R. v. Alcantara (J.R.) et al., 2012 ABQB 521

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 10, 2009
• Citations: 2012 ABQB 521;(2012), 547 A.R. 1 (QB)

R. v. Alcantara (J.R.) (2012), 547 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. SE.044

Her Majesty the Queen v. John Reginald Alcantara and Alan Peter Knapczyk

(070060157Q1; 2012 ABQB 521)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

August 17, 2012.

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 held that the accused were members of the conspiracy to traffic in cocaine. Their role was to provide Hells Angel 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.

Criminal Law - Topic 2647

Attempts, conspiracies, accessories and parties - Conspiracies - Elements of offence - The accused were charged under s. 465(1)(c) of the Criminal Code with conspiracy to commit an indictable offence (trafficking in cocaine) - The Alberta Court of Queen's Bench stated that the two elements of the offence were "(1) an agreement by two or more persons to commit a criminal offence; and (2) an intention to put their common design into effect. These essential elements of conspiracy are sometimes broken down further into three parts ... (1) an agreement by two or more persons to commit a criminal offence; (2) an intention by two or more person to agree; and (3) an intention to put this common design into effect" - See paragraphs 38 to 39.

Criminal Law - Topic 2681

Attempts, conspiracies, accessories and parties - Conspiracies - Circumstantial evidence - [See first Criminal Law - Topic 2682 ].

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - The Alberta Court of Queen's Bench stated that "in the context of criminal conspiracy, 'while acts and declarations of alleged co-conspirators might be regarded as circumstantial evidence of the existence of a conspiracy, those same acts and declarations might be considered hearsay for the purpose of establishing which individuals were members of the conspiracy' ... As such, this evidence is generally not considered hearsay for the purpose of determining whether or not a conspiracy existed, but rather is circumstantial evidence of its existence. When out-of-court acts or declarations of co-conspirators are adduced for the truth of their contents as evidence against the accused, they do amount to hearsay. However, the co-conspirator's exception to the hearsay rule permits this evidence to be used against the accused if certain conditions are met." - See paragraphs 45 and 46.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - The Alberta Court of Queen's Bench stated that "to determine whether the co-conspirator's exception to the hearsay rule applies, thereby permitting the use of such evidence against the accused, the court must apply the three-step test set out by the Supreme Court of Canada in R. v. Carter ... [which the court summarized as] 1. The trier of fact must first be satisfied beyond a reasonable doubt that the alleged conspiracy in fact existed. ... 2. If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not [the accused] is a member of the conspiracy. 3. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then [the trier of fact] must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt." - See paragraphs 47 to 48.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - The Alberta Court of Queen's Bench stated that "where the co-conspirator's exception to hearsay applies, the evidence sought to be adduced is only presumptively admissible at stage three. It remains open to the defence to challenge the necessity and reliability of the evidence. ... Evidence falling within the co-conspirator's exception to the hearsay rule is typically admissible as necessary and reliable, but in the 'rare case' where the exception fails to conform to these principles, the principled approach can override the exception to exclude the evidence." - See paragraphs 64 and 74.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - The Alberta Court of Queen's Bench stated that "the co-conspirator's exception to the hearsay rule is founded on the principle of agency. In my view, hearsay evidence should not be admitted under the co-conspirator's exception on a charge under s. 467.12 of the Code [indictable offence committed for the benefit of a criminal organization] unless it is found that the accused and the individual whose hearsay evidence is in issue were probably involved in a common unlawful design and the statements were made in furtherance of that common design or enterprise, applying the Carter analysis." - See paragraph 980.

Criminal Law - Topic 2725

Attempts, conspiracies, accessories and parties - Participation in criminal organization - Criminal organization defined - At issue was whether a group of persons engaged in a cocaine trafficking operation was a "criminal organization" as defined in s. 467.1 of the Criminal Code - The Alberta Court of Queen's Bench held that "a criminal organization must have some degree of cohesion and endurance. ... It is the structured nature of criminal organizations that sets them apart from criminal conspiracies." - The court held that the group constituted a "criminal organization" - It had the required longevity, continuity and structure - There was a measure of trust between members of the group - The court stated that "the organization had a defined structure, with Caines at the head arranging for the supply of cocaine at the multi-kilogram level, negotiating for the best price, and acting as puppet master of the organization. The group had cocaine distributors who acted as middlemen between Caines and the lower-level traffickers. Other members of the group were primarily money collectors and/or cocaine couriers. When necessary, Caines expected certain members of the group to take on additional responsibilities outside of their normal role. ... Although this is not a group that conformed to the stereotypical model of organized crime ... the criminal organization provisions of the Code cast a wider net" - See paragraphs 965, 997 to 1033.

Criminal Law - Topic 2726

Attempts, conspiracies, accessories and parties - Participation in criminal organization - Offence committed for the benefit of, at the direction of, or in association with, a criminal organization - Section 467.12 of the Criminal Code made it an offence to commit an indictable offence for the benefit of, at the direction of, or in association with, a "criminal organization" as defined in s. 467.1(1) - The Alberta Court of Queen's Bench stated that "it is not necessary for the accused to be a part of the alleged criminal organization in issue in order to be convicted of an offence under s. 467.12 ... The Crown must establish that the accused knowingly dealt with a criminal organization" - See paragraphs 969 and 972.

Criminal Law - Topic 2744

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes aiding and abetting - The Alberta Court of Queen's Bench stated that "to be a party to conspiracy to traffic in cocaine, an accused must have aided or abetted in the formation of the agreement to traffic. Aiding or abetting the trafficking itself would make the person a party to the offence of trafficking, not conspiracy" - See paragraph 42.

Criminal Law - Topic 2747

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes a party - [See Criminal Law - Topic 2744 ].

Evidence - Topic 1500

Hearsay rule - General principles and definitions - Definition and general rule - The Alberta Court of Queen's Bench stated that "hearsay has two defining features, namely: (1) it is a statement made by someone other than the person who repeats the statement while testifying in court, such that there is no opportunity to cross-examine the declarant; and (2) it is adduced to prove the truth of its contents" - See paragraph 44.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Crown sought to adduce, as against the accused, hearsay evidence in the form of wiretapped conversations between alleged co-conspirators - There was no evidence that the Crown made efforts to require or obtain the oral evidence of any of the co-conspirators (except one) - The accused argued that the hearsay evidence was accordingly neither necessary nor reliable - The Alberta Court of Queen's Bench ruled that the statements were both necessary and reliable - The court stated that "Necessity is established because those who were parties to the conversations were name or unnamed alleged co-conspirators. ... I conclude that [the alleged co-conspirators] ... were unlikely to testify about the cocaine trafficking business they allegedly were involved in against the two remaining accused who are alleged to have brought to the business the heft of their membership in the [Hells Angels]. ... the necessity to receive this evidence is supported by the fact that it is the best evidence available to demonstrate the conspiracy. ... As to the reliability requirement, ..., the declarants had little or no motive to make things appear as other than they were ... The wiretap recordings have a similar indicia of reliability as notes kept in the ordinary course of legitimate business: they were declarations made in the course of duty, reasonably contemporaneous with the events they recorded, and made by persons having knowledge of the matters recorded who had a high motivation to be accurate." - See paragraphs 89 to 92.

Cases Noticed:

R. v. Alcantara (J.R.) et al., [2009] A.R. Uned. 629; 24 Alta. L.R.(5th) 248; 2009 ABQB 524, refd to. [para. 38].

R. v. Lam (T.K.) et al., [2005] A.R. Uned. 819; 70 W.C.B.(2d) 664; 2005 ABQB 759, refd to. [para. 38].

R. v. O'Brien, [1954] S.C.R. 666, refd to. [para. 38].

R. v. Steinhubl (J.K.) (2010), 492 A.R. 1; 2010 ABQB 602, refd to. [para. 39].

R. v. Trieu (B.) (2008), 429 A.R. 200; 421 W.A.C. 200; 2008 ABCA 143, refd to. [para. 42].

R. v. James (W.A.) et al. (2007), 251 N.S.R.(2d) 255; 802 A.P.R. 255; 216 C.C.C.(3d) 490; 2007 NSCA 19, affd. [2009] 1 S.C.R. 146; 383 N.R. 329; 273 N.S.R.(2d) 388; 872 A.P.R. 388, refd to. [para. 44].

R. v. Chang (A.) and Kullman (G.) (2003), 170 O.A.C. 37; 173 C.C.C.(3d) 397 (C.A.), refd to. [para. 46].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [para. 47].

R. v. Wu (2010), 266 C.C.C.(3d) 482; 2010 ABCA 337, refd to. [para. 47].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 48].

R. v. Maugey (C.) et al. (2000), 133 O.A.C. 255; 146 C.C.C.(3d) 99 (C.A.), refd to. [para. 60].

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. 65].

R. v. Lam (T.K.) (2005), 389 A.R. 324; 2005 ABQB 121, refd to. [para. 65].

R. v. Pelletier (E.R.) et al. (1999), 130 B.C.A.C. 300; 211 W.A.C. 300; 1999 BCCA 678, refd to. [para. 66].

R. v. Pilarinos (D.) et al., [2002] B.C.T.C. 855; 2 C.R.(6th) 273; 2002 BCSC 855, refd to. [para. 66].

R. v. Mapara (S.) et al. (2003), 179 B.C.A.C. 92; 295 W.A.C. 92; 180 C.C.C.(3d) 184; 2003 BCCA 131, affd. [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. 66].

Insurance Corp. of British Columbia v. Sun et al., [2003] B.C.T.C. 1059; 230 D.L.R.(4th) 470; 2003 BCSC 1059, refd to. [para. 66].

R. v. Ticknovich (N.M.) (2003), 343 A.R. 243; 2003 ABQB 854, refd to. [para. 66].

R. v. Wilder (D.M.), [2003] B.C.T.C. 1840; 2003 BCSC 1840, affd. (2006), 220 B.C.A.C. 255; 362 W.A.C. 255; 2004 C.C.C.(3d) 332; 2006 BCCA 1, refd to. [para. 66].

R. v. Lindsay (S.P.) et al., [2005] O.T.C. 44 (Sup. Ct.), refd to. [para. 66].

R. v. Oliynyk (D.J.) et al., [2005] B.C.T.C. 881; 2005 BCSC 881, affd. (2008), 253 B.C.A.C. 253; 425 W.A.C. 253; 232 C.C.C.(3d) 411; 2008 BCCA 132, refd to. [para. 66].

R. v. Abu-Sharife (M.S.), [2006] B.C.T.C. Uned. D95; 2006 BCSC 902, refd to. [para. 66].

R. v. Abu-Sharife (M.S.), [2006] B.C.T.C. Uned. D96; 2006 BCSC 923, refd to. [para. 66].

R. v. Barnes (E.), [2007] O.T.C. 289 (Sup. Ct.), refd to. [para. 66].

R. v. Simpson (C.) (2007), 231 O.A.C. 19; 230 C.C.C.(3d) 542; 2007 ONCA 793, leave to appeal denied (2008), 387 N.R. 394; 230 C.C.C.(3d) 542 (S.C.C.), refd to. [para. 66].

R. v. Giles (D.F.) et al., [2007] B.C.T.C. Uned. I29; 2007 BCSC 1894, refd to. [para. 66].

R. v. Elmerhebi, 2008 QCCQ 8450, refd to. [para. 66].

R. v. Violette (J.J.) et al., [2008] B.C.T.C. Uned. H29; 2008 BCSC 422, refd to. [para. 66].

R. v. N.Y., [2008] O.T.C. Uned. A19 (Sup. Ct.), refd to. [para. 66].

R. v. N.Y., [2008] O.T.C. Uned. A20 (Sup. Ct.), refd to. [para. 66].

R. v. Niemi (L.R.), [2008] O.T.C. Uned. T40 (Sup. Ct.), refd to. [para. 66].

R. v. M.T., [2009] O.T.C. Uned. 619 (Sup. Ct.), refd to. [para. 66].

R. v. Maguire (M.E.), [2009] B.C.T.C. Uned. 864; 2009 BCSC 864, refd to. [para. 66].

R. v. Downes, [2009] O.J. No. 6364 (Sup. Ct.), refd to. [para. 66].

R. v. Beauchamp, [2009] O.J. No. 4872 (Sup. Ct.), refd to. [para. 66].

R. v. Poirier, 2010 QCCQ 4709, refd to. [para. 66].

R. v. Heath (C.R.), [2010] O.T.C. Uned. 3161; 2010 ONSC 3161, refd to. [para. 66].

R. v. Green (A.) (2010), 302 Nfld. & P.E.I.R. 237; 938 A.P.R. 237 (Prov. Ct.), refd to. [para. 66].

R. v. Abreu-Larancuent (M.S.), [2011] O.T.C. Uned. 4384; 2011 ONSC 4384, refd to. [para. 66].

R. v. J.F. (2011), 276 O.A.C. 292; 105 O.R.(3d) 161; 2011 ONCA 220, leave to appeal granted (2011), 428 N.R. 400 (S.C.C.), refd to. [para. 66].

R. v. Ali (I.) et al., [2011] B.C.T.C. Uned. 1701; 2011 BCSC 1701, refd to. [para. 66].

R. v. Cater (K.) (2012), 315 N.S.R.(2d) 46; 998 A.P.R. 46; 2012 NSPC 15, refd to. [para. 66].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 83].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 87].

R. v. Paradis, [1934] S.C.R. 165, refd to. [para. 96].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 145].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 145].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 218].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258, refd to. [para. 512].

R. v. Greyeyes (E.R.), [1997] 2 S.C.R. 825; 214 N.R. 43; 152 Sask.R. 294; 140 W.A.C. 294, refd to. [para. 916].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86; 2010 SCC 13, refd to. [para. 923].

R. v. Dooley (E.A.) (2009), 257 O.A.C. 150; 249 C.C.C.(3d) 449; 2009 ONCA 910, leave to appeal denied (2010), 410 N.R. 393 (S.C.C.), refd to. [para. 949].

R. v. Venneri (C.) (2012), 432 N.R. 54; 2012 SCC 33, refd to. [para. 950].

R. v. Atkins, 2010 ONCJ 262, refd to. [para. 960].

R. v. Sharifi (E.), [2011] O.T.C. Uned. A42; 2011 CarswellOnt 9044 (Sup. Ct.), refd to. [para. 961].

R. v. Pereira (L.S.) et al., [2008] B.C.T.C. Uned. H13; 2008 BCSC 184, refd to. [para. 969].

R. v. Koufis, [1941] S.C.R. 481, refd to. [para. 976].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 467.1(1) [para. 955]; sect. 467.12 [para. 954]. Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2003) (Looseleaf), pp. 140 [para. 61]; 616, 617 [para. 213].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (5th Ed. 2008), p. 157 [para. 50].

Counsel:

Simon Renouf, Q.C., and J.K. Renouf, for Alan Peter Knapczyk;

A. Clayton Rice, for John Reginald Alcantara;

Dennis C. Hrabcak (Public Prosecution Service of Canada), for the Crown.

This matter was heard between December 10, 2009, and June 27, 2012, before Greckol, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on August 17, 2012.