R. v. Alcantara (J.R.) et al., 2013 ABCA 163

• Judge: Berger, Slatter and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 17, 2013
• Citations: 2013 ABCA 163;(2013), 544 A.R. 379

R. v. Alcantara (J.R.) (2013), 544 A.R. 379; 567 W.A.C. 379 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MY.089

Her Majesty the Queen (respondent) v. John Reginald Alcantara (applicant/appellant)

(0903-0338-A)

Her Majesty the Queen (respondent) v. Sean David Critch (applicant/appellant)

(1003-0284-A; 2013 ABCA 163)

Indexed As: R. v. Alcantara (J.R.) et al.

Alberta Court of Appeal

Berger, Slatter and Bielby, JJ.A.

May 17, 2013.

Summary:

The accused (Alcantara and Critch) were suspected of cocaine trafficking. The R.C.M.P. obtained wire-tap authorizations. One authorization required that the "interception of communications shall be accompanied by live visual surveillance or live audio monitoring". Not all communications were "live-monitored". Of the 365 interceptions tendered as evidence, 60 of those interceptions had been "put away" (i.e., recorded, but not listened to until later). Eight of those communications involved Alcantara and 52 involved Critch. The accused were convicted of various drug and weapons offences (See [2009] A.R. Uned 629). The Crown had no knowledge of the "put away" calls until after the trial, as the R.C.M.P. neglected to disclose to the Crown that they had not "live-monitored" all intercepted calls. The Crown conceded that it was obliged to disclose use of the "put away" feature and that the failure to do so infringed the accused's ss. 7 and 8 Charter rights. Counsel for Alcantara admitted that the absence of "live monitoring" likely did not affect the outcome of his trial. However, the Crown conceded that there was a reasonable possibility that the outcome of Critch's trial was affected, because the intercepted calls played a major role in his convictions.

The Alberta Court of Appeal dismissed Alcantara's appeal, stating that "although the Crown failed to disclose to Alcantara's counsel the use of the 'put away' feature in executing the wiretap monitoring, we agree that this admitted Charter breach would not survive a s. 24(1) analysis if a retrial were ordered". A new trial was not appropriate for Critch, as he had served his entire sentence. The appropriate remedy for the admitted Charter breach which affected his right to a fair trial was to stay any order for a new trial.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See second Criminal Law - Topic 4958 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See both Criminal Law - Topic 4958 ].

Criminal Law - Topic 4958

Appeals - Indictable offences - New trials - Grounds for refusing or staying new trial - The accused (Alcantara and Critch) were suspected of cocaine trafficking - The R.C.M.P. obtained wire-tap authorizations - One authorization required that the "interception of communications shall be accompanied by live visual surveillance or live audio monitoring" - Not all communications were "live-monitored" - Of the 365 interceptions tendered as evidence, 60 of those interceptions had been "put away" (i.e., recorded, but not listened to until later) - Eight of those communications involved Alcantara and 52 involved Critch - The accused were convicted of various drug and weapons offences - The Crown had no knowledge of the "put away" calls until after the trial, as the R.C.M.P. neglected to disclose to the Crown that they had not "live-monitored" all intercepted calls - The Crown conceded that it was obliged to disclose use of the "put away" feature and that the failure to do so infringed the accused's ss. 7 and 8 Charter rights - The Crown conceded that there was a reasonable possibility that the outcome of Critch's trial was affected, because the intercepted calls played a major role in his convictions - When the appeal was heard, Critch had already served his sentence - The Alberta Court of Appeal stated that "when a failure to disclose deprives an accused of the opportunity to seek the exclusion of evidence, the right to make full answer and defence may be affected notwithstanding that the failure may not have a more direct effect on the issue of 'guilt or innocence'. ... We accept, and the Crown concedes, that where a new trial might otherwise be ordered as the result of a failure to disclose, but where the accused has already been convicted, sentenced and fully served that sentence, to order a new trial would be unfair and the matter should instead be stayed" - See paragraphs 29 to 31.

Criminal Law - Topic 4958

Appeals - Indictable offences - New trials - Grounds for refusing or staying new trial - The accused (Alcantara and Critch) were suspected of cocaine trafficking - The R.C.M.P. obtained wire-tap authorizations - One authorization required that the "interception of communications shall be accompanied by live visual surveillance or live audio monitoring" - Not all communications were "live-monitored" - Of the 365 interceptions tendered as evidence, 60 of those interceptions had been "put away" (i.e., recorded, but not listened to until later) - Eight of those communications involved Alcantara and 52 involved Critch - The accused were convicted of various drug and weapons offences - The Crown had no knowledge of the "put away" calls until after the trial, as the R.C.M.P. neglected to disclose to the Crown that they had not "live-monitored" all intercepted calls - The Crown conceded that it was obliged to disclose use of the "put away" feature and that the failure to do so infringed the accused's ss. 7 and 8 Charter rights - Counsel for Alcantara admitted that the absence of "live monitoring" likely did not affect the outcome of his trial (only one such call referred to by the trial judge and there was a "plethora" of other evidence supporting the conviction) - The Alberta Court of Appeal rejected Alcantara's argument that the non-disclosure rendered his trial unfair - The court rejected the Crown's argument that knowledge of the use of the "put away" feature should be imputed to defence counsel based on its use in earlier prosecutions, especially where the Crown had no actual knowledge - However, it was not appropriate to allow Alcantara's appeal, then stay the order for a new trial, because it was not reasonably likely that Alcantara would be successful on a new trial in obtaining a stay of proceedings under s. 24(1) of the Charter, particularly where there was sufficient evidence to support his convictions even absent the impugned evidence - Further, the "live-monitoring" was to protect the privacy interests of third parties, not Alcantara - There was no evidence that such privacy interests were prejudiced - As any remedy short of a stay of proceedings would not assist Alcantara, his appeal was dismissed - See paragraphs 32 to 47.

Criminal Law - Topic 4965.2

Appeals - Indictable offences - New trials - Where sentence served or partially served - [See first Criminal Law - Topic 4958 ].

Criminal Law - Topic 5286

Evidence and witnesses - Interception of private communications - Authority for - Scope of - [See both Criminal Law - Topic 4958 ].

Cases Noticed:

R. v. Caines (J.M.) et al. (2011), 518 A.R. 227; 2011 ABQB 692, refd to. [para. 3].

R. v. Peluso, 2012 ONSC 1952, refd to. [para. 9].

R. v. A.A., [2010] O.T.C. Uned. 1316; 2010 ONSC 1316, refd to. [para. 9].

R. v. Alcantara (J.R.) et al. (2012), 521 A.R. 143; 2012 ABQB 31, refd to. [para. 9].

R. v. Alcantara (J.R.) et al., [2012] A.R. Uned. 297; 2012 ABQB 354, refd to. [para. 9].

R. v. Willis (I.I.) (1997), 204 A.R. 161 (Prov. Ct.), refd to. [para. 9].

R. v. Alcantara (J.R.) et al. (2012), 547 A.R. 1; 2012 ABQB 521, refd to. [para. 23].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 27].

R. v. Bellusci (R.), [2012] 2 S.C.R. 509; 433 N.R. 135; 2012 SCC 44, refd to. [para. 27].

R. v. D.R.S. (2013), 542 A.R. 92; 566 W.A.C. 92; 2013 ABCA 18, refd to. [para. 31].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 33].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 43].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 45].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 46].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 61].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 61].

R. v. Caines (J.M.) et al. (2011), 517 A.R. 269; 60 Alta. L.R.(5th) 131; 2011 ABQB 660, refd to. [para. 64].

R. v. Alcantara (J.R.) et al. (2011), 521 A.R. 130; 2011 ABQB 719, refd to. [para. 83].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 86].

R. v. Caines (J.M.) et al. (2010), 501 A.R. 1; 39 Alta. L.R.(5th) 181; 2010 ABQB 646, refd to. [para. 87].

R. v. Yumnu (I.) et al. (2012), 437 N.R. 289; 2012 SCC 73, refd to. [para. 88].

R. v. Alcantara (J.R.) et al., [2009] A.R. Uned. 629; 24 Alta. L.R.(5th) 248; 2009 ABQB 524, refd to. [para. 90].

R. v. Caines (J.M.) et al. (2010), 503 A.R. 170; 37 Alta. L.R.(5th) 206; 2010 ABQB 616, refd to. [para. 90].

R. v. Nguyen (T.C.) (2006), 285 Sask.R. 85; 378 W.A.C. 85; 211 C.C.C.(3d) 337; 2006 SKCA 83, refd to. [para. 95].

R. v. Thompson et al., [1990] 2 S.C.R. 1111; 114 N.R. 1, refd to. [para. 107].

R. v. Welsh (J.) et al., [2007] O.T.C. Uned. 682 (Sup. Ct.), refd to. [para. 110].

R. v. Mohamud (A.), [2010] O.T.C. Uned. 6264; 263 C.C.C.(3d) 350; 2010 ONSC 6264 (Sup. Ct.), refd to. [para. 110].

Wentworth v. Lloyd (1864), 10 H.L. Cas. 589; 11 E.R. 1154, refd to. [para. 154].

Errico v. British Columbia Electric Railway Co., [1917] 2 W.W.R. 238; 23 B.C.R. 468 (C.A.), refd to. [para. 154].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 174].

Counsel:

R.C. Reimer, for the respondent;

D.J. Song, for the appellant, John Reginald Alcantara;

L.L. Garcia and S.N. DeSouza, for the appellant, Sean David Critch.

These appeals were heard on January 10, 2013, before Berger, Slatter and Bielby, JJ.A., of the Alberta Court of Appeal.

On May 17, 2013, the following memorandum of judgment was delivered and the following opinions were filed:

Bielby, J.A. (Berger, J.A., concurring) - see paragraphs 1 to 50;

Slatter, J.A. - see paragraphs 51 to 177.