R. v. Alcantara (J.R.) et al., (2015) 606 A.R. 313

• Judge: Côté, Costigan and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 13, 2015
• Citations: (2015), 606 A.R. 313;2015 ABCA 259

R. v. Alcantara (J.R.) (2015), 606 A.R. 313; 652 W.A.C. 313 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. AU.075

Her Majesty the Queen (respondent) v. John Reginald Alcantara and Alan Peter Knapczyk (appellants)

(1203-0235-A; 1203-0236-A; 2015 ABCA 259)

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

Alberta Court of Appeal

Côté, Costigan and Wakeling, JJ.A.

August 13, 2015.

Summary:

The accused, members of Hells Angels, were charged with conspiracy to traffic in cocaine, trafficking in cocaine, and conspiring and trafficking in cocaine for the benefit of, at the direction of, or in association with a criminal organization (Hells Angels). The accused were members of the Hells Angels who allegedly entered into an "exclusivity agreement" with a cocaine trafficking group, whereby the Hells Angels agreed to provide protection for the group's drug trafficking activities in exchange for monies.

The Alberta Court of Queen's Bench, in a judgment reported (2012), 547 A.R. 1, held that the accused were members of the conspiracy to traffic in cocaine. Their role was to provide Hells Angels protection for the trafficking group, including removing persons interfering with the group's trafficking activities, resolving the problem of the theft of cocaine from one of the group's traffickers, and dealing with problems of bullying of the group's traffickers by other traffickers. The accused were guilty of conspiracy to traffic in cocaine and conspiring to traffic in cocaine for the benefit of, at the direction of, or in association with a criminal organization (the drug trafficking organization). However, as there was no evidence that the accused aided in the actual trafficking of cocaine, they were acquitted of trafficking in cocaine. The Crown appealed the acquittals for trafficking. The accused appealed their convictions.

The Alberta Court of Appeal, in a judgment reported (2015), 602 A.R. 197; 647 W.A.C. 197, allowed the Crown's appeal and substituted convictions on the basis that the evidence established that the accused were parties to the offence of trafficking based on aiding and abetting.

The Alberta Court of Appeal dismissed the accused's conviction appeals.

Civil Rights - Topic 1407

Security of the person - Law enforcement - Identification - The accused was arrested at his residence and transported to the R.C.M.P. detachment - He was advised of his right to counsel and his right to remain silent - At the detachment, he exercised his right to counsel - During the processing phase of his arrest, after speaking with counsel, voice identification evidence was obtained respecting the accused's utterances to police - The accused argued that his right to counsel and right to silence were infringed where the police failed to advise him that his statements could be used for purposes of voice identification - The trial judge rejected the argument, stating that "so long as utterances of the accused for the purpose of voice identification are obtained by police in a fashion that meets the traditional criteria of voluntariness - without threats, promise or oppression, with an operating mind, and as long as the voice identification evidence is not obtained by means of a ruse, those utterances will be found to be voluntary. The obtaining of voice identification evidence without advising the accused that such statements may be used against him for voice identification purposes will not constitute a breach of s. 7 of the Charter so long as: (1) the accused has been advised of his right to remain silent; (2) the accused has been afforded his s. 10(b) Charter right to counsel without delay prior to the utterances being made; and (3) the utterances are voluntary. In this way, the right to counsel supports the right to silence and both are respected in balance with the legitimate activities of the police." - The Alberta Court of Appeal affirmed the admissibility of the identification evidence, as the accused was advised of his Charter rights and lawfully arrested at that time - See paragraph 271.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - Following a long and complex trial, the accused were convicted of conspiracy to traffic in cocaine and conspiring to traffic in cocaine for the benefit of, at the direction of, or in association with a criminal organization - The accused argued that their s. 11(b) Charter right to be tried within a reasonable time was infringed by the 4.5 year delay between the charges and the estimated trial end date - The trial judge found 1.5 years' of inherent delay and 7-10 months of delay attributable to the accused - The Alberta Court of Appeal held that the trial judge did not err in finding that the accused's s. 11(b) rights were not infringed - The trial judge did not overemphasize or double count the "seriousness of the offences" - Defence delay was not overemphasized - A conflict of interest between two defence counsel, which delayed the proceedings, was an internal defence matter that was not caused by the Crown - Further, any Crown delay (short of a violation of s. 11(b)) was remedied by a significant sentence reduction for each accused - The court stated that "In a case this complex, the importance of inherent delay is self-evident and amply confirmed by the evidence." - See paragraph 294 to 348.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 1407 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused were two targets of a lengthy criminal investigation into drug trafficking - The authorities obtained multiple wiretap authorizations - Some of those intercepted private communications were sought to be introduced as evidence at the accused's trial - None of those communications were obtained in violation of the accused's s. 8 Charter rights and were authorized - However, some other intercepted communications obtained under the authorizations did not comply with the conditions of the authorization and violated the s. 8 Charter rights of the persons involved (not the accused) - The accused (Knapczyk), notwithstanding the lack of standing to challenge those intercepted communications, argued that the evidence sought to be admitted against him should have been excluded under s. 24(2) notwithstanding that there was no breach of his Charter rights - The trial judge rejected the submission, stating that "the present case does not deal with the admissibility of secondary evidence so as to apply the proximity theory to cast the net of exclusion beyond interceptions in which the applicants had personal privacy interests." - The Alberta Court of Appeal dismissed the accused's appeal - The accused was a party to only three of the 3,231 interceptions that violated the Charter - The court stated that "The fact that none of the intercepted private communications was introduced into evidence in criminal proceedings deprives this aspect of the proceedings of any legal significance. It is moot." - Absent evidence obtained in violation of the accused's Charter rights, there was no basis to exclude that evidence - See paragraphs 248 to 270.

Civil Rights - Topic 8380

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Status or standing - The accused was one target of intercepted private communications under wiretap authorizations issued respecting a drug trafficking investigation - The trial judge held that the accused lacked standing to challenge an intercepted private communication as an unreasonable search and seizure (Charter, s. 8) where he was mentioned in the conversation, but was not a party to it - A claim for relief under s. 24(2) could only be made by an accused whose Charter rights were infringed - The protection against unreasonable search and seizure (s. 8) was a personal right - The right to challenge the legality of a search required that an accused establish that his personal privacy rights were violated - An accused did not have an expectation of privacy in a telephone conversation simply because his name was mentioned - Further, standing for purposes of s. 8 was not established merely because an accused referred to in a recorded conversation to which he was not a party was an alleged co-conspirator of a party to the conversation - The Alberta Court of Appeal affirmed the lack of standing, stating that the accused "had no standing to contest the validity of intercepts involving communications that he neither originated nor received" - See paragraphs 210 to 223.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - [See Civil Rights - Topic 8380 ].

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - The accused was convicted of conspiracy to traffic in cocaine and conspiring to traffic in cocaine for the benefit of, at the direction of, or in association with a criminal organization - One of the accused (Knapczyk), on the issue of the conspirator's exception to the hearsay rule, appealed on the ground that although the trial judge correctly stated the law respecting proof of membership in the conspiracy (balance of probabilities), the standard actually applied to find him to be a member of the conspiracy was lower than a balance of probabilities - The Alberta Court of Appeal dismissed this ground of appeal, as the trial judge clearly both stated and applied the correct burden of proof - See paragraphs 40 to 54.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - The Alberta Court of Appeal rejected the submission that "because necessity must be shown, even a co-conspirator's statements cannot be put into evidence if the Crown could have subpoenaed the declarant (co-conspirator) to testify. ... Necessity goes beyond whether the declarant is physically available to come. It also looks at the nature and quality of the evidence ... Physical availability of a co-conspirator is not enough to ban the evidence." - See paragraphs 114, 123, 124.

Criminal Law - Topic 3587

Preliminary inquiry - Evidence - Admission at trial of evidence taken at a preliminary inquiry - The accused were charged with drug and criminal organization offences - Marche, an alleged co-conspirator, drug addict and paid R.C.M.P. informant, testified for the Crown at the accused's 2008 preliminary inquiry in exchange for charges against him and his fiancé being stayed - Marche died before trial - The trial judge held that Marche's preliminary inquiry testimony was admissible for its truth under either s. 715 of the Criminal Code or the principled exception to the hearsay rule - Respecting s. 715, the statutory prerequisites were met where the accused had a full opportunity to cross-examine Marche at the preliminary inquiry - The accused's argument that late disclosure relevant to Marche resulted in the lack of a full opportunity to cross-examine Marche was rejected - The court stated that "so long as the accused had the full opportunity to cross-examine the witness, he or she cannot complain if that opportunity was not fully exercised" - The issues raised did not preclude a full opportunity to cross-examine - Although the court had a discretion, on the grounds of trial fairness, to refuse to admit evidence that met the requirements of s. 715, trial unfairness was not established - The evidence was admitted subject to a Potvin warning (that trier of fact did not have the benefit of observing the witness testify) and a Vetrovec warning (credibility re alleged co-conspirator who was an admitted drug trafficker and paid informant) - The court was free to accept all, some or none of the evidence - Under the principled exception to the hearsay rule, the testimony was both necessary and met the threshold reliability - Probative value outweighed any prejudicial effect - Whether the testimony was ultimately reliable was a question for the trial judge - The Alberta Court of Appeal held that the trial judge did not err in admitting the preliminary inquiry testimony under s. 715 - See paragraphs 55 to 92.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - An accused appealed his convictions for conspiracy to traffic in cocaine and conspiring to traffic in cocaine for the benefit of, at the direction of, or in association with a criminal organization on the ground that the trial judge misapprehended evidence - The Alberta Court of Appeal, in dismissing this ground of appeal, stated that "In order to affect the trial result, a misapprehension of the evidence must play an essential part of the reasoning process. The error must be obvious. This ground of appeal must be considered in the context of this complex trial as a whole. The fabric of the judgment is woven from innumerable pieces of often conflicting evidence. It would not be surprising to find a few loose threads. It would be unrealistic to expect the trial judge to refer to or resolve every factual conflict. ... A fair reading of these voluminous trial Reasons does not support the argument that the trial judge misapprehended the evidence in any material sense or that she made an obvious error on the evidence which undermines the verdict." - See paragraphs 127 to 133.

Criminal Law - Topic 5210.1

Evidence and witnesses - Admissibility and relevancy - Statements lacking context (incl. portion of statements) - An accused appealed his convictions on the ground that the trial judge erred in admitting three complete sentences in an intercepted telephone conversation - The intelligible statements by the accused were preceded by and followed by unintelligible statements by a co-conspirator (background noise) - The Alberta Court of Appeal rejected the accused's submission that absent the statements preceding and following his statements, his statements were not admissible - The court stated that "the special rules of exclusion suggested by the [accused] lack any authority. In our view, such rules to not exist. Orthodox rules of law for weighing prejudice and relevance apply, says the Supreme Court of Canada. The topic is entirely one of weight, before and after admission of the evidence. The trial judge's decision here was reasonable. It was far from palpable and overriding error. Whether the past or present tense was used in an informal conversation, is a mere quibble. The trial judge heard the actual recording of the voice, not a mere transcript, and was used to hearing the declarant's voice. More important, the trial judge did not use this statement in isolation. For example, there were dozens and dozens of intercept, many between the same two men. She fitted it into a large mosaic." - See paragraphs 134 to 148.

Criminal Law - Topic 5221

Evidence and witnesses - Burden of proof - Proof of guilt beyond a reasonable doubt - The Alberta Court of Appeal stated that "judges must weigh evidence together as a whole, especially when it is not direct eyewitness testimony. Reasonable doubt is not to be found in individual factual questions" - See paragraph 7.

Criminal Law - Topic 5221

Evidence and witnesses - Burden of proof - Proof of guilt beyond a reasonable doubt - [See Evidence - Topic 204 ].

Criminal Law - Topic 5274.3

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Affidavit - Examination or cross-examination of deponent - The R.C.M.P., conducting an investigation with the purpose of dismantling Alcantara's drug trafficking operation, obtained wiretap authorizations to intercept private communications - The accused (Alcantara and Knapczyk) brought a Garofoli application to exclude the evidence obtained from the wiretap under s. 24(2) of the Charter, alleging an unreasonable search and seizure (s. 8) - The accused conceded reasonable and probable grounds for the wiretap, but challenged the authorizations on the ground of the lack of investigative necessity - The accused argued that the application for the authorization failed to disclose material information disclosing a realistic avenue of investigation by utilizing the knowledge of their "insider" informant (i.e., informant willing and able to provide the information they sought) - The accused applied to cross-examine the officer who applied for the authorization on his knowledge of the informant's knowledge, the refusal to utilize the informant as an investigative tool and the failure to disclose this information to the authorizing judge - The trial judge dismissed the application, stating that "I see no reasonable likelihood that cross-examination of [the officer] will elicit evidence tending to discredit the existence of the investigative necessity required for the authorizations or that will otherwise be of assistance to the court in determining a material issue" - The Alberta Court of Appeal held that the trial judge did not err in his order limiting cross-examination - See paragraphs 177 to 209.

Criminal Law - Topic 5274.4

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Investigative necessity - [See Criminal Law - Topic 5274.3 ].

Criminal Law - Topic 5286

Evidence and witnesses - Interception of private communications - Authority for - Scope of - The accused were convicted of conspiracy to traffic in cocaine and conspiring to traffic in cocaine for the benefit of, at the direction of, or in association with a criminal organization - Wiretap authorizations were obtained that required "live monitoring" - The accused appealed, arguing that the police should have disclosed to the authorizing judge that they lacked the resources to fulfill the live monitoring condition - The Alberta Court of Appeal dismissed this ground of appeal - The court held that "such real-time live listening is a practice designed to protect the privacy of other persons who are not the target of the intercepts. That practice is not, and was not, designed to give any protection or other benefits to the named accused, who were the targets. ... The police followed the live monitoring condition for the phone calls which the trial judge admitted into evidence. ... there is much force to the Crown's comment that the breach of the live-monitoring condition was 'theoretical and technical' ... This was all about a tricky legal question of how to protect theoretical non-parties who may well not exist, do not complain, and are not harmed. Mr. Knapczyk has no standing over rights of those theoretical people. Nor were any such people's rights violated by the limited number of phone calls which the trial judge did admit. This whole ground of appeal is more or less moot." - See paragraphs 229 to 247.

Criminal Law - Topic 5420.1

Evidence and witnesses - Witnesses - Admissibility of evidence previously taken where witness unavailable or unable to testify - [See Criminal Law - Topic 3587 ].

Evidence - Topic 204

Inferences and weight of evidence - Inferences - Inferences and legal proof - An accused appealed his convictions on the ground that the trial judge made irrational and illogical inferences - In support, the accused argued two legal propositions: (1) "that factual conclusions and inferences must proceed from evidence which itself is not doubtful; it is not enough if they are merely probable. We take that to mean that individual facts must be proved each beyond a reasonable doubt", and (2) "that an inference of guilt is impossible (even from established facts), if the evidence is equally consistent with other possibilities" - The Alberta Court of Appeal rejected the argument - The standard of reasonable doubt did not apply to individual pieces of evidence, but to the evidence as a whole and a reasonable inference had to be probable - See paragraphs 149 to 154.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See Criminal Law - Topic 3587 ].

Evidence - Topic 4241

Witnesses - Privilege - Lawyer-client communications - Privilege - General - The accused were convicted of conspiracy to traffic in cocaine and conspiring to traffic in cocaine for the benefit of, at the direction of, or in association with a criminal organization based in part on wiretap evidence - Papers from or about the police employees who ran the wiretap operations were produced to the accused and court, but some contained redactions based on solicitor-client privilege - On appeal, the accused argued that the trial judge erred in finding the readacted information privileged (accused had argued at trial, but not on appeal, that privilege had been waived) - The Alberta Court of Appeal dismissed the appeal - Whether privilege was conceded at trial (argued by the Crown) did not matter - At trial, the accused never argued that the papers at issue were not privileged - It was too late for the accused to raise this point on appeal - See paragraphs 272 to 293.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - The accused were charged with drug and criminal organization offences - The Crown proposed to call an R.C.M.P. officer to give "expert" evidence on the nature and characteristics of the Hells Angels Motorcycle Club (HAMC) - The accused opposed the officer's qualifications as an "expert", argued that the proposed evidence was not relevant and claimed that it was more prejudicial than probative - The trial judge qualified the officer as an "expert" witness respecting the nature and characteristics of the HAMC - The preconditions to admission of expert evidence were relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule and a properly qualified expert who acquired special or peculiar knowledge through study or experience - Evidence on the nature and characteristics of the HAMC and the reputation of the HAMC in the community met the relevancy threshold and was necessary - The proposed evidence was more probative than prejudicial and it would be adduced for a legitimate purpose other than to show that the accused had the propensity to commit the crimes alleged - There was no exclusionary rule (hearsay), as the expert arrived at his general opinions on first-hand experience as an investigator, including thousands of hours of surveillance on members of the HAMC and its clubhouses, thousands of hours listening to intercepted communications, searches of HAMC clubhouses and reviewing documents seized from the search of those clubhouses - To the extent that the expert's opinion was partially based on hearsay, that went to weight rather than admissibility - A claim of bias by the expert was not established - The trial judge was satisfied that the specialized knowledge acquired by the officer through experience qualified him to give expert evidence - The Crown and accused agreed on certain matters the expert could not give an opinion on, the trial judge determined what matters could be subject to an opinion and the admissibility and weight of other areas were left to be determined at trial - The accused appealed on the ground that the trial judge misstated the "relevance" test, by failing to state the "legal relevance" component of the test (i.e., weighing probative value vs. prejudicial effect) - The Alberta Court of Appeal dismissed the appeal - Although the trial judge misstated the test, she applied the correct test (i.e., evidence found to be both relevant and its probative value outweighed its prejudicial effect) - See paragraphs 170 to 176.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - [See Evidence - Topic 7001 ].

Evidence - Topic 7016

Opinion evidence - Expert evidence - General - Admissibility v. weight - [See Evidence - Topic 7001 ].

Evidence - Topic 7063.1

Opinion evidence - Expert evidence - Particular matters - Gang membership or culture - [See Evidence - Topic 7001 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See Evidence - Topic 4241 ].

Cases Noticed:

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 7].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258, refd to. [para. 56].

R. v. Lewis (I.A.) (2009), 256 O.A.C. 268; 249 C.C.C.(3d) 265; 2009 ONCA 874, refd to. [para. 62].

R. v. Michaud (F.) (2000), 224 N.B.R.(2d) 371; 574 A.P.R. 371; 144 C.C.C.(3d) 62 (C.A.), refd to. [para. 62].

R. v. Barembruch (R.W.) (1997), 96 B.C.A.C. 215; 155 W.A.C. 215; 119 C.C.C.(3d) 185 (C.A.), refd to. [para. 62].

R. v. Saleh (F.) (2013), 314 O.A.C. 60; 2013 ONCA 742, refd to. [para. 62].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 84].

R. v. Baldree (C.), [2013] 2 S.C.R. 520; 445 N.R. 247; 306 O.A.C. 1; 2013 SCC 35, refd to. [para. 84].

R. v. Youvarajah (Y.), [2013] 2 S.C.R. 720; 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to. [para. 85].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 100].

R. v. Mapara (S.) et al. (2004), 179 B.C.A.C. 92; 295 W.A.C. 92; 180 C.C.C.(3d) 184; 2003 BCCA 131, refd to. [para. 115].

R. v. Simpson (C.), (2007), 231 O.A.C. 19; 2007 ONCA 793, refd to. [para. 120].

R. v. Oliynyk (D.J.) et al. (2008), 253 B.C.A.C. 253; 425 W.A.C. 253; 232 C.C.C.(3d) 411; 2008 BCCA 132, refd to. [para. 120].

R. v. N.Y. (2012), 298 O.A.C. 297; 113 O.R.(3d) 347; 2012 ONCA 745, refd to. [para. 122].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 123].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 123].

R. v. Hape, 2002 CarswellOnt 185, refd to. [para. 124].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 124].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 124].

R. v. Lam (T.K.) et al. (2005), 389 A.R. 324; 2005 ABQB 121, refd to. [para. 124].

R. v. Barnes, [2007] O.J. No. 468, refd to. [para. 124].

R. v. Wilder (D.M.), [2003] B.C.T.C. 1840; 2003 BCSC 1840, refd to. [para. 124].

R. v. Ferris (J.M.) (1994), 149 A.R. 1; 63 W.A.C. 1; 1994 ABCA 20, refd to. [para. 136].

R. v. Cador (S.C.) (2010), 487 A.R. 93; 495 W.A.C. 93; 2010 ABCA 232, refd to. [para. 142].

R. v. Yates (W.F.) (2011), 499 A.R. 252; 514 W.A.C. 252; 2011 ABCA 43, leave to appeal denied (2012), 435 N.R. 384 (S.C.C.), refd to. [para. 142].

R. v. Hunter (N.) (2001), 146 O.A.C. 390; 54 O.R.(3d) 695 (C.A.), refd to. [para. 143].

R. v. MacKenzie, [1993] 1 S.C.R. 212; 146 N.R. 321; 118 N.S.R.(2d) 290; 327 A.P.R. 290, refd to. [para. 149].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, dist. [para. 153].

R. v. Svekla (T.G.) (2011), 505 A.R. 252; 522 W.A.C. 252; 2011 ABCA 154, refd to. [para. 154].

Abbott and Haliburton Co. Ltd. et al. v. WBLI Chartered Accountants (2015), 470 N.R. 324; 360 N.S.R.(2d) 1; 1135 A.P.R. 1; 383 D.L.R.(4th) 429; 2015 SCC 23, refd to. [para. 175].

R. v. Araujo (A.), [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. 189].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 202].

R. v. Pires (F.B.) - see R. v. Lising (R.) et al.

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. 207].

R. v. Thompson et al., [1990] 2 S.C.R. 1111; 114 N.R. 1, refd to. [para. 211].

R. v. Montoute (1991), 113 A.R. 95; 62 C.C.C.(3d) 481 (C.A.), refd to. [para. 213].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 214].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 215].

Alderman v. United States (1969), 394 U.S. 165, refd to. [para. 216].

R. v. Shayesteh (S.) (1996), 94 O.A.C. 81; 111 C.C.C.(3d) 225 (C.A.), refd to. [para. 220].

R. v. Cheung (Y.W.) (1997), 97 B.C.A.C. 161; 157 W.A.C. 161; 119 C.C.C.(3d) 507 (C.A.), refd to. [para. 221].

R. v. Rendon (1998), 140 C.C.C.(3d) 12; 33 C.R.(5th) 311 (Que. C.A.), refd to. [para. 221].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 229].

R. v. Morelli - see R. v. U.P.M.

R. v. Grabowski, [1985] 2 S.C.R. 434; 63 N.R. 32, refd to. [para. 236].

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. 243].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 250].

R. v. Cohen (1983), 5 C.C.C.(3d) 156; 148 D.L.R.(3d) 78 (B.C.C.A.), refd to. [para. 257].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161, refd to. [para. 258].

R. v. Flintoff (P.) (1998), 111 O.A.C. 305; 126 C.C.C.(3d) 321 (C.A.), refd to. [para. 258].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 271].

R. v. Fosty and Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112, refd to. [para. 290].

R. v. Kporwodu (A.) et al. (2005), 196 O.A.C. 272; 75 O.R.(3d) 190 (C.A.), refd to. [para. 301].

R. v. Schertzer (J.) et al. (2009), 255 O.A.C. 45; 248 C.C.C.(3d) 270; 2009 ONCA 742, refd to. [para. 304].

R. v. Sapara (J.) (2001), 277 A.R. 357; 242 W.A.C. 357; 91 Alta. L.R.(3d) 28; 2001 ABCA 59, refd to. [para. 318].

R. v. Travis (C.C.) (2014), 575 A.R. 389; 612 W.A.C. 389; 2014 ABCA 217, refd to. [para. 323].

R. v. Davey (T.G.), [2012] 3 S.C.R. 828; 437 N.R. 250; 297 O.A.C. 151; 2012 SCC 75, refd to. [para. 327].

R. v. Dias (G.) (2011), 502 A.R. 156; 517 W.A.C. 156; 265 C.C.C.(3d) 34; 2010 ABCA 382, refd to. [para. 328].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 345].

R. v. Yelle (J.) et al. (2006), 384 A.R. 331; 367 W.A.C. 331 (C.A.), refd to. [para. 345].

Counsel:

A.C. Rice and T.E. Hayes, for the appellant, John Reginald Alcantara;

S.M. Renouf, Q.C., J.K. Renouf and A.L. Badari, for the appellant, Alan Peter Knapczyk;

R.C. Reimer and J.D. Martin, for the respondent.

These appeals were heard on October 30, 2014, before Côté, Costigan and Wakeling, JJ.A., of the Alberta Court of Appeal.

On August 13, 2015, the following memorandum of judgment was delivered by the Court.