was granted bail on January 23, 2008. The bail conditionsrequired cash and sureties in the sum of $1,000,000.00. When the condi-tions for bail had been met, the Crown reactivated a charge that had beenstayed, and as he was being released, he was “gated.” He was released onthose other charges on January 31, 2008.

469 The order for judicial interim release was in force until it was revokedon February 22, 2008, as a result of a successful Crown review. Re-turning to the ERC, Caines says that he became further depressed andhad suicidal thoughts. He was incarcerated in another gang unit that wasworse than the first, with more fights and stabbings resulting in morelock downs, so that privileges, such as phones and showers, were some-times 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 “thehole.” There had been a fight among gang members at the EdmontonMaximum Security Institution and there was fear that this violencewould spill over to the ERC. He was taken to the segregation unit for hisown protection.


471 In September 2008, Caines was taken to Fort McMurray, where hewas tried on a charge that arose in 2001. On October 1, 2008, he wassentenced to four years in custody and transferred to Drumheller Institu-tion, where he was given the unit representative job. His parole releasedate was June 2, 2010, but he could not be paroled due to the presentcharges.

472 In about the spring of 2009, Caines’ wife left him. He deposed thathis depression continued. Once his sentence was served, he was trans-ferred back to the ERC while shackled and handcuffed, without seat beltsin the transport vehicle. On arrival, he was locked in a “dry cell” (with-out a toilet) in case he had drugs, and then returned to the gang unit. OnMarch 28, 2010, he sought bail. The Crown opposed the application andit was denied.

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

474 In his November 2010 affidavit, Caines attested to events that oc-curred around the time these issues were being canvassed in Court. Hesaid that on November 13th, two guards came to his cell and stripsearched him. He said they found nothing. He was then taken to besearched by the drug dog. After the dog handler touched Caines’ leg, thedog sat, which it does if it smells something. He deposed that he was toldthe direction from the “DDO” was that he be taken directly to a “drycell.” He was advised that contraband had been found in his cell. Heclaimed that his roommate, the leader of the Red Alert, had hidden to-bacco in a peanut butter sandwich and the roommate was going to takeresponsibility for the tobacco. Caines deposed that he was then stripsearched again but still nothing was found. It was his impression that histreatment was the result of his previously having brought to the Court’sattention what conditions he had been subjected to at the ERC. Cainesdeposed that while he was in the dry cell, he was not allowed to contacthis lawyer for about eight hours and was not allowed to go to thewashroom. According to him, it was out of desperation that he contriveda story that he had swallowed drugs, hoping that he would be sent to thehospital where he could go to the washroom. He was dry celled the nextday and not allowed to call his lawyer for hours.

475 Caines deposed that on November 18th, his cell was the subject of atargeted 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 beingheroin, although analysis produced a negative result.

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

477 Caines testified that the September affidavit represented his versionof his experience at the ERC. He agreed with Crown counsel that whilehe was sometimes locked up for 23 hours a day, at other times he waslocked up for 18 hours a day or was out of his cell for most of the daywhen working as a cleaner. The cleaner job was a reward for good beha-viour. This depended on the rotation and that, in turn, was dictated by thebehaviour of the inmates. He clarified that when he was first brought tothe ERC, he was on quite a violent unit where the prisoners were lockedup from 18 to 23 hours a day. He agreed that what he described in hisaffidavit was the worst case scenario.

478 Caines said that he lost his cleaner’s job when he was sent to FortSaskatchewan (on July 27, 2007). When he returned to the ERC (aroundNovember 5, 2007), he was placed on a different unit where there were alot of long-term inmates who occupied the cleaner job. He did a year on4B 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 bea cleaner, there was an incident on the unit which led to a lockdown. Hewas moved to segregation for a couple of months for threatening to “shitbomb” the staff on 4B. He was charged and convicted of that on appeal.He explained that the charge arose after the lockdown when the guardswere controlling the toilets and would not allow the prisoners on the unitto flush them for two days.

480 The Crown suggested to Caines that the impression he was trying toconvey in his affidavits was that he was scared and intimidated while inthe ERC. Caines said that indeed he was afraid and intimidated. How-ever, he admitted in cross-examination that he was never pushed around


by any Alberta Warrior members and that he often was a cleaner and notlocked up.

481 Caines agreed that he had more freedom for the four to five months in2007 when he was at Fort Saskatchewan. His file indicated he was re-turned to the ERC as staff at Fort Saskatchewan felt he seemed to thinkhe 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 yearold age range while he was closer to 40, the unit representative, and hejust tried to do his best.

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

483 Caines acknowledged that he attempted in his affidavits to portrayhimself as an inmate who did not cause disturbances or difficulties withother inmates or with the guards. He said he was a fairly well-behavedinmate most of the time, but agreed to having to be reminded on occasionto wear his coveralls rather than sweatpants and a t-shirt; to having beenin a verbal altercation with another inmate; to having been convicted offailing to give a required urine sample because the request was made at7:00 a.m.; and to being rude to a guards on occasion as well. He admittedto having marijuana in his system on one occasion when he was askedfor a urine sample. In addition, he agreed that the drug dog signaled thatthere was a drug on his desk on November 18, 2010 and a quick “nictest” indicated it was heroine, although it proved not to be.

484 Christopher Ryan Flamant is a serving prisoner at the Drumheller In-stitution. Flamant was at the ERC on Unit 4C where he shared a cell withCaines as a cleaner. He described the unit as violent, stressful, tense, andscary at times; a place where he witnessed about three fights a week andsaw homemade weapons on two occasions. At that time, Unit 4C in-cluded inmates belonging to three groups: the White Aryan Resistance(WAR); the Red Alert; and the Warriors. These groups were unfriendlytowards each other so that the members were kept separate when out onrotation.

485 Flamant was living with Caines when the door mechanisms failed andthe riot ensued. Inmates covered their heads with shirts, saran wrap, pil-low 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 walkingaround with two pipes in his hands, either because of fear or aggression.


Items such as garbage cans were flying around the unit. The observationwindows to the guards’ station were obscured by newspapers.

486 According to Flamant, Mr. Caines was not masked but rather wasasking people to lock up, although they did not listen. What he believedto be tear gas was unbearable, hard on the eyes, hard for breathing. Fla-mant stuffed blankets under the cell doors and over his head to preventthe gas from entering his mouth and eyes. The inmates flushed the toiletsto bring fresh air into the cell. Eventually, the guards in swat uniformsand riot gear quelled the riot. The inmates were removed to a dry cell, aconcrete empty cell, where they remained for 24 hours. According toFlamant, Caines was in his cell or watching from the walkway, and as faras he remembered, Caines did not go downstairs.

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

488 Leonard Goueffic has been the Director in charge of Programs andServices at the ERC since March 2009, after a lengthy career at the FortSaskatchewan Correctional Center. He gave extensive evidence about thephysical layout at the ERC and the routines in place.

489 Mr. Goueffic’s evidence about Units 4A-D did not materially differfrom that of the inmates, except that he tended to report less time whereinmates are confined to cells. He said that inmates of the same gangstripe 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 atop/bottom rotation so that one half of each unit is out of their cell at anygiven time. A top/bottom rotation means a twelve-cell rotation or 24 in-mates out at one time (rotation of the top tier, then bottom tier, and soon). A six-cell rotation means at least 12 inmates out at one time.

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


492 Mr. Goeuffic acknowledged that there are more serious fights andmore weapons on the 4th floor, and more assaults by weapon on the 4th

floor. Unit 6D is for administrative segregation, and sometimes over-flows to Unit 5D. Inmates are placed on administrative segregation fortheir own protection or because of deteriorating behaviour or whileawaiting hearing of disciplinary charges. Unit 5D is disciplinary segrega-tion, “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 inthe riot that occurred on Unit 4C. The airborne irritant distributed duringthe 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 securityunits. For long term remand inmates like Caines, there is little suitableprogramming, except for some specialized programs pertaining to addic-tions, domestic violence, and some distance learning facilitated throughNorquest College, although course work is not easy in such small livingquarters.

495 Mr. Goeuffic confirmed that Caines was “dry celled” on three occa-sions when transferred from Drumheller to ERC for this trial, but no con-traband was found. Dry celling is a process of placing inmates in isola-tion for three bowel movements or three days if they are thought to be“packing” drugs. He had not seen any history from any source indicatingthat Caines had been in possession of any narcotics while in an institu-tion, although there was an instance of refusing to provide a urinesample.

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

(b) Arguments of the Crown497 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 hasaffected his liberty interest. He is currently denied judicial interim re-lease in the Koker A prosecution and has been throughout the proceed-ings other than for a three week period in 2008. However, the Crownnotes that Caines was a serving prisoner between October 1, 2008 andJune 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 fouryear sentence. Therefore, the Crown argues the applicable prejudice toCaines arises from the fact he will be required to experience an extraseven and one-half months of pre-trial custody due to the delay causedby the late disclosure.

498 The Crown argues the disclosure delay will have only a minimal ef-fect on Caines’ security interest. It notes his main complaints are associ-ated with his incarceration prior to June 2, 2010. Also, a majority of hispast incarceration is attributable to his sentence in unrelated proceedings.The Crown asserts that Caines has not suffered any prejudice in terms oftrial fairness due to the late disclosure. His guilty plea has been vacatedand he has been returned to the same position he was in prior to thedelay.

(c) Decision on prejudice to Caines499 The chronology of Caines’ incarceration is:

December 5, Date Caines turned himself in to the police2006 and was arrested.December 7, Judicial interim release granted ($61,250.002007 cash, $1,000,000.00 in securities).January 31, Released from custody.2008February 22, Judicial interim release vacated after a2008 Court of Queen’s Bench review of the

grounds of his original release.October 1, Sentenced on other matters (served at the2008 Drumheller Institution, except for Court ap-

pearances when he was transported to theERC).

May 31, 2010 Released on parole to ERC.June 16, 2011 End of trial.Total Time in From and including December 5, 2006, toCustody: and including January 31, 2008.

From and including February 22, 2008, toand including June 16, 2011.


= 1632 days in custody (including time asserving prisoner of 608 days: from and in-cluding October 1, 2008 to and includingMay 31, 2010).

500 Caines has suffered significant prejudice. He has established that con-ditions at the ERC are egregious. The harsh conditions in which remandinmates find themselves there have been the subject of previous observa-tions by this Court. Although Caines may have exaggerated as to someaspects of his experience, certain conclusions may be drawn from hisevidence and that of others who testified on this point. He has been incar-cerated on units on the 4th floor with inmates believed to belong to atleast three different gangs. He has witnessed, and personally experiencedviolence, a riot, a flood on the unit, as well as crowding (sometimes in-mates are housed three to a cell with a mattress on the floor), tension,stabbings and assaults. He has suffered physical deterioration, weightgain, sore back, neck and feet, and deep depression. He has lost his mar-riage and been estranged from his young daughter. He has been incarcer-ated in his cell between 18 and 23 hours a day and has spent time insegregation.

501 While not a model prisoner, it is also true that it would be difficult tobe a model prisoner in the conditions that are described. On the otherhand, he has qualified to be a cleaner for periods of time and so has hadprivileges 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 re-lease is attributable to the charges that he faces and his personal circum-stances, his liberty and security interests have been harmed by the delayin that ever longer time has and will be spent in these circumstances.

502 Caines’ fair trial interests also have been affected by the delay occa-sioned by late disclosure in that the entire trajectory of the trial was al-tered, 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 Alcantara503 Presently, Alcantara is residing at the Drumheller Institution where he

is serving a sentence of eight years 10 months imprisonments imposedby Sulyma J. on his conviction in the Koker B prosecution.


504 Alcantara was born on October 2, 1972. He was 34 years of age whenarrested on November 26, 2006 and is now 38 years of age. His father isdeceased and his mother remarried. His mother and step-father have relo-cated to the Philippines. Alcantara also has a 29-year-old brother wholives and works in Edmonton.

505 Alcantara completed high school in Edmonton as well as a real estatecourse and one and one half years towards a management studies pro-gram at Grant McEwan College. He has been married since 2005 and hastwo sons, aged 11 and 4 years, but has not been able to participate inraising them.

506 Alcantara was incarcerated at the ERC from November 26, 2006 toSeptember 9, 2008 and from March 3 to December 4, 2009, when he wassentenced in the Koker B matter. He deposed that he experienced periodsof depression and anxiety associated with the uncertainty of the outcomeof the Koker A and Koker B cases. He attested that he has been in thejudicial system for about four years and has had four show cause hear-ings, one bail revocation application, three bail review applications, onebail forfeiture application, two preliminary inquiries that took about sixmonths 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 factorin terms of prejudice to his liberty interest. He notes that courts have longrecognized that remand prisoners spend their time in detention centreswhich are ill-suited to lengthy incarceration due to overcrowding, limitededucational programs and limited access to recreational facilities.

508 The only time when he was incarcerated on the Koker A matter whenhe would not otherwise have been incarcerated on Koker B was fromJune 13, 2008, when he was granted judicial interim release by MalinP.C.J. in Koker B [but did not enter into the recognizance at the time ashe had been denied release in Koker A] until September 9, 2008, after hewas granted judicial interim release in Koker A by Philp P.C.J. on Sep-tember 5th and had entered into the recognizances regarding both bailorders.

509 Alcantara points out that the orders for his judicial interim releasecontained a number of restrictive conditions, including 24-hour house ar-rest with a knock and respond clause and geographical mobility limita-tion. On December 9, 2008, the conditions of release were varied bySanderman J., allowing Alcantara to have limited contact with a co-ac-cused, 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 doesnot end where there is a breach of conditions in a situation such as herewhere the breach allegations did not involve the commission of a crimi-nal offence (R. v. Williams, 2010 BCPC 122 (B.C. Prov. Ct.) at para. 24).

511 Although proof of actual prejudice to the right to make full answerand defence is not required, Alcantara contends that it is significant thatlate disclosure of the put-away feature impaired the ability of the De-fence to properly assess the case to meet. Based on disclosure up to De-cember 10, 2009, he made the decision to abandon his Charter applica-tion for exclusion of evidence based on a breach of ss. 7 and 8 andentered a plea of guilty to conspiracy. He submits that it was necessary toreassess his position in light of the new disclosure.

(b) Arguments of the Crown512 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 in-volvement in the criminal proceedings, not the delay.

513 The Crown asserts that the delay caused by late disclosure was be-tween January 20, 2010 and September 10, 2010, while Alcantara’s pre-trial custody on Koker A was served between November 26, 2006 andDecember 4, 2009, when he was sentenced to 14 years imprisonment onKoker B. Further, Alcantara was given credit for the entire period of hispre-trial custody since his arrest on November 26, 2006 against his 14year sentence, reducing it to eight years and ten months. The Crown con-tends this indicates the pre-trial custody was associated to the Koker Bcharges and not Koker A. As a result, there is no nexus between theprejudice to his liberty interest experienced from his pre-trial custody andthe delay caused by late disclosure.

514 Also, the Crown maintains that any prejudice Alcantara experienceddue to restrictive bail conditions is not related to the disclosure delay butrather to his involvement in the criminal proceedings. It points out thatAlcantara was on judicial interim release between September 9, 2007 andMarch 25, 2008, whereas the disclosure delay was between January 20,2010 and September 10, 2010. The Crown asserts that, in any event, theconditions were not excessive given the circumstances. His house arrestconditions contained several exceptions permitting him to leave his resi-


dence for employment, health appointments, medical emergencies, relig-ious services and any other purpose authorized by his bail supervisor. Hecould also leave the Edmonton area for employment purposes withpermission.

515 The Crown takes the position that the disclosure delay would haveonly a minimal effect on Alcantara’s security interest. Only the extendedperiod, if any, of depression or anxiety he experienced during the disclo-sure delay period would be of concern. Even that should be minimal ashe has been facing two criminal prosecutions since November 26, 2006and the eight months of delay is a relatively short period in comparison.

516 The Crown submits that Mr. Alcantara’s fair trial interests have notbeen prejudiced as a result of the disclosure delay. He had been allowedto vacate his guilty plea and is now back in the same position as he wasin before pleading guilty.

(c) Decision on prejudice to Alcantara517 The chronology of Alcantara’s incarceration is:

November 26, Date of arrest.2006June 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 housearrest with a knock-and-respond clause).

September 5, Judicial interim release granted in Koker A2008 ($50,000.00 cash, 24-hour house arrest with

a knock-and-respond clause, a geographicalmobility limitation, and mandatory reportingto ERC 96 hours before any trial or summa-ry disposition).

September 9, Released from custody.2008March 3, 2009 Alcantara arrested, on breach of recogni-

zance charges.March 23, Bail on Koker A revoked.2009September 15, Convicted in Koker B proceedings.2009


December 4, Sentenced by Sulyma J. (14 years in prison2009 less time served of five years and two

months, for a total of eight years and tenmonths).

December 4, Serving prisoner (in Drumheller Institution)2009 to end of and on remand on present charges.trial:June 16, 2011 End of trial.Total time in From and including November 26, 2006, tocustody: and including September 9, 2008.

From and including March 3, 2009 to andincluding June 16, 2011.= 1470 days in custody (including time asserving prisoner of 560 days: from and in-cluding December 4, 2009, to and includingJune 16, 2011).* Alcantara was denied bail in Koker A andB. A portion of his pre-trial custody onKoker A (November 26, 2005 to December4, 2009) encompassed the same time periodhe received pretrial custody credit for onKoker B.

518 Alcantara has suffered prejudice. His security interests have been af-fected by the delay in that he is facing on-going stress or damage to repu-tation occasioned by lengthy exposure to unresolved criminal accusa-tions. There has been a prejudicial impact on Alcantara’s liberty interestsas well. The calculation is complicated because he received credit in hissentence 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 bylate disclosure in that the entire trajectory of the trial was altered, withthe necessary reassessment and activation of pre-trial motions.

3. Alan Peter Knapczyk

(a) Evidence and arguments of Knapczyk519 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 hisarrest, with no problems of depression, anxiety or sleep loss. He says thathe was employed full time and had custody and primary residential care


of his 12 year old daughter. He describes his relationship with his familywho reside in Edmonton as extremely close and that his father is a prom-inent 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 hasbeen referred to as an alleged drug king pin, and that his name is men-tioned each time. He understands that conviction may result in a “verylengthy prison sentence”.

520 Knapczyk says that as a result of the stress and anxiety associatedwith these charges, he has experienced depression, difficulty eating, andloss of energy with the result that he has not been able to maintain hisphysical fitness that he had cultivated over ten years. He has lost 30pounds, sleeps only a few hours at a time, is nauseous, and is prescribedanti-depressants though he is opposed to use of mood altering prescrip-tion drugs.

521 Knapczyk attests that he lost his job as a result of the notoriety andnature of the charges. His work history is mechanical and labor related,requiring shift work and that he be out of town. Initially, his bail condi-tions included a curfew but in June, 2008 the terms were amended withthe result that he obtained employment with Tri-Star Underground,working up to 60 hours per week. In June of 2010, he was dismissed, andcontends that he was advised by his employer that he was fired as a resultof these charges and that customer relations might be affected.

522 He has forgone the opportunity to buy a house and enter the motorcy-cle sales and repair business because of the outstanding charges.

523 Knapczyk has attested to the fact that his 15 year old daughter nowlives with her mother and he sees her only a few times a month. Theycannot travel or take long weekends to camp due to the Monday curfew.She is in counselling because she suffers anxiety associated with thecharges as well as social exclusion. He says it is difficult to have a mean-ingful relationship with her for fear of a possible lengthy separation. In2009, his girlfriend gave birth to his second child, but they have decidedthat he will play a limited role in her life so she does not become at-tached and then separated from her father.

524 Knapczyk attests further to the public shame his father endures in thecommunity as a result of the unresolved status of the charges.

525 Knapczyk argues that his liberty interests have been affected: he wasin custody 19 days, his bail conditions have been strict with curfew,travel restricted to Alberta, and the impact on his ability to participate inhis daughter’s up-bringing. He argues that his security interests have


been affected by the exposure to criminal proceedings, the uncertainty ofhis future with the prospect of a jail sentence weighing heavily, he isprevented from forming close bonds with his daughter, and he is livingday to day. He argues that his physical and emotional health have beencompromised.

(b) Arguments of the Crown526 The Crown acknowledges that the Court can infer prejudice to

Knapczyk based on the overall length of delay. However, it argues thedelay will have minimal prejudicial effect on his liberty interest. Hesought and obtained judicial interim release on January 29, 2007. Theconditions of release were varied over time. By January 2010, they werenot overly onerous or excessive in the circumstances. The only curfewrequires that he be in his residence on Mondays between 10:00 p.m. andTuesday at 7:00 a.m. The only travel restriction is that he not leave Al-berta without the permission of his bail supervisor and that he turn in hispassport.

527 The Crown maintains that any prejudice resulting from the extendedperiods of anxiety due to the delay in disclosure is minimal and no ex-ceptional difficulties have been asserted.

528 The Crown takes the position that Knapczyk’s fair trial interests havenot been prejudiced as a result of the disclosure delay.

(c) Decision on prejudice to Knapczyk529 The chronology of Knapczyk’s incarceration is:

November 26, Date of arrest.2006December 15, Judicial interim release granted (remain in2006 Alberta, abstain from drugs and firearms,

surrender passport, cell phone prohibition,curfew of 10:00 p.m. to 7:00 a.m., maintaina landline at a fixed and certain address,maintain employment, carry a copy of therecognizance at all times and report to ERC18 hours prior to any preliminary hearing ortrial).


July 30, 2007 Judicial interim release varied by consent(Condition 12 amended to read that Ac-cused must abide by a curfew of 10:00 p.m.to 7:00 am., except as approved in writingby the bail supervisor. Notwithstanding any-thing in the order, the Accused need notabide by the curfew between July 26, 2007and September 7, 2007).

April 7, 2008 Judicial interim release varied by consent(Accused must report to the ERC 18 hoursprior to the preliminary inquiry, but neednot be held in custody for that time).*Granted in an April 4, 2008 consent varia-tion of release order.

December 3, Judicial interim release varied by consent2010 (Accused may be absent during curfew

hours for the purpose of employment if bailsupervisor is notified).

Total time in 20 days (From and including November 26,custody: 2006, to and including December 15, 2006).

530 Knapczyk has suffered prejudice. His security interests have been af-fected by the delay in that he is experiencing on-going stress or damageto reputation occasioned by lengthy exposure to unresolved criminal ac-cusations in relation to serious charges. The impact on Knapczyk’s lib-erty interests has been minimal because he was granted early judicial in-terim release and has been able to maintain employment and mobilitywithin the province. His fair trial interests have been affected by the de-lay occasioned by late disclosure in that the entire trajectory of the trialwas altered, with the necessary reassessment and activation of pre-trialmotions.

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 isprimarily concerned with an aspect of fundamental justice guaranteed


by s. 7 of the Charter ... It is a fundamental precept of our criminallaw that every individual is presumed to be innocent until provenguilty. 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 earliestpossible time.

533 According to Sopinka J. in Morin at paras. 26-88, the primary pur-pose of s. 11(b) is to protect the following individual rights of accusedpersons:

(1) the right to security of the person, by seeking to minimizethe anxiety, concern and stigma of exposure to criminalproceedings;

(2) the right to liberty, by seeking to minimize exposure to therestrictions on liberty which result from pre-trial incarcera-tion and restrictive bail conditions; and

(3) the right to a fair trial, by attempting to ensure that proceed-ings 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 par-allels the individual interest; and (ii) that which is adverse in interest.

535 In Morin at para. 29, Sopinka J. stated that the societal interest ismost obvious when it parallels that of the accused in the context of ss. 7and 11(b). The parallel interest is that those accused of crimes be treatedhumanely and fairly; that they be brought not to any trial but to a fairtrial. Trials held within a reasonable time have that intrinsic value. On afundamental level, a fair trial also incorporates the presumption of inno-cence referred to by Cory J. in Askov at p. 474.

536 The societal interest that is adverse to that of the accused was referredto in R. v. Conway, [1989] 1 S.C.R. 1659, 49 C.C.C. (3d) 289 (S.C.C.), at306 by L’Heureux-Dube J. as the “...important community interest ofpreventing crime through the conviction of persons guilty of a criminaloffence.” In Askov at p. 474, Cory J. spoke of it as “...a collective interestin ensuring that those who transgress the law are brought to trial anddealt with according to the law.” In Morin at para. 30, Sopinka J. charac-terized it as, “...the interests of society in law enforcement. As the seri-ousness of the offence increases so does the societal demand that the ac-cused be brought to trial.”


2. The Morin factors537 Sopinka J. in Morin at para. 32, described judicial balancing as in-

volving an examination of the length of the delay and its evaluation inlight of the following factors: waiver of time periods, reasons for the de-lay, (including inherent time requirements, actions of the accused, ac-tions of the Crown, limits on institutional resources and other reasons),and prejudice to the Accused. The degree of prejudice, or absencethereof, is an important factor in determining the length of institutionaldelay that will be tolerated (Morin at para. 64).

538 In Chan, Sulyma J. remarked as follows at paras. 4-5, 406, and 422: Madam Justice L’Heureux-Dube in Conway at para. 21 stated thatwhile some degree of impairment of an accused’s s. 11(b) right maynecessarily result from the passage of time, greater weight in theoverall assessment of reasonableness should attach to impairment re-sulting 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 delaysarising from a failure on the part of the Crown to provide disclosurethan from delays resulting from some other forms of Crown conduct.

. . .

The inherent portion of the delay relating to disclosure is the lengthof time it reasonably should have taken the Crown to provide disclo-sure in a properly conducted and prosecuted case of similarcomplexity.

539 In balancing the primary interests of the individual (liberty, security,trial fairness) with the adverse aspect of the societal interest, courts takeinto account: (1) length of the delay; (2) complexity of the case; and (3)seriousness of the charge. Societal interests increase with the seriousnessof the charge (Morin at para. 30).

540 In R. v. Kporwodu (2005), 195 C.C.C. (3d) 501 (Ont. C.A.), theCrown argued that the trial judge had failed to properly balance the Mo-rin factors and specifically, given the seriousness of the offences, hadfailed to give proper consideration to the societal interest of ensuring thatalleged offenders are brought to trial and dealt with according to law.The court responded to this argument at paras. 192-194, stating in part:

... the seriousness of the offence is not a separately enumerated factorto be considered in and of itself. There is no separate analysis of rea-sonableness in light of the seriousness of the offence. Rather, the se-


riousness of the offence must inform both the court’s considerationof each factor and the balancing exercise.

In making this statement, we wish also to respond to the suggestionthat 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, 192C.C.C. (3d) 91 (C.A.), this court treated the seriousness of the of-fence as an independent factor to be pitted against the interests of anaccused. We do not read those cases as suggesting that some type ofseparate 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 req-uisite balancing process.

... while society has a heightened interest in seeing that serious of-fences are tried, the Crown has a heightened obligation to ensure thatthe trials for such offences are held in a timely fashion.

541 In Ghavami at para. 52, the British Columbia Court of Appeal re-cently stated:

In our view, balancing makes sense only if weight is attributed to thecauses of delay. Inherent time requirements should receive little ifany weight, because they are not attributable to either the state or theaccused, and because some delay is inevitable. Actual or inferredprejudice to the accused will be accorded a certain weight, but it maybe counter-balanced by delay caused or contributed to by the deliber-ate actions of the defence. Correspondingly, if the organs of state -Crown, justice system, or judiciary - are responsible for some part ofthe delay, then the public interest will be entitled to less weight whenbalanced against the accused’s right to a timely trial, because the pro-tectors of the public interest have failed to live up to the standardexpected of them. However, institutional and judicial delays will beaccorded less weight than delays actually within the scope of theCrown’s ability to expedite proceedings, because they are not the re-sult of voluntary Crown action.

3. Arguments of the parties542 Alcantara argues that the 26 months which he considers attributable

to Crown delay should be given greater weight in the overall assessmentof reasonableness, particularly the eight month delay caused by the latedisclosure. He submits that the Court should infer that he is prejudicedby 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 fullanswer and defence under s. 7 of the Charter.

543 He submits that in balancing the Crown responsibility for the over-arching reasons for delay against society’s interests in the trial of theseserious charges, those interests are served by ensuring the minimizationof delay in such large and complex cases (Paryniuk, at para. 89). In thiscase, he argues, there has been a breach of the right to trial within areasonable time under s. 11 (b) of the Charter and that a judicial stay ofproceedings ought to be granted under s. 24(1).

544 In oral argument, Alcantara emphasized that it is clear the RCMPwere using the put away feature as early as 2003 when Ms. Miller saidthat the RCMP started using Voicebox, although it appears that the useof the feature was unknown to the Crown in this case until just prior toits disclosure to the Defence. He contends that disclosure should havebeen made before the trial commenced and the late disclosure causedimpairment to his right to make full answer and defence as is illustratedby the complete shift in approach: further disclosure motions, applicationto vacate pleas, resurrection of pre-trial motions and the problem of ex-amining evidence derived from the interceptions contrary to the wireauthorization.

545 Alcantara argues that the case law is consistent and that R. v. Mills,[1999] 3 S.C.R. 668 (S.C.C.), Conway, Askov, and Morin all hold thatthe 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 ex-cluding the period after he was sentenced for Koker B, he suggests thatthere is still a period of delay in excess of two years, being thirty one andone 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 aserving prisoner for part of the period of delay does ameliorate the im-pact of the delay on his liberty interests, the prejudice to his security andfair trial interests has continued.

546 Caines emphasizes the purposes of s. 11(b) of the Charter: the protec-tion of security, liberty and fair trial interests. He maintains that, in termsof his security interests, his anxiety and the stigma of his exposure to thecriminal justice system continued even though he was a serving prisonerduring part of the period of delay. He points to the “absolutely irrefuta-ble” proof of prejudice in the inhumane treatment he suffered at theERC, 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 hewas denied judicial interim release. He also argues that his fair trial inter-ests have been affected by the delay, including the effects of the delay inproviding significant disclosure.

547 Knapczyk argues that Crown delay must be accorded greater weight,in particular the fact that the trial originally was scheduled for November2009 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 strictbail conditions under which he has lived; his security interests by long-term exposure to criminal proceedings causing harm to his physical andmental health; and his fair trial interests that are necessarily affected bydelayed proceedings. He argues that prejudice has been established in hiscase.

549 The Crown asserts that with a qualitative balancing of the appropriateinterests, the delay in this prosecution is not unreasonable. Society has asignificant interest in ensuring that the Applicants are brought to trialgiven the serious charges they are facing.

550 The Crown argues that while the Applicants suffered some prejudiceas a result of the disclosure delay, it is minimal. It says the delay did notprejudice Alcantara’s liberty interests or compromise his right to a fairtrial. The Crown suggests that the almost eight months of delay which itconcedes 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 compro-mise his fair trial interest and there was only minimal prejudice to hisliberty and security interests. It argues the disclosure delay is just a frac-tion of the overall delay, of which 12 months is attributable to Knapczyk.

552 The Crown argues that while Caines suffered some prejudice as a re-sult of the delay, it did not compromise his fair trial interest. It suggestsonly minimal prejudice to his security interests can be inferred. It con-cedes there is greater prejudice to his liberty interests, but says it is notexcessive. It contends the disclosure delay is a fraction of the overalldelay, 12 months of which it contends is the responsibility of Caines.


4. Balancing in this case

(a) Overall period of delay553 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 sched-uled to recommence on April 11, 2011 and to conclude on June 16, 2011.Accordingly, the operative time period is about four years and 6.5months.

554 Caines argues that pre-charge delay must be considered, relying onthe following statement in Morin at para. 35:

As I have indicated, this factor requires the court to examine the pe-riod from the charge to the end of the trial. “Charge” means the dateon which an information is sworn or an indictment is preferred (seeKalanj, supra, at p. 1607). Pre-charge delay may in certain circum-stances have an influence on the over-all determination as to whetherpost-charge delay is unreasonable but of itself is not counted in deter-mining the length of the delay.

555 Alcantara argues that the events that gave rise to this prosecutionstarted on July 1, 2005 and continued to March 2006. He points out thatthe investigation concluded in February 2006, but charges were not laiduntil the following November. He argues that this period of nine monthsis important as the Crown had nine months prior to the swearing of theInformation to get their disclosure materials together. I have consideredthis pre-charge delay in the balancing.

556 I have determined, and counsel agree, that the time period betweenthe date when the Applicants were charged and the projected end of trialis sufficiently long so as to raise the issue of reasonableness.

(b) Attribution for delay557 As to attribution or responsibility for the delay, I have concluded that:

Stage 1: November 26, 2006/December 5, 2006 (arrest) to Octo-ber 31, 2007 (end of intake period): The initial intake period (inher-ent time period) ran from November 26, 2006 in terms of Alcantaraand Knapczyk and December 5, 2006 in terms of Caines through tothe end of October 2007.

Stage 2: November 1, 2007 to April 6, 2008 (day before prelimi-nary inquiry): The period of delay from November 1, 2007 to Feb-ruary 24, 2008 is attributable to reasonable institutional delay. Whilepart of the delay during that time period may also be the responsibil-


ity of Alcantara as a result of his change of counsel, I give greaterweight to the institutional delay as the preliminary inquiry could nothave proceeded prior to February 25, 2008 even if Alcantara had notretained 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, Al-cantara 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, andJuly 14, 2008, when the Applicants were committed to stand trial, ispart 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 Au-gust 22, 2008 was part of the inherent time requirements of the case.The delay from August 23, 2008 to the next arraignment date of Au-gust 29, 2008 was institutional. The period of delay from August 30,2008 to September 5, 2008 is accounted for as “other reasons fordelay” as against all the Applicants.

Stage 5: September 6, 2008 (day after adjournment request) toOctober 24, 2008 (setting of trial dates): The delay from September6, 2008 to October 24, 2008 was due to Mr. Chadi’s withdrawal ascounsel for Caines and Knapczyk and the need for those Accused toobtain new counsel before a trial date could be set. Caines andKnapczyk share responsibility for this period of delay with theCrown. In terms of Alcantara, this period of delay is attributable bothto “other reasons for delay” and Crown delay.

Stage 6: October 25, 2008 (day after trial date scheduled) to No-vember 10, 2009 (trial to commence): The time period from Octo-ber 25, 2008 to February 2, 2009 was one of institutional delay. Theperiod from February 3, 2009 to June 10, 2009 is attributable to“other reasons for delay” as against all three Accused. The delayfrom June 10, 2009 to September 1, 2009 was institutional. The timeperiod from September 2, 2009 to November 10, 2009 should be re-garded as “other reasons for delay” in regard to all three Accused.

Stage 7: November 11, 2009 (day after trial to commence) to Sep-tember 26, 2010 (day before commencement of delay motion):The time period from November 11, 2009 to December 10, 2009 wasa period of Crown delay. December 11, 2009 to December 17, 2009was 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 toSeptember 26, 2010 is the responsibility of the Crown.

Stage 8: September 27, 2010 (commencement of delay motion) toJune 16, 2011 (anticipated end of trial): The time period from Sep-tember 27, 2010 to March 31, 2011is attributable to actions of theDefence as against all three Applicants. The period from April 1,2011 to June 16, 2011 is part of the inherent time requirements of thecase.

558 Accordingly, the operative time period from date of arrest to conclu-sion 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, 2007to 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 De-cember 18, 2009 to January 20, 2010).

561 Actions of Caines and Knapczyk caused or contributed to 7.75months of delay; including the period of delay from September 6, 2008to October 24, 2008 caused by Mr. Chadi’s withdrawal as counsel (about1.75 months), responsibility for which they share with the Crown; andthe delay from September 27, 2010 to March 31, 2011consumed by pre-trial motions (6 months). Actions of Alcantara caused or contributed toabout 10 months of delay; including the delay from November 1, 2007 toFebruary 24, 2008 resulting from his change in counsel (4 months), towhich I give little weight as it occurred during a period of overridinginstitutional 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 (1.75months); 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 theface wire authorizations that require live monitoring (8.25 months). Thislatter time period is entitled to more weight because of the Crown’sStinchcombe disclosure obligations, and because the information was inthe possession of the police and its importance for outstanding prosecu-tions known for a significant period of time before disclosure was made.


563 Other reasons for delay have caused or contributed to 9.75 months ofdelay; 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 forwhich is shared by the Crown in terms of Alcantara; February 3, 2009 toJune 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 preciselyto the number for the total period of delay.

(c) Prejudice565 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 ev-idence shows that the security interests of Caines, Alcantara, andKnapczyk have been infringed in that the heavy weight of facing crimi-nal prosecution has been borne by them over a protracted period of time,causing harm to their emotional, physical and mental well-being. Thelength of the delay has exacerbated this harm beyond what would be suf-fered as a consequence of the charges themselves. I also take into consid-eration that when an accused is in custody, less institutional or Crowndelay is acceptable. The prejudice suffered by Caines, incarcerated formonths under oppressive conditions at the ERC, awaiting trial and pre-sumed innocent, is significantly greater than that of Knapczyk, who hasbeen on judicial interim release, and Alcantara, who is a serving prisonerand will be so until trial concludes.

(d) Complexity566 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 subjectof independent charges. Alcantara and Knapczyk face a charge of con-spiracy and trafficking in relation to a criminal organization. Cainesfaces numerous other charges, most serious of which is being one of thepersons constituting a criminal organization. The police obtained five au-thorizations to intercept private communications under s. 186 of theCode. As noted above, the disclosure received by the Applicants consistsof over 8,317 documents totalling in excess of 400,000 pages provided to


the Applicants predominately in electronic form by way of an externalhard drive and multiple DVDs. The disclosure increased with the mate-rial concerning the put away issue. The narrative logs of the interceptedprivate 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 464 interceptedprivate communications into evidence at trial, though this will change asa result of the late disclosure.

(e) Seriousness of the charges567 The seriousness of the charges is reflected in the gravamen of the

offences as well as in the potential penalties. All three Accused arecharged with conspiracy to traffic in cocaine contrary to s. 465(1)(c) ofthe 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 ofthe Criminal Code. The wording of that section is as follows:

467.12(1) Every person who commits an indictable offence underthis or any other Act of Parliament for the benefit of, at thedirection of, or in association with, a criminal organization isguilty of an indictable offence and liable to imprisonment fora term not exceeding fourteen years. [Emphasis added.]

(2) In a prosecution for an offence under subsection (1), it is notnecessary for the prosecutor to prove that the accused knewthe identity of any of the persons who constitute the criminalorganization.

569 The maximum sentence for this criminal offence, as stated above, isfourteen years in prison. A sentence under s. 467.12 will also attract theadditional sanctions listed below that accompany a conviction under s.467.13. As well, the “totality principle” applies to sentences for s. 467.12offences.

570 Caines has been charged under s. 467.13 of the Criminal Code. Thewording of that section is as follows:

467.13(1) Every person who is one of the persons who constitute acriminal organization and who knowingly instructs, directly or indi-rectly, any person to commit an offence under this or any other Actof Parliament for the benefit of, at the direction of, or in associationwith, the criminal organization is guilty of an indictable offence andliable to imprisonment for life. [Emphasis added.]


571 The maximum sentence for this criminal offence is life imprisonment(R. v. Smith, 2008 SKCA 20 (Sask. C.A.) at para. 291, (2008), 307 Sask.R. 45 (Sask. C.A.), and R. v. Terezakis, 2007 BCCA 384 (B.C. C.A.) atpara. 37, (2007), 223 C.C.C. (3d) 344 (B.C. C.A.)).

572 Special sentencing rules accompany a conviction under s. 467.13,which include:

(a) a criminal organization offence must be consecutive to anyother punishment (s. 467.14);

(b) a special parole ineligibility period applies for conspiracyoffences (s. 743.6(1.2)); and

(c) a criminal organization charge may be considered as an ag-gravating factor in sentencing (s. 718.2 of the CriminalCode).

573 Chief Justice Lamer (as he then was) in R. v. M. (C.A.), [1996] 1S.C.R. 500 (S.C.C.) at para. 42 qualified the requirement that sentencesbe consecutive:

In the context of consecutive sentences, this general principle of pro-portionality expresses itself through the more particular form of the“totality principle”. The totality principle, in short, requires a sen-tencing judge who orders an offender to serve consecutive sentencesfor multiple offences to ensure that the cumulative sentence rendereddoes 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 constitut-ing a criminal organization and instructing others to traffic in cocaineand be in possession of the proceeds of crime, contrary to ss. 355(a) and467.13 of the Criminal Code. He is further charged with another count ofpossession of the proceeds of crime as well as five counts of possessionfor the purposes of trafficking in cocaine and one count of obstruction ofjustice.

1“The participation offence carries a maximum penalty of five years imprison-ment, the commission offence fourteen years imprisonment, and the instructingoffence life imprisonment. The “instructing offence” carries the maximum pen-alty of the three criminal organization offences implying that Parliament consid-ered it to be the most culpable offence” (para. 29).


576 These charges are very serious. The allegations involve alleged activ-ities that cause enormous damage to the lives of individuals, families andcommunities. Society has a compelling interest in bringing charges ofthis nature to trial. Similarly, the Applicants face enormous conse-quences if convicted: the gang charges facing Alcantara and Knapczykalone carry a maximum of 14 years in prison, while that facing Cainescarries a maximum of life in prison. These penalties demonstrate thecompelling interests of both society and the Applicants in an expeditiousand fair trial.

5. Conclusions on balancing577 There is no empirical calculation to determine the tipping point at

which the delay becomes unreasonable and contrary to s. 11(b) of theCharter. Rather, it is a judicial balancing act that strives to protect Char-ter enshrined security, liberty and fair trial interests; values that upholdthe rule of law; while at once honouring the important individual andcommunity interests in bringing a case of this complexity and gravity totrial in an expeditious fashion.

578 The overall period of delay in this case is significant, although thecase undoubtedly is a complex one. In my view, the delay attributable toinherent and institutional delay has not been excessive in the circum-stances. The Crown clearly is responsible for almost 11 months of delay.However, the Defence too has caused or contributed to some seven to tenmonths of delay.

579 While the Applicants’ Charter interests have been engaged; their in-terests in liberty, security and fair trial affected; and while they have suf-fered prejudice attributable to delay, Caines in a disproportionately gravefashion, in the circumstance before me, on balance, I cannot find therehas 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 begranted under s. 24(1). The application is dismissed.

Application dismissed.

Appendix A

Other Related Matters in Which Mr. Chadi Acted for an Accused

A. R. v. Jeffery Mark Caines and Melanie Carole Berube1 Caines and Melanie Carole Berube (“Berube”) were jointly charged

in Information No. 016328924P1, sworn on April 20, 2001, with posses-


sion of cocaine for the purpose of trafficking and possession of morethan $1,000 knowing all or part of it was the proceeds of crime. Cainesalso was charged with trafficking in cocaine at or near Fort McMurray,Alberta.

2 On April 25, 2001, the charges were read and both reserved electionand plea. N. Assif of Chadi & Co. appeared for both, apparently acting asagent 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 ad-vised that there was a tape, which the Crown considered to be an impor-tant piece of evidence against Caines, that had not been disclosed to theDefence. Ms. Bottern said the Crown would consent to an adjournment ifthe Defence requested one. On January 25th, the matter was adjourned toFebruary 6th to set a new date for the preliminary inquiry. B. Jean ap-peared as agent for Mr. Chadi for Caines.

6 On February 6th, with Mr. Chadi acting for both accused and Ms. Bot-tern appearing for the Crown, the preliminary inquiry was set for June11, 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 previousnight and released in the morning. Mr. Moreau asked that the matter beadjourned. Ms. Botten indicated the Crown did not want to split the In-formation. Mr. Chadi appeared for Berube. The preliminary inquiry wasset for December 3, 2002.

8 Mr. Moreau acted for Caines and Mr. Chadi for Berube at the prelim-inary inquiry, held on December 3, 2002. Both accused were ordered tostand trial on the possession of proceeds of crime charge and Caines onthe trafficking in cocaine charge. They were not committed to stand trialon the charge of possession of cocaine for the purpose of trafficking.

9 Caines was indicted (Indictment No. 016328924Q2) on those twocharges 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 matterwas adjourned.

11 On September 17, 2003, with Mr. Chadi acting for Berube and asagent for Mr. Moreau for Caines, an adjournment was requested by theDefence, and granted to May 10, 2004.

12 The committal of Berube on the charge of possession of proceeds ofcrime was quashed by Ross J. on February 24, 2004 (R. v. Berube, 2004ABQB 131 (Alta. Q.B.)).

13 On May 7, 2004, Mr. Moreau made a telephone application for anadjournment of the trial for personal reasons relating to him. He advisedBurrows J. that Caines was prepared to waive any resulting delay. Ms.Bottern asked whether Mr. Chadi might take over for Mr. Moreau in act-ing for Caines since the committal against Berube had been quashed byRoss J. Ms. Bottern noted an assignment of bail proceeds on the filewhich indicated a long-standing relationship between Caines and Mr.Chadi. Mr. Moreau advised that Mr. Chadi was not prepared to proceedwith a jury trial within three days. The Crown advised on the record thatit opposed the adjournment.

14 On May 10, 2004, with G. Marullo of Chadi & Co. appearing asagent for Mr. Moreau for Caines, the matter was adjourned.

15 On May 21, 2004, Mr. Chadi appeared as agent for Mr. Moreau forCaines. In speaking to Slatter J. (as he then was), he explained that it hadbecome clear to him before the preliminary inquiry that there was goingto be a conflict between Berube and Caines. As a result, Mr. Moreautook over as counsel for Caines. He also said that a civilian witness at-tended at his office and there may have been a conflict if he was going totestify on behalf of the Crown. However, he indicated, and the Crownagreed, the witness was comfortable with Mr. Chadi cross-examininghim. The matter was adjourned.

16 Mr. Chadi appeared for Caines before Slatter J. on September 1,2004. He stated that there had been a potential conflict he was involvedin with Caines, but it would have been more so if he would have repre-sented both. However, Berube’s case had been resolved. He repeated thata potential witness had been in his office and they’d spoken, so hebacked off the case. He advised that Caines wanted him to act on hisbehalf, but Mr. Moreau would still have to crossexamine the Crown’switness. 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 veryhelpful to Ms. Bottern on that and other files.

17 On November 26, 2004, Mr. Moreau appeared as agent for Mr. Chadifor Caines.

18 On February 14, 2005, jury selection took place before Park J. withMr. Chadi and Mr. Moreau acting for Caines. A mistrial was declared thenext day. On April 18, 2005, during a pretrial 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-coun-sel for Caines at a pre-trial conference on May 20, 2005.

19 On October 27, 2005, there was a stay of proceedings. The chargesagainst Caines were reactivated on October 25, 2006. At the first courtappearance after the re-activation, on December 21, 2006, M. Karout ofChadi & Co. appeared as agent for Mr. Chadi for Caines.

20 On February 2, 2007, with Caines remanded in custody, the matterwas adjourned to March 2nd to set a trial date. M. Jakeman appeared asagent for Mr. Chadi for Caines.

21 On March 30, 2007, Caines elected trial by judge alone. M. Jakemanappeared as agent for Mr. Chadi for Caines. On January 11, 2008, a newtrial date of September 29, 2008 was set on consent of the Crown andDefence. Mr. Gill of Chadi & Co. was listed as counsel for Caines. Abail hearing was held on January 31, 2008. Mr. Chadi appeared as coun-sel for Caines, who was released on bail.

22 At a pre-trial conference on February 22, 2008, A. Gill was listed ascounsel for Caines. Caines’ bail was revoked on that date and he wasremanded 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. OnOctober 1, 2008, Caines was found guilty of both counts in the Indict-ment and sentenced to 48 months, with 18 months credit, leaving 30months. A. Gill acted as Defence counsel.

B. R. v. Aaron Patrick McDonald and Letisha Dawn Peters23 McDonald and Peters were charged in Information No.

051089498P1, sworn on September 16, 2005, with possession of cocainefor the purpose of trafficking, possession of methylenedioxymethy-lamphetamine 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 showcause hearing. Following joint submissions, they were granted judicialinterim release on September 16, 2005. Chadi & Company was listed asassignee of the peace bonds.

25 On October 11, 2005, with Mr. Chadi appearing as counsel, the mat-ter was adjourned to November 22nd for election and plea. On November22, 2005, both accused pleaded not guilty and elected to be tried by aProvincial Court judge. The trial was set for May 24, 2006. M. Karoutappeared as agent for Mr. Chadi for both accused.

26 On February 23, 2006, Marche provided a sworn statement to the po-lice identifying himself as a significant cocaine trafficker in Caines’ net-work. He stated he received a call from Caines on September 15, 2005telling him that an anticipated shipment of cocaine had come in and thathe was to attend at McDonald’s residence to pick up his supply. Heswore that he attended at the residence as instructed and subsequentlyprovided information to investigators that resulted in the search warranton the residence.

27 On April 25, 2006, someone on behalf of Mr. Chadi gave notice bothaccused 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’sBench judge alone. The matter was set over to June 29, 2006. Mr. Chadicontinued 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 pur-pose of trafficking; possession of the proceeds of crime; and various fire-arms offences.

30 Mr. Chadi appeared in Provincial Court as counsel for the accused onJune 28, 2006, at which time all charges in Information No.051089498P1 were withdrawn at the request of the Crown. On the newInformation, counts 2 to 11 were withdrawn as against McDonald at therequest of the Crown and he pleaded guilty to possession of cocaine forthe purpose of trafficking. Counts 1 and 3 to 11 were withdrawn in rela-tion to Peters. She pleaded not guilty to count 2 but guilty to the includedoffence of possession of methylenedioxymethylamphetamine.


C. R. v. Michael Francis Marche and Debbie Weiss31 Marche and Debbie Weiss (“Weiss”) were charged in Information

No. 051383628P1, sworn on November 24, 2005, with possession of co-caine for the purpose of trafficking at or near Red Deer. Marche also wascharged with driving a motor vehicle without insurance. Both designatedMr. Chadi as their counsel on that date. A joint submission of the Crownand Defence for judicial interim release with cash deposits and condi-tions was accepted.

32 On December 15, 2005, Constable Gibson conducted an interviewwith 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 RCMPEdmonton Drug Section noted that the charges against Marche had beenstayed and Marche was being asked for a statement as a witness. He ad-vised Marche that, prior to his arrest on November 24th, phone calls in-volving him had been intercepted pursuant to a wiretap authorization andhis vehicle had been under surveillance at the residence of Caines in Cal-gary. Marche indicated that Mr. Chadi represented him at the bail hear-ing 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 haveany problems, uhm, this is in regards to everybody that worked underJeff... [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 becovered through Jake and Jeff but I got a little impatient.”

36 The police asked Marche if anyone had told him that money could belaundered through Mr. Chadi. Marche said Jeff had spoken about moneylaundering and he assumed it was through Mr. Chadi because “every-thing that Jeff does is through Jake as the lawyer,” but Mr. Chadi’s namehad never actually been mentioned in that regard.

37 An RCMP internal document of member notes of Constable Gibsonand Bannerholt dated December 15, 2005 re debriefing reports containsthe following notes:


• Jake Chadi-lawyer offers to launder cocaine money/proceeds forfee.

• fee was 30% of money laundered-money comes back in form ofcheques from law office.-1 option. explained by things such asinheritance.

• 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 andMelissa Dawn Shephard

38 Harry Armstrong Breakell (“Breakell”), Cardinal and Melissa DawnShephard (“Shephard”) were charged in Information No. 060074796P1,sworn January 18, 2006,with possession of cocaine, marihuana, cannabisresin and ecstasy for the purpose of trafficking, and possession of theproceeds of crime, all at or near Fort McMurray, Alberta.

39 The police allege that Cardinal was a trafficker in Caines’ networkand the drugs found at the residence where he was arrested were the pro-perty of Caines and being stored and distributed for him by Cardinal.

40 The accused were granted judicial interim release that day. Mr. Chadiacted as counsel for all three. In recognizances taken by Cardinal andShephard on January 19, 2006, Mr. Chadi was shown as assignee. Cardi-nal and Shephard executed assignments of cash deposit in favour of Mr.Chadi on that date. Mr. Chadi also was shown as assignee in amendedrecognizances taken January 24, 2006.

41 On January 24, 2006, the matter was adjourned to February 14, 2006for election and plea. A. Gill appeared as agent for Mr. Chadi for Cardi-nal and Shephard and as counsel for Breakell. On January 30, 2006, Car-dinal and Shephard designated Mr. Chadi as counsel. The matter wasagain adjourned on February 14th to March 14th. K. Wolff appeared onboth dates as agent for Ashok Gill for Cardinal and Shephard and as des-ignated counsel for Breakell. The matter was further adjourned to March28th, on which date A. Gill appeared as agent for Mr. Chadi for all threeaccused. Mr. Wolff was taken off the record for Breakell. On April 6,2006, Breakell designated Mr. Chadi as his counsel. Chadi & Co. waslisted as assignee in Breakell’s recognizance of that date. Breakell alsoassigned 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 againappeared as agent for Mr. Chadi for the three accused.


42 On August 14, 2006, Mr. Chadi filled out a statement for all threeaccused 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 prelimi-nary inquiry was cancelled and the matter was adjourned. On January 9,2006, there was a Crown re-election to Indictment. A. Gill appeared asdesignated counsel for the accused. On April 24, 2007, the file wasbrought forward to cancel the preliminary inquiry. A. Gill attended ascounsel of record for the accused. On June 12, 2007, G. Smith appearedas agent for A. Gill for Breakell and as agent for Mr. Chadi for the othertwo accused. A. Gill was shown as counsel of record for the three ac-cused on June 26th and December 11, 2007. The preliminary inquiry washeld 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. Gillappeared as counsel. Cardinal pleaded guilty to counts 1, 2 and 7. Allcounts against Breakell and Shephard were withdrawn.

E. R. v. Cal Derrick Gregoire45 In Information No. 061302865P1, sworn on or about October 8,

2006, Gregoire was charged with assault, resisting a police officer, giv-ing a false name to a police officer and obtaining a taxi by fraud, all at ornear Fort McMurray, Alberta.

46 On November 6, 2006, Gregoire designated Ashok Gill as his coun-sel. J. Webb appeared as agent for A. Gill for Gregoire on that date toreserve plea. On November 27, 2006, trial was scheduled for March 14,2007. On March 12th, G. Johnson appeared for G. Deboe, new counselfor Gregoire. The trial date was cancelled and the matter was adjournedto March 28th. A. Gill was taken off the record on that date and Gregoireentered a plea of not guilty. The trial subsequently was set for August28th.

47 On August 28, 2007, counts 1 and 4 were dismissed and Gregoirepleaded guilty on counts 2 and 3. Count 5 was withdrawn.

F. R. v. Charles Weston Flight and John Norman Caines48 Flight and John Norman Caines were charged in Information No.

061444063P1, sworn November 24, 2006, with conspiring together andwith Caines, Marche, Josh Penton, Nicholas Bela Van Den Hurk and per-


sons unknown to traffic in cocaine between October 18 and 29, 2005 andwith having in their possession proceeds of crime. Flight was furthercharged with possession of cocaine and cannabis marihuana for the pur-pose of trafficking.

49 Caines and Alcantara understand that the theory of the prosecutioninvolving Flight and John Caines is that on October 27, 2005, Flight wasin possession of cocaine and marijuana for the purpose of trafficking. Hisinvolvement in transporting these substances was in furtherance of a con-spiracy to distribute cocaine. Flight acted on behalf of Caines, the princi-pal in a cocaine distribution network responsible for supplying cocaineand other drugs to major traffickers in the Fort McMurray region.Among Flight’s responsibilities was the gathering of funds from the ma-jor distributors and transporting and delivering cocaine to these traffick-ers. John Caines, the father of Jeffrey Caines, was involved in the con-spiracy during the same time frame as Flight and worked in concert withhim in relation to the gathering and accounting of money from people inCaines’ network of traffickers.

50 On November 30, 2006, John Caines designated Mr. Chadi as hiscounsel.

51 On December 1, 2006, M. Karout appeared as agent for Mr. Chadi forboth accused, who reserved their elections. John Caines was remandedinto custody. A warrant was issued for the committal of Flight as he hadnot complied with the conditions of his release. Flight was released onrecognizance taken on December 7, 2006. Chadi & Co. was listed on therecognizance as assignee of the $7,500 cash bail deposit. On December12, 2006, Flight designated Mr. Chadi as his counsel.

52 On April 23, 2007, both accused elected trial by Queen’s Bench judgealone. The preliminary inquiry was set for March 8, 2008. A. Vretnerappeared as agent for Mr. Chadi for both accused.

53 On June 14, 2007, Anderson P.C.J. wrote to Crown and Defencecounsel confirming each of their retainers. He referred to Mr. Chadi ascounsel for Caines, Knapczyk, Flight and John Caines. He wrote:

Mr. Chadi has advised the Court that he has satisfied himself he isnot acting in a conflict of interest and as the consent of each of hisfour clients to act for the other. The Crown is not alleging a conflictof interest which I understand to include an implicit representationthat the Crown does not foresee calling any one of the four accusedagainst any of the others, with some being charged on separateinformations.


54 On February 20, 2008, Kerby P.C.J. granted a consent order releasingFlight from custody on the charges in the Information.

55 On February 22, 2008, the Crown addressed Anderson P.C.J. with apossible conflict of interest in terms of Mr. Chadi representing both ac-cused. The matter was adjourned so that both accused could be present.

56 On March 7, 2008, the Court was advised that the accused had seenindependent counsel. Mr. Chadi advised that he would not act for theaccused at the preliminary inquiry. The matter was adjourned so the ac-cused could retain new counsel and to set a new date for the preliminaryinquiry. On March 10th, Wheatly P.C.J. seized himself on all preliminaryapplications 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 onMarch 31, 2008. A. Juneja appeared as a friend for John Caines, althoughhe had not yet been retained as counsel. The preliminary inquiry wasscheduled for January 5, 2009.

58 On April 1, 2008, Flight, acting for himself, re-elected trial by Pro-vincial Court judge and pleaded guilty to count 1 on an agreed statementof facts. On September 15, 2008, Flight was sentenced on count 1 andcounts 2 to 4 were withdrawn at the request of the Crown.

59 On November 24, 2008, the court was advised an agreed statement offacts 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 forthe preliminary inquiry was reduced to one week. Counts 1 and 2 againstJohn Caines were withdrawn by the Crown on January 5, 2009.

G. R. v. Ricco King, Farhan Sattar, Kamran Sattar, Mark AndrewHoskins and Melissa Diane King

60 Ricco King, Farhan Sattar, Kamran Sattar and Hoskins were chargedin Information No. 061444048P1, sworn November 24, 2006, with con-spiring together and with Caines, Marche and persons unknown to trafficin cocaine between October 28, 2005 and December 17, 2005. MelissaDiane King was charged with possession of proceeds of crime on No-vember 23, 2005. Hoskins was further charged with possession of theproceeds of crime between October 31, 2005 and November 23, 2005.

61 On December 1, M. Karout appeared as agent for Mr. Chadi for Hos-kins. His plea was reserved. On December 7, 2006, Hoskins signed anassignment of cash deposit of $10,000 to Chadi & Co. He designated Mr.


Chadi as his counsel on December 12th. Chadi & Co. was listed as theassignee in the recognizance for Hoskins taken on that date. Mr. Chadi oran agent acting for him appeared for Hoskins on January 29, 2007, Feb-ruary 26, 2007, April 23, 2007, May 31, 2007 and July 23, 2007. Achange of venue application on the latter date was successful and thematter was transferred to Calgary.

62 On August 8, 2008, John James, counsel for Ricco and Melissa King,having reviewed disclosure, wrote to Ms. D. Espeut of the Crown, with acopy to Mr. Chadi, raising the issue of Mr. Chadi’s continuing represen-tation of Hoskins. He asked why the Crown had not taken steps to seekto remove Mr. Chadi given the obvious conflict of interest given his priorrepresentation of proposed Crown witnesses Marche and Weiss with re-spect to matters directly related to the charges before the Crown. He sug-gested that he should be advised if the witnesses had waived the conflict.If they had, he took the position that their waiver also involved waivingtheir solicitor-client privilege with Mr. Chadi. In any event, he stated thatMarche and Weiss’ statements to the Crown and others contained clearwaivers of their solicitor-client privilege and he advised he might seekproduction of Mr. Chadi’s file by way of a third party records applicationunless the Crown requested and produced them. If the Crown waived theconflict, 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 VeldhuisP.C.J. that his office had had dealings with Marche and Weiss, the twocivilian witnesses who were to testify at the preliminary inquiry, whenthey were accused persons in Red Deer and Fort McMurray. He indi-cated he was acting for Caines in the Koker A prosecution in Edmonton.He informed the Court that in terms of that prosecution, an independentcounsel cross-examined Marche and Weiss on Caines’ behalf. He ad-vised that if Caines was called by certain of the accused to testify in thepreliminary inquiry before the Court, he would be in an untenable posi-tion. He said that the issue was raised by Hoskins. Judge Veldhuis stated:[s]urely you had knowledge that these were potential witnesses, becauseyou would have received disclosure. It has been pre-trialed. You musthave known.” Mr. Chadi said he knew Marche and Weiss were witnessesin this matter and he would have no difficulty in that regard. It was im-plied he did not realize Caines might be called by the Defence. He indi-cated that Hoskins did not wish him to continue as his counsel. Hoskins


addressed the Court and said he became aware of the situation thatmorning.

64 Mr. James clarified that Mr. Chadi previously had acted for Marcheand Weiss with respect to the alleged conspiracy and predicate offencesbefore the Court and the Crown intended to call them as witnesses. Heoffered his opinion that it would have been inappropriate for independentcounsel to cross-examine those witnesses. Also, he indicated that he didnot believe Marche and Weiss had waived the conflict. He said that at thepreliminary inquiry on Koker A in Edmonton, Marche clearly felt un-comfortable with Mr. Chadi’s presence in the courtroom as he describedan incident where Mr. Chadi was discussing something with Caines. Mr.James informed Judge Veldhuis that he raised the issue with the Crownsome time ago. He submitted that the conflict issues had been apparentfor a long time and the Crown should have dealt with those issues at theearliest opportunity. Mr. James also noted that Mr. Chadi representedCaines, who was an unindicted co-conspirator, adding to the potential forconflict. He did concede the conflict issue was not raised in any of thepre-trial conferences since there is a decision from former Mustard P.C.J.that only the preliminary inquiry judge would have jurisdiction to dealwith the issue. Mr. James raised the prospect that Mr. Chadi could becalled as a witness for the Defence as there was an allegation by Marchethat Mr. Chadi may have participated in the conspiracy.

65 Mr. Lord, representing Farhan Sattar, supported Mr. Chadi’s applica-tion to withdraw and suggested Hoskins could not have been properlyrepresented up to that point. He noted that Marche was likely to giveevidence against Hoskins and his own client. He pointed out that Caineswas the alleged recipient of all the drugs at issue in the proceeding. Healso noted that Corporal Anderson was the principal Crown witness andwas the lead investigator and also interviewed Marche and Weiss. Henoted that Corporal Anderson put the suggestion to Marche that therewas a retainer with Mr. Chadi to launder the proceeds of the conspiracy.He suggested the conflict arose from the time Mr. Chadi went on recordas counsel for Hoskins.

66 The Crown advised that going into the proceedings that day, she wasaware only of the Marche/Weiss issue and had been satisfied it could bedealt with as it had been in the Koker A preliminary inquiry with theagreement of the Crown by having independent counsel crossexaminethem. She said it was clear from the bail hearings that these would beimportant witnesses and it was also clear from disclosure. She indicated


the Crown did not intend to call Caines. However, she conceded if hewas called by the Defence, it would put Mr. Chadi in a conflict position.

67 Judge Veldhuis granted Mr. Chadi’s application to withdraw as coun-sel on September 17, 2008. An application by Hoskins for an adjourn-ment of the matter was granted on September 17, 2008 with respect to allaccused.

68 On December 12, 2008, Mr. Chadi is shown on the endorsements ascounsel for Hoskins. On December 29, 2008, S. Virk appeared for Hos-kins but said Mr. Chadi was still on the record. Hoskins, represented byVirk, pleaded guilty to counts 1 and 3 on February 5, 2009 and wassentenced.

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