Court of Queen's Bench of Alberta

Court of Queen’s Bench of Alberta

Citation: R v Alcantara, 2012 ABQB 521

Date: 20120817

Docket: 070060157Q1

Registry: Edmonton

Between:

Her Majesty the Queen

- and -

John Reginald Alcantara and Alan Peter Knapczyk

Accused

Editorial Notice: On behalf of the Government of

Alberta personal data identifiers have been removed

from this unofficial electronic version of the judgment.

_______________________________________________________

Reasons for Judgment of the

Honourable Madam Justice S.J. Greckol

_______________________________________________________

I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 6

II. Judicial History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 7

III. The Crown’s Theory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 8

IV. The Investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 10

V. Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 12

VI. Count #1 - Conspiracy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 12

2012 ABQB 521 (CanLII)

Page: 2

A. The Charge.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 12

B. The Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 12

1. Legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 12

2. The elements of conspiracy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 13

3. Party liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 15

4. The co-conspirator’s exception to the hearsay rule. . . . . . . . . . . . . Page: 15

C. Step One - Did a Conspiracy Exist?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 31

1. Evidence on context.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 31

(a) Production, packaging, distribution, pricing, consumption

patterns, jargon and other matters relating to cocaine in 2005-

2006. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 31

(b) Code words used in cocaine trafficking.. . . . . . . . . . . . . . . Page: 34

(d) Characteristics of Hells Angels Motorcycle Club. . . . . . . . Page: 36

(i) Evidence of Mr. Lemieux. . . . . . . . . . . . . . . . . . . . Page: 36

(ii) Arguments of the Accused.. . . . . . . . . . . . . . . . . . . Page: 41

(iii) Weight to be given to Mr. Lemieux’s evidence.. . . Page: 41

2. Personal connections between the alleged co-conspirators. . . . . . . Page: 43

(a) Alcantara’s concessions.. . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 43

(b) Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 44

(d) Other items found during searches. . . . . . . . . . . . . . . . . . . Page: 48

(e) Intercepted communications. . . . . . . . . . . . . . . . . . . . . . . . Page: 48

(f) Seen Together.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 51

(g) Involvement with HAMC. . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 53

(i) Caines.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 53

(ii) Alcantara. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 55

(iii) Knapczyk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 59

(iv) LePoidvin.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 60

(v) Cantrill. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 61

(vi) Mannarino. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 61

(vii) Sukys. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 62

(viii) Anthony Saunders. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 62

(h) Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 63

3. Seizures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 63

(a) September 15, 2005 - McDonald’s Fort McMurray residence

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 63

(b) October 27, 2005 - Flight’s vehicle stop. . . . . . . . . . . . . . . Page: 66

(d) November 15, 2005 - Van Den Hurk shooting.. . . . . . . . . . Page: 67

(e) November 24, 2005 - Vehicle stop of Marche and Weiss

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 68

2012 ABQB 521 (CanLII)

Page: 3

(f) December 1, 2005 - Search of King rental property, Fort

McMurray. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 69

(g) December 14, 2005 - Search of Caines’ Fort McMurray residence

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 71

(h) January 17, 2006 - Cardinal search. . . . . . . . . . . . . . . . . . Page: 72

(i) January 19, 2006 - Search of Alcantara. . . . . . . . . . . . . . . Page: 74

(j) February 9, 2006 - Search of Alcantara’s Edmonton residence

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 74

(k) March 4, 2006 - Farhan Sattar vehicle stop near Lake Louise

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 75

(l) May 31, 2006 - Search of Caines’ Calgary campsite. . . . . Page: 76

(m) May 31, 2006 - Search of Caines’ Fort McMurray residence

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 76

(n) May 31, 2006 - Search of Caines’ Calgary residence. . . . . Page: 78

(o) May 31, 2006 - Search of Ricco King’s residence.. . . . . . . Page: 81

(p) June 28, 2006 - Search of Weiss’ room at Podollan Inn & Rez, Fort

McMurray. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 81

4. Marche’s evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 81

(a) Evidence from the preliminary inquiry. . . . . . . . . . . . . . . . Page: 81

(i) Summer 2004 to Summer 2005. . . . . . . . . . . . . . . . Page: 82

(ii) July 2005 - Showgirls incident.. . . . . . . . . . . . . . . . Page: 83

(iii) The group.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 88

(iv) Marche obtaining drugs. . . . . . . . . . . . . . . . . . . . . . Page: 91

(v) Payment for the drugs. . . . . . . . . . . . . . . . . . . . . . . Page: 95

(vi) September 15, 2005 - McDonald seizure.. . . . . . . . Page: 96

(vii) October 27, 2005 - Flight’s vehicle stop. . . . . . . . . Page: 97

(viii) November 10, 2005 - Caines’ vehicle stop. . . . . . . Page: 97

(ix) November 24, 2005 - Marche and Weiss’ Red Deer vehicle

stop.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 97

(x) December 1, 2005 - Eymundson Drive seizure. . . . Page: 98

(xi) January 17, 2006 - Cardinal search. . . . . . . . . . . . . Page: 99

(xii) Drug use and criminal record.. . . . . . . . . . . . . . . . . Page: 99

(b) Defence concerns with Marche’s evidence. . . . . . . . . . . . . Page: 99

(i) September 15, 2005 - MacDonald seizure.. . . . . . Page: 101

(ii) Stolen cocaine. . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 102

(iii) Payment to Caines. . . . . . . . . . . . . . . . . . . . . . . . . Page: 103

(iv) Payment given to Flight. . . . . . . . . . . . . . . . . . . . . Page: 103

(v) Caines’ distributors expecting cocaine but they had to wait

for more than a week after Flight seizure.. . . . . . . Page: 105

(vi) Caines tells Bird to collect his “thing” from Cardinal

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 111

2012 ABQB 521 (CanLII)

Page: 4

(vii) Hoskins acted as a courier and bad cocaine incident

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 111

(viii) November 23 and 24, 2005 - Marche and Weiss’ trip to

Calgary and vehicle stop. . . . . . . . . . . . . . . . . . . . Page: 113

(d) Conclusion on Marche Evidence. . . . . . . . . . . . . . . . . . . . Page: 117

5. Conclusion on whether there was a conspiracy. . . . . . . . . . . . . . . Page: 121

D. Step Two - Probable Membership in the Conspiracy. . . . . . . . . . . . . . . . Page: 122

1. Caines.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 122

(a) Assets and lack of employment. . . . . . . . . . . . . . . . . . . . . Page: 122

(b) Other evidence consistent with membership in conspiracy to traffic

in cocaine.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 123

2. McDonald. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 127

3. Cardinal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 128

4. Geebs (Bird).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 129

5. Gregoire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 130

6. Flight. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 131

7. Hoskins. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 132

8. Caines Sr.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 133

9. Penton. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 134

10. Ricco King. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 135

11. The Sattars. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 137

12. Van Den Hurk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 138

13. Alcantara and Knapczyk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 139

(a) Crown argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 139

(b) Alcantara’s argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 139

(d) Marche’s evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 140

(e) Walker evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 140

(f) Alcantara and Knapczyk were associated with the HAMC, July 1,

2005 - March 31, 2006.. . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 141

(g) Evidence of Alcantara’s probably membership in the conspiracy

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 142

(i) General.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 142

(ii) Intercepted communications and surveillance. . . . Page: 142

(iii) Conclusion on Alcantara’s probable membership in the

conspiracy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 150

(h) Evidence of Knapczyk’s probable membership in the conspiracy

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 151

(i) Intercepted communications and surveillance. . . . Page: 151

(ii) Conclusion on Knapczyk’s probable membership in the

conspiracy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 156

E. Step Three - Proof Beyond a Reasonable Doubt of Membership. . . . . . . Page: 157

1. Tabs 1 to 18 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 157

2012 ABQB 521 (CanLII)

Page: 5

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 157

(b) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 159

2. Tabs 19 to 31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 160

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 160

(b) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 161

3. Tabs 38-65. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 162

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 162

(b) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 164

4. Tabs 66 to 68. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 167

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 167

(b) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 167

5. Tab 73 to 85. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 168

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 168

(b) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 168

6. Tabs 84, 86, 129.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 169

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 169

(b) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 169

7. Tab 129. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 170

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 170

(b) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 170

8. Tabs 175, 190, 195, 197.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 171

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 171

(b) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 171

9. Tabs 214, 220, 235, 255, 256, 258, 272, 291.. . . . . . . . . . . . . . . . Page: 172

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 172

(b) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 172

10. Tabs 305 to 369. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 173

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 173

(b) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 173

11. Tabs 369 to 399. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 173

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 173

(b) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 174

12. Tabs 409 to 413. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 176

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 176

(b) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 177

13. Tabs 414 to 417. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 179

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 179

(b) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 179

14. Tabs 422 - 464. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 179

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 179

15. Tabs 434 to 464. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 182

(a) Arguments of the parties. . . . . . . . . . . . . . . . . . . . . . . . . . Page: 182

(b) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 184

2012 ABQB 521 (CanLII)

Page: 6

F. Conclusion on Whether Alcantara and Knapczyk were Members of the

Conspiracy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 187

VII. Count # 2 - Trafficking in Cocaine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 189

A. The Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 189

B. Arguments of the Crown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 191

C. Arguments of the Defence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 192

D. The Evidence of Trafficking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 192

E. The Evidence Against Alcantara. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 194

F. The Evidence Against Knapczyk.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 194

G. Conclusion on Whether Alcantara or Knapczyk Trafficked in Cocaine

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 195

VI. Count #3 - Committing an Indictable Offence for the Benefit of a Criminal Organization

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 195

A. The Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 195

1. Elements of the offence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 196

(a) Existence of a criminal organization . . . . . . . . . . . . . . . . Page: 197

(b) In association with, at the direction of, for the benefit of

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 199

2. Co-Conspirators' exception to hearsay in criminal organization

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 200

B. Crown’s Arguments.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 202

C. Defence Arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 203

D. Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 205

1. Criminal organization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 205

(a) Longevity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 205

(b) Structure and membership. . . . . . . . . . . . . . . . . . . . . . . . . Page: 205

(d) Business and personal relationships. . . . . . . . . . . . . . . . . Page: 206

(e) Profit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 207

(f) Trust among members. . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 207

(g) Buying and selling cocaine outside of the group.. . . . . . . Page: 208

(h) Violence and threats of violence to protect the organization and its

business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 209

(i) Caines directing the organization. . . . . . . . . . . . . . . . . . . Page: 210

(j) Territory, price fixing and protection. . . . . . . . . . . . . . . . Page: 210

(k) Conclusion on criminal organization. . . . . . . . . . . . . . . . Page: 211

2. In association with, at the direction of, for the benefit of. . . . . . . Page: 212

3. Mens rea.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 212

4. Conclusion on Count #3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 212

2012 ABQB 521 (CanLII)

Page: 7

VIII. Conclusions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page: 213

I. Introduction

[1] This prosecution was the result of a joint forces police investigation involving the

Edmonton and Fort McMurray Drug Sections of the Royal Canadian Mounted Police [RCMP] as

well as the Edmonton Police Service [EPS]. The investigation, referred to as Project Koker, also

engaged the Edmonton Integrated Proceeds of Crime [IROC] Unit.

[2] The investigation began about February 7, 2005.

[3] As a result of the investigation the two Accused, John Reginald Alcantara [Alcantara] and

Alan Peter Knapczyk [Knapczyk], together with Jeffrey Mark Caines [Caines] were jointly

charged with committing an offence contrary to s 465(1)(c) of the Criminal Code [Code].

Specifically, they were charged with conspiring, between July 1, 2005 and March 31, 2006, at or

near Fort McMurray, Calgary, Edmonton and elsewhere in Alberta, with Aaron Pat McDonald

[McDonald], Jody Smith [Smith], Michael Francis Marche [Marche], Cal Gregoire [Gregoire],

Jeremy Cardinal [Cardinal], Charles Weston Flight [Flight], John Norman Caines [Caines Sr.],

Ricco King, Melissa Diane King, Mark Andrew Hoskins [Hoskins], Farhan Sattar, Kamran

Sattar, James Richard Correia [Correia], Patrick Felix [Felix], Anthony Saunders [Saunders],

Beau Yakimishyn [Yakimishyn], Josh Penton [Penton], Nicholas Bela Van Den Hurk [Van Den

Hurk] and with persons unknown, to unlawfully traffic in cocaine contrary to s 5(1) of the

Controlled Drugs and Substances Act [CDSA].

[4] The Accused and Caines also were jointly charged with trafficking in cocaine, between

July 1, 2005 and March 31, 2006, at or near Fort McMurray, contrary to s 5(1) of the CDSA.

[5] Further, the Accused and Caines were jointly charged with trafficking and conspiring to

traffic in cocaine, between August 22, 2005 and February 14, 2006, at or near Fort McMurray,

Edmonton, and elsewhere in Alberta, for the benefit of, at the direction of, or in association with

a criminal organization of at least three persons, contrary to s 467.12 of the Code. The persons

listed included Caines, McDonald, Marche, Gregoire, Cardinal, Flight, Hoskins, and persons

unknown.

[6] On October 7, 2011, Caines was severed from the Indictment and the charges against him

were resolved before another judge.

[7] By way of a March 6, 2008 notice of intention under s 189(5) of the Code, the Crown

gave notice that it would seek to introduce 464 of the intercepted private communications into

evidence at the trial of the Accused. On September 15, 2010, it served the Accused with a revised

notice of intention which listed 13 fewer intercepted private communications than the original

notice.

2012 ABQB 521 (CanLII)

Page: 8

II. Judicial History

[8] Included among the rulings given in this case are:

(a) The Accused’s application for a stay of proceedings based on unreasonable

delay pursuant to ss 7, 11(b), 24(1) of the Charter was dismissed February

14, 2011 (R v Caines, 2011 ABQB 82, 43 Alta LR (5th) 226 [Delay

Decision]).

(b) The Accused’s application for a stay of proceedings based on abuse of

process and breach of their fair trial interests pursuant to s 7 of the Charter

was granted in part on November 10, 2011. The remedy granted was

exclusion of communications intercepted in breach of live monitoring

conditions: R v Caines, 2011 ABQB 692, 518 AR 227 [Stay Decision]).

on a subfacial challenge to the affiant’s affidavit was dismissed on

November 21, 2011 (R v Alcantara, 2011 ABQB 719, 521 AR 130

[Garofoli Decision]).

(d) The Accused’s application to exclude intercepted communications based

on breaches of ss 7, 8, and 11(b) of the Charter by the fashion in which the

authorizations were obtained and implemented was dismissed on January

13, 2012 (R v Alcantara, 2012 ABQB 31, 521 AR 143; Addendum: 2012

ABQB 354 [collectively the Exclusion Decision]).

(e) The Accused’s application for a declaration that ss 185(1.1) and 186(1.1)

of the Criminal Code are of no force and effect as being contrary to s 8 of

the Charter and therefore the interceptions were not authorized by law was

dismissed on January 27, 2012 (R v Alcantara, 2012 ABQB 73, 521 AR

221 [Constitutional Decision]).

(f) The Crown’s application for admission of preliminary inquiry transcripts

of a deceased Crown witness was granted on April 2 2012 (R v Alcantara,

2012 ABQB 219 [Marche Decision]).

(g) The Crown’s application to qualify retired S/Sgt. Jacques Lemieux as an

expert on the Hells Angels Motorcycle Club was granted on April 3, 2012

(R v Alcantara, 2012 ABQB 225 [Qualifying Expert Decision]).

(h) The Accused’s application for a declaration that their arrests and the

seizure of Hells Angels Motorcycle Club vests and contents incidental to

2012 ABQB 521 (CanLII)

Page: 9

their arrests were contrary to s 8 of the Charter was granted on May 23

2012 (R v Alcantara, 2012 ABQB 341 [Search and Seizure Decision]).

III. The Crown’s Theory

[9] The Crown’s theory is that Alcantara and Knapczyk conspired with Caines and the other

unindicted co-conspirators to traffic significant quantities of cocaine in the Fort McMurray area

at the kilogram and multiple kilogram level. It alleges that the conspiracy had two components.

[10] The first was the drug distribution operation, which consisted of a number of individuals,

including Caines. The Crown contends that Caines was the head of that operation and negotiated

the supply of cocaine to various distributors, including Marche, McDonald, Cardinal and

Gregoire. The Crown maintains the operation also involved couriers who transported cocaine

shipments and drug proceeds on behalf of Caines. Those individuals included Flight, Hoskins

and others. In addition, the operation included suppliers, the individuals from whom Caines

purchased the cocaine for the purpose of supplying it to his distributors. The Crown alleges the

suppliers included Van Den Hurk of the greater Vancouver area and Farhan Sattar, Kamran

Sattar and Ricco King of the Calgary area.

[11] The Crown theorizes that Caines negotiated the purchase of cocaine shipments from

various suppliers and would then instruct his couriers to pick up, pay for and transport the

cocaine shipments to the Fort McMurray area. Once the shipments arrived at or near Fort

McMurray, Caines would arrange to have specified distributors store the cocaine shipments and

distribute the cocaine to individual distributors. Caines would instruct the distributor storing the

cocaine who it was to be provided to and how much cocaine each distributor was to receive.

Caines sold the cocaine to the individual distributors at a specified price. The distributor(s)

storing the shipment would distribute the cocaine to the individual distributors as instructed by

Caines.

[12] After having supplied cocaine to his distributors, Caines would then seek payment from

the individual distributors. Generally, he collected his payment by instructing couriers to collect

it from the individual distributors. In this way, Caines maintained as hands-off an approach as

possible to the drugs themselves. The individual distributors would then sell their cocaine on

their own, seeking whatever profit they could. It is the Crown’s theory that this distribution

operation constituted Caines’ criminal organization, involving a group of three or more persons,

including Caines, his distributors and his couriers, and whose main purpose was the trafficking of

cocaine and conspiracy to traffic in cocaine.

[13] According to the Crown’s theory, the second component of the conspiracy was an

exclusivity agreement. The Crown suggests that in May or June 2005, Caines entered into an

agreement with members of the Nomads chapter of the Hells Angels Motorcycle Club [HAMC],

including Lee LePoidvin [LePoidvin], a prospect of the chapter at the time, and that pursuant to

2012 ABQB 521 (CanLII)

Page: 10

that agreement, Caines was promised the exclusive rights to supply cocaine to his distributors in

a specified geographical area in Fort McMurray. The agreement was to prevent or remove anyone

competing with Caines in supplying cocaine in that geographical area and to prevent individuals

supplying cocaine in adjacent areas from undercutting the prices being charged for cocaine by

Caines and his distributors. The agreement also encompassed protection of Caines and his

distributors from individuals who threatened them or attempted to steal from their cocaine

distribution operation. The Crown contends that, in return, Caines paid a $20,000 weekly fee or

tax to the individuals alleged. The reputation of the HAMC was used to assist in enforcing the

agreement.

[14] The Crown’s theory is that Alcantara and Knapczyk entered the conspiracy in August

2005, thereby assisting Caines’ criminal organization. They did so by agreeing with Caines to

take over and enforce the exclusivity agreement to assist Caines in distributing cocaine in the

Fort McMurray area. The Crown alleges that Alcantara was a prospect of the HAMC’s

Edmonton chapter at the time, while Knapczyk was a full member of the chapter and Alcantara’s

chapter sponsor. It asserts they used their membership in the HAMC and its reputation to enforce

the agreement.

[15] According to the Crown, Alcantara was more of a front man in the arrangement,

collecting the weekly fee from Caines and enforcing the terms of the agreement. Knapczyk was

more of the authority behind the scenes, using the HAMC to enforce the agreement, although it

alleges he did participate in enforcing the terms of the agreement as well.

[16] The Crown’s theory is that the switch from LePoidvin to Alcantara and Knapczyk did not

occur without disagreement from the Nomad chapter. However, it says that Alcantara, with

assistance from Knapczyk, won control over enforcement of the agreement. It contends the

agreement between Caines, Alcantara and Knapczyk continued from at least August 23, 2005 to

February 14, 2006.

IV. The Investigation

[17] The investigation began on or before February 7, 2005, with S/Sgt. Greidanus of the

RCMP in command and Sgt. Mark Anderson (then Cpl. Anderson) as lead investigator.

Throughout the course of the investigation, which ran until November 2006, the RCMP used

various techniques including searches of electronic databases, physical surveillance, informants,

dialed number recorder [DNR] warrants, tracking device warrants, video surveillance warrants

and search warrants obtained pursuant to the Code and the CDSA.

[18] DNRs ran from February 22, 2005 to May 15, 2005 and were hooked up to Alcantara’s

main number.

2012 ABQB 521 (CanLII)

Page: 11

[19] Marche served as an informant for the RCMP through part of 2005 and 2006, and

provided a number of witness statements to the police.

[20] In June 2005, the police monitored activities at the HAMC’s clubhouse at 120 Street and

Fort Road in Edmonton and during one of their motorcycle rides to Grande Prairie.

[21] The RCMP obtained five authorizations to intercept private communications as part of

the Project Koker investigation (WT1709, WT1712 and WT1713). Both WT1712 and WT1713

were comprised of two mirror authorizations; one based on ss 185(1) and 186(1) of the Code,

reliant on investigative necessity, and the other based on ss 185(1.1) and 186(1.1) of the Code,

reliant on an allegation of criminal organization. Sergeant Anderson swore the affidavits in

support of the wiretap authorizations.

Date of Affidavit

/Authorization

Authorization Number Granted

Date When

Authorizations

in Place

Aug. 22, 2005/

Aug.23, 2005

WT1709 Slatter J Aug. 23, 2005 -

Oct. 21 2005

Oct. 13, 2005/

Oct. 17, 2005

WT1712 (two

concurrent

authorizations)

Slatter J Oct. 18, 2005 -

Dec. 16, 2005

Dec. 13, 2005/

Dec. 14, 2005

WT1713 (two

concurrent

authorizations)

Slatter J Dec. 16, 2005 -

Feb. 13, 2006

[22] Sergeant Anderson testified that Alcantara was the target of WT1709 and interceptions

were permitted on cell phones, house phones and vehicles. Alcantara continued to be a target of

WT1712. Additional targets included Knapczyk, Flight, Caines, Yakimishyn and Correia.

Alcantara and Yakimishyn were maintained as targets in WT1713 and Sean David Critch

[Critch] was added. Knapczyk, Caines, Flight and Correia were dropped as principal known

persons, and became other known persons.

[23] Pursuant to the authorizations, the police intercepted some 51,733 private

communications (not including cell block interceptions) from August 23, 2005 to February 13,

2006. A compact disk containing the recording of over 350 of the private communications

intercepted in Project Koker, in audio form, was entered as an exhibit and played in court. A

copy of the written transcripts of the communications recorded on the compact disk also was

entered as an exhibit.

[24] Surveillance continued through the remainder of 2005 and into 2006, until takedown day

on November 28, 2006.

2012 ABQB 521 (CanLII)

Page: 12

[25] In 2005 and 2006, an RCMP proceeds of crime investigator swore informations to obtain

financial records for Alcantara, Caines, Yakimishyn, and related businesses.

[26] Various searches of residences, vehicles and personal searches were conducted by the

police pursuant to warrants and in connection with the arrests of the Accused and other alleged

co-conspirators.

[27] On November 24, 2006, two separate Informations were sworn (Docket Nos.

061444279P1 and 061444l47P1) in these proceedings. Alcantara was charged in both. Caines

and Knapczyk also were charged in Information No. 061444279P1.

[28] November 28, 2006 was takedown day. Alcantara and Knapczyk were arrested in

Edmonton. The police also arrested a number of other persons at various locations in Alberta and

other parts of Canada who were charged in multiple separate proceedings.

[29] Ricco King, Farhan Sattar, Kamran Sattar and Melissa Diane King were charged with

various drug related offences in a prosecution referred to as "Koker C."

[30] On December 5, 2006, Caines turned himself in to the police.

[31] On January 8, 2007, Information No. 070060157P1 was sworn as a replacement for

Information No. 061444279P1. Caines, Alcantara and Knapczyk were jointly charged in this new

Information with conspiracy to traffic in cocaine contrary to s 5(1) of the CDSA and s 465(1)(c)

of the Code and with trafficking in cocaine contrary to s 5(1) of the CDSA. Caines also was

charged in a separate count with a criminal organization offence contrary to s 467.13 of the Code.

Alcantara and Knapczyk were jointly charged with a criminal organization offence contrary to s

467.12 of the Code. The current prosecution is referred to as "Koker A."

[32] On December 4, 2007, Information No. 071521769P1 was sworn as a replacement for

Information No. 061444147P1. In that Information, Alcantara was jointly charged with

Yakimishyn, Critch, Derek Albert Ezekiel and Nicholas James Roberts with conspiracy to traffic

in cocaine contrary to s 5(1) of the CDSA and s 465(l)(c) of the Code. The four accused also were

charged separately with various other drug and weapons offences. That prosecution is referred to

as "Koker B."

V. Issues

[33] The issues are whether the Crown has proven beyond a reasonable doubt that Alcantara

and Knapczyk are guilty of:

Count #1 conspiracy to traffic cocaine

2012 ABQB 521 (CanLII)

Page: 13

Count #2 trafficking cocaine

Count #3 assisting a criminal organization.

VI. Count #1 - Conspiracy

A. The Charge

[34] The Accused are jointly charged with conspiring, between July 1, 2005 and March 31,

2006, at or near Fort McMurray, Calgary, Edmonton and elsewhere in Alberta, with McDonald,

Smith, Marche, Gregoire, Cardinal, Flight, Caines Sr., Ricco King, Melissa King, Hoskins,

Farhan Sattar, Kamran Sattar, Correia, Felix, Saunders, Yakimishyn, Penton, Van Den Hurk and

with persons unknown, to unlawfully traffic in cocaine contrary to s 5(1) of the CDSA, thereby

committing an offence contrary to s 465(1)(c) of the Code.

B. The Law

1. Legislation

[35] Section 5 of the CDSA states that:

5(1) No person shall traffic in a substance included in Schedule I, II, III or IV or

in any substance represented or held out by that person to be such a

substance.

(2) No person shall, for the purpose of trafficking, possess a substance

included in Schedule I, II, III or IV.

[36] Cocaine is a substance listed under Schedule I.

[37] Section 465(1)(c) of the Criminal Code provides that:

465(1) Except where otherwise expressly provided by law, the following

provisions apply in respect of conspiracy:

indictable offence not provided for in paragraph (a) or (b) is

guilty of an indictable offence and liable to the same

punishment as that to which an accused who is guilty of

that offence would, on conviction, be liable; and...

2. The elements of conspiracy

2012 ABQB 521 (CanLII)

Page: 14

[38] In R v Alcantara, 2009 ABQB 524, 24 Alta LR (5th) 248 at para 31 (Koker B

Alcantara), Sulyma J stated that for purposes of s 465(1)(c) of the Code, a conspiracy is an

agreement between two or more persons to commit an unlawful act. In order to convict under s

465(1)(c), the Crown must prove the following two elements beyond a reasonable doubt (Koker

B Alcantara at para 32, citing R v Lam, 2005 ABQB 759 at para 25, 70 WCB (2d) 664 and R v

O'Brien, [1954] SCR 666):

(1) an agreement by two or more persons to commit a criminal offence; and

(2) an intention to put their common design into effect.

[39] These essential elements of conspiracy are sometimes broken down further into three

parts (see R v Steinhubl, 2010 ABQB 602 at para 56, 492 AR 1, referring to O'Brien):

(1) an agreement by two or more persons to commit a criminal offence;

(2) an intention by two or more persons to agree; and

(3) an intention to put this common design into effect.

[40] Sulyma J summarized the actus reus and mens rea of conspiracy as follows (Koker B

Alcantara at paras 33-39):

In R. v. Papalia; R. v. Cotroni, [1979] 2 S.C.R. 256 at 276, the court discussed

the actus reus of conspiracy, stating:

The word "conspire" derives from two Latin words, "con" and "spirare",

meaning "to breath together." To conspire is to agree. The essence of

criminal conspiracy is proof of agreement. On a charge of conspiracy the

agreement itself is the gist of the offence ... The actus reus is the fact of

agreement ... The agreement reached by the co-conspirators may

contemplate a number of acts or offences. Any number of persons may be

privy to it. Additional persons may join the ongoing scheme while others

may drop out. So long as there is a continuing overall, dominant plan there

may be changes in methods of operation, personnel, or victims, without

bringing the conspiracy to an end. The important inquiry is not as to the

acts done in pursuance of the agreement, but whether there was, in fact, a

common agreement to which the acts are referable and to which all of the

alleged offenders were privy.

There must be a meeting of the minds, a common purpose or mutuality of object

between the conspirators.

2012 ABQB 521 (CanLII)

Page: 15

The agreement does not have to be explicit. An implied or tacit agreement may

provide the actus reus of conspiracy.

The Crown need not establish that the parties to the conspiracy were in direct

communication with one another or even that they were aware of the identify of

their fellow conspirators. Nor need it prove each conspirator was aware of the

details of the common scheme, as long as it shown each "was aware of the general

nature of the common design and intended to adhere to it:" R. v. Longworth

(1982), 67 C.C.C. (2d) 554 at para. 49 (Ont. C.A.).

The Court may find that some but not all of those alleged to have been

conspirators were in fact members of the conspiracy, as long as it finds there were

at least two members of the conspiracy.

In R. v. O'Brien, [1954] S.C.R. 666, the court confirmed that the mens rea of

conspiracy consists of an actual intention on the part of the accused to agree to

pursue a common unlawful object and an intention to put the common design into

effect.

The offence is complete on the formulation of an agreement to perform the illegal

act, even if no subsequent acts in furtherance of the agreement are undertaken.

Any such acts would simply serve to prove the essential ingredient of the offence;

namely, the agreement itself: R. v. Douglas, [1991] 1 S.C.R. 301 at para. 28.

[Emphasis added.]

[41] Sulyma J explained the need to consider all of the evidence in context before coming to a

conclusion on the offence of conspiracy (Koker B Alcantara at para 142):

All of the evidence regarding the conspiracy must be considered in context.

Indeed, as stated in R. v. Ahern, it would be unusual for the Crown to be able to

garner direct evidence of persons conspiring. In most instances, as in the case

before me, the trier of fact will have to weigh each piece of evidence and consider

it in the nature of a building block in reaching a conclusion as to whether the

conspiracy has been proven beyond a reasonable doubt. As stated in [R. v.

Paradis, [1934] S.C.R. 165 at 168] the actual agreement may have to be gathered

from the cumulative effect of “several isolated doings,” each possibly having little

or no value taken by itself. Also, it is necessary to remember that the inquiry is not

as to the acts done in furtherance of the agreement, but whether in fact there was a

common agreement.

3. Party liability

2012 ABQB 521 (CanLII)

Page: 16

[42] In R v Trieu, 2008 ABCA 143 at paras 33 and 34, 429 AR 200, Costigan JA for the

Alberta Court of Appeal held 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:

It follows from these principles that for Trieu to be a party to the offence of

conspiracy to traffic in cocaine, the Crown had to prove that Trieu performed acts

for the purpose of aiding the formation of an agreement to traffic in cocaine. Acts

performed after the agreement was formed did not aid in the commission of the

offence of conspiracy on the facts of this case. Therefore, Trieu could not be a

party to the offence of conspiracy for facilitating the conspirators in attaining their

object of trafficking in cocaine. Although acts performed after the agreement was

reached could have aided in the commission of the offence of trafficking, Trieu

was not charged with the offence of trafficking.

This conclusion does not ignore the possibility that conspiracy may be an ongoing

crime. Members may leave the conspiracy and new members may join: Cotroni at

276 (S.C.R.). In an ongoing conspiracy of that nature, party liability can arise after

the initial agreement is formed if, for example, a person aids another to join the

agreement. However, no such allegation was advanced against Trieu.

4. The co-conspirator’s exception to the hearsay rule

[43] Sulyma J outlined in Koker B Alcantara at paras 40-60 how the law on conspiracy and

the law on hearsay intersect. In particular, the Crown is permitted to rely on hearsay evidence to

prove the elements of conspiracy if certain conditions are satisfied (Koker B Alcantara at para

40, citing Lam at para 26). The difficulty often lies in determining what constitutes hearsay

evidence (Koker B Alcantara at paras 41-46).

[44] 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

(Koker B Alcantara at para 41, citing R v Smith, 2007 NSCA 19, 216 CCC (3d) 490, appeal on

other issue dismissed [2009] 1 SCR 146).

[45] 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” (Koker B Alcantara at para 44, referring to

Smith at para 190). 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.

2012 ABQB 521 (CanLII)

Page: 17

[46] 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-conspirators' exception to the hearsay rule permits this evidence to be used against the accused

if certain conditions are met. In Koker B Alcantara at para 46, Sulyma J referred to the following

quote from R v Chang (2003), 173 CCC (3d) 397 at para 53 (Ont CA): "[t]he [rule] allows the

acts and declarations of an accused's alleged co-conspirators, done or made in furtherance of the

conspiracy, to be adduced as evidence against the accused."

[47] To determine whether the co-conspirators' 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, [1982] 1 SCR 938. As noted in R v Wu,

2010 ABCA 337 at para 39, 266 CCC (3d) 482 (also involving charges of trafficking in cocaine

and conspiracy to traffic in cocaine):

... the test in Carter applies to the admission of evidence of acts and statements in

furtherance of conspiracy by persons alleged to have been party to that conspiracy

as against other persons also alleged to have been party to that conspiracy even

though those acts and statements in furtherance are done in the absence of those

other persons.

[48] The Supreme Court of Canada summarized the three-step Carter test in R v Barrow,

[1987] 2 SCR 694 at para 73:

1. The trier of fact must first be satisfied beyond a reasonable doubt that the

alleged conspiracy in fact existed. [The wording used by the Supreme

Court of Canada in Carter at this stage of the test is that the trier of fact is

“to consider whether on all the evidence they are satisfied beyond a

reasonable doubt that the conspiracy charged in the indictment existed” (at

947).]

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.

2012 ABQB 521 (CanLII)

Page: 18

Step one: proof of the existence of the conspiracy

[49] In Koker B Alcantara, Sulyma J considered what the Supreme Court of Canada intended

in Carter when it said that, at the first stage of the test, the trier of fact must decide “on all the

evidence” whether the trier of fact is satisfied beyond a reasonable doubt that the conspiracy

alleged in the indictment existed. She acknowledged (at paras 49-51) that controversy exists in

the case law as to whether or not it includes only admissible evidence and not evidence

provisionally admissible under the co-conspirator’s exception. Ultimately, she concluded (at para

54) that there was really:

... no difference in result between the two views. They both accept that acts and

declarations of a co-conspirator in apparent furtherance of the conspiracy can be

considered when determining whether a conspiracy existed, as these do not

constitute hearsay for that purpose.

[50] In concluding that the acts and declarations of a co-conspirator made in furtherance of the

conspiracy are not hearsay for the purpose of deciding whether the alleged conspiracy existed at

stage one of the Carter test, Sulyma J relied on David M. Pacciocco and Lee Stuesser, the

authors of The Law of Evidence, 5th ed, (Toronto: Irwin Law Inc, 2008) at 157, and the Nova

Scotia Court of Appeal decision in Smith at para 236 (Koker B Alcantara at paras 52-53, 55):

In The Law of Evidence, 5th ed., (Toronto: Irwin Law Inc., 2008) at p. 157, the

authors David M. Pacciocco and Lee Stuesser take the position that the weight of

authority favours this second view, stating that:

It is settled that all acts and statements made by the alleged co-conspirators

in the formation of, or apparent furtherance of, a conspiracy, are included

in the phrase “all of the evidence,” and can be considered during the part

one inquiry. At first blush it may appear circular to allow statements made

by A to be used as part of the co-conspirators tests, when that test is being

employed to determine whether those very same statements by A should

be used against B during the trial. Bear this in mind, though: The issues

are different. In the part one inquiry, the issue is not whether A’s

statements in furtherance of the conspiracy can be used to prove B’s guilt,

but whether there is a conspiracy. There is nothing circular in treating

evidence differently on different issues.

The authors go on to explain that at the first stage of the inquiry, such statements

are not really hearsay at all. They are circumstantial evidence of the existence of

the conspiracy as their relevance lies in the fact they were said. They are direct

evidence of the formation or furtherance of the agreement to commit an offence.

Their admission does not depend on the truth of their content. Even where it does,

they “will tend to be statements accompanying or explaining acts done in

2012 ABQB 521 (CanLII)

Page: 19

furtherance of the conspiracy and, like statements caught by the res gestae

exceptions, their content will assist in evaluating their reliability.”

...

As noted in Smith at para. 236:

There is no dispute that, at the first step, at least all the evidence which is

relevant and otherwise admissible should be considered. This includes

non-hearsay relevant to the issue of the existence of the conspiracy and

any hearsay evidence which may be admissible under a traditional

exception or under the principled approach. In many cases, acts and

declarations of alleged co-conspirators will be admissible on one of these

bases, either because on the issue of the existence of the conspiracy, they

are non-hearsay or because they accompany and explain acts of the

declarant, or because their reception is necessary and the statements are

shown to have sufficient threshold reliability to be received under the

principled approach.

[51] Sulyma J held (Koker B Alcantara at para 57) that:

... wiretap statements of alleged co-conspirators made in the formation or

furtherance of a conspiracy are admissible to prove the conspiracy, whether

because they are circumstantial evidence rather than hearsay or because, as

hearsay, they meet the principled approach.

[52] The Alberta Court of Appeal put any uncertainty to rest in its subsequent decision in Wu.

The court confirmed (at paras 40-41) that all evidence adduced by the Crown is admissible at

stage one of the Carter test and discussed how to implement the Carter test procedurally:

In order to justify admission of acts and statements in furtherance of conspiracy as

against persons not present and not otherwise proven to have adopted such acts

and statements when making the final decision on guilt, the court must first

determine: (1) whether the conspiracy existed (based on all the evidence but

proven beyond a reasonable doubt); and (2) if so, whether the accused is a

member of that conspiracy (based only on evidence receivable against the specific

accused, and proven on a balance of probabilities). Given this hybrid burden of

proof, Carter allowed (procedurally) for provisional admission of all the evidence

and that the court could then at the end of the Crown's case determine whether

acts or declarations made by a co-conspirator in furtherance of the conspiracy

could be used as evidence against any other alleged co-conspirator.

2012 ABQB 521 (CanLII)

Page: 20

The appellants do not dispute that the trial judge was entitled to consider all the

evidence led by the Crown in determining firstly whether or not there was a

conspiracy as charged proven beyond a reasonable doubt. All the evidence was

available for the first step as to the conspiracy's existence, although only the

evidence directly implicating each appellant was available under the second stage

of the Carter test to permit the 'in furtherance' evidence to be used against that

appellant: see R. v. Sutton, [2000] 2 S.C.R. 595, 148 C.C.C. (3d) 513, 2000 SCC

50 (S.C.C.) at paras. 3-5. If all the evidence failed to prove a conspiracy as

charged, the trial judge would not need to consider the Carter test further and

would acquit. Accordingly, it would not be wrong for a trial judge to consider the

whole of the evidence, including acts and declarations 'in furtherance', on that first

issue. [Emphasis added.]

[53] If step one of the Carter test is not proven, the trier of fact does not move on to step two,

and the accused cannot be found guilty of conspiracy. If, however, the existence of the

conspiracy is proven beyond a reasonable doubt at step one, at step two of the test, the trier of

fact must consider whether or not the accused is probably a member of the conspiracy.

Step two: probable membership of the accused in the conspiracy

[54] In deciding whether the accused is a member of the conspiracy on a balance of

probabilities, the trier of fact can only consider evidence directly admissible against that accused,

although the trier of fact is free to consider that evidence in context.

[55] Such evidence may include out-of-court admissions made by the accused against the

accused’s own interests, as such admissions are presumptively admissible as a traditional

exception to hearsay (Koker B Alcantara at para 59). It also may include wiretap evidence as

explained by Sulyma J in Koker B Alcantara at para 59:

At the second stage of Carter, an admission made by A in a wiretap recording of a

telephone conversation between A and B may be used against A for the truth of its

contents. B’s statements in that conversation may be used in the case against A

only as context, i.e. as proof the statement by B was made to A.

[56] Therefore, at the second step of Carter, the accused’s acts and declarations must be

viewed within their proper context and need not be divorced from the acts and declarations of the

co-conspirators which can be of assistance in understanding the meaning of the accused's acts

and declarations.

Step three: proof of membership beyond a reasonable doubt

[57] If step two of the Carter test is not satisfied, the trier of fact does not move on to step

three, and the accused cannot be found guilty of conspiracy.

2012 ABQB 521 (CanLII)

Page: 21

[58] If, on the basis of the evidence admissible at step two, the trier of fact is satisfied beyond

a reasonable doubt that the accused is a member of the conspiracy, the accused must be found

guilty of conspiracy and there is no need to move on to step three (Koker B Alcantara at para

60). In such cases, the court need not resort to the co-conspirators' exception to the hearsay rule.

Similarly, "if there is no relevant hearsay evidence of the acts and declarations of a

co-conspirator in furtherance of the conspiracy, the accused's guilt must be proven beyond a

reasonable doubt at the second stage of Carter, if at all" (Koker B Alcantara at para 60).

[59] However, if step two only establishes the probable membership of the accused in the

conspiracy, at step three the co-conspirators' exception to hearsay applies to permit the

out-of-court acts and declarations of alleged co-conspirators to be used against the accused.

"[T]he acts and declarations of co-conspirators in furtherance of the conspiracy may be used to

prove the accused's membership beyond a reasonable doubt" (Koker B Alcantara at para 60).

[60] Only those acts or declarations made in furtherance of the conspiracy are permissible

under the co-conspirators' exception. As indicated in R v Maugey (2000), 146 CCC (3d) 99 at

paras 29 and 33, 133 OAC 255:

Acts and words in furtherance of the conspiracy are those which moved the

conspiracy forward, not narrative discussions or descriptions, or statements made

after the object of the conspiracy has been carried out, such as statements made to

the police after the fact.

... where the two appellants each gave statements to police after the alleged

conspiracy was concluded. Such statements, once ruled voluntary, are admissible

against the person who made them, but are never admissible against another

co-conspirator, as they are not made in furtherance of the conspiracy, but after the

conspiracy was completed.

[61] A statement which is simply narrative, divorced from the operation of the common

unlawful enterprise, is not made "in furtherance" of the design (Casey S Hill et al, McWilliams'

Canadian Criminal Evidence, 4 ed, looseleaf (Aurora, Ont: Canada Law Book, 2003) at ch 7 at

140). “A statement is in furtherance of the common enterprise if it has the purpose of ‘advancing

the objectives’ of the common enterprise, and is thus distinct from mere narrative” (ch 7 at 140).

Even though a statement has a narrative aspect, it may be a report by one conspirator to another

and, therefore, be an act in furtherance of the conspiracy (ch 7 at 142). Statements or acts taken to

preserve or conceal the existence of the design are made in furtherance of the objects of the

common enterprise. Where a substantive offence is alleged to have been committed as a result of

a common design, hearsay statements admissible against the accused must be "in furtherance" of

the common design to be admitted.

2012 ABQB 521 (CanLII)

Page: 22

[62] Reassurances and updates given by one member to another in the context of an ongoing

enterprise have been held to be "in furtherance" of the common design. Acts done to avoid

detection may also be within the objectives of the conspiracy and, therefore, evidence of these

acts may be admissible where the common enterprise is established.

[63] Acts and declarations made before the formation of the conspiracy or common enterprise

are not admissible for the truth of their contents or to prove the non-declarant's role. Since these

acts precede the conspiracy, there is no basis for the acts or declarations of one person to

constitute evidence against another, even though both may have become members of the

conspiracy at a later date. They may, however, be relevant to prove the origin, character and

object of the conspiracy.

Necessity and reliability

[64] As noted by Bielby J (as she then was) in Steinhubl, 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 (at

paras 55 and 80):

Even after the application of these three steps, the Court must be satisfied that the

"principled approach" requirements of necessity and reliability are met. In Starr,

the Supreme Court of Canada held that evidence falling under a traditional

hearsay exception must still be both necessary and reliable in order to be

admissible.

...

Finally, I must proceed to examine whether these hearsay statements made in

furtherance of the conspiracy have been established to be both necessary and

reliable. The co-conspirators’ exception has, as a category, been found to meet the

requirements of necessity and reliability, there being a presumption that

co-conspirators’ declarations which make it through the Carter three-step process

meet those requirements from Starr: see R. v. Mapara, 2005 SCC 23, [2005] 1

S.C.R. 358 (S.C.C.); R. v. Chang (2003), 173 C.C.C. (3d) 397, 2003 Carswell

Ont 1007 (Ont. C.A.). This presumption may be rebutted by the accused’s

demonstration of insufficient reliability and/or necessity: see R. v. Pilarinos, 2002

BCSC 855, (2002), 2 C.R. (6th) 273 at para. 68 (B.C.S.C.). No such

demonstration has been made in relation to any statement otherwise admissible in

our case. I therefore conclude that this hearsay evidence has been established to be

both necessary and reliable. [Emphasis added.]

[65] Alcantara and Knapczyk raise the question that lies at the intersection of the three-step

approach to admission of evidence under the co-conspirator’s exception to the hearsay rule in

Carter and the principled approach to the admission of hearsay evidence in R v Starr, 2000 SCC

2012 ABQB 521 (CanLII)

Page: 23

40, [2000] 2 SCR 144: whether evidence that has passed muster under the three-step Carter

analysis must also meet the requirements of necessity and reliability under the principled

exception to the hearsay. In R v Lam, 2005 ABQB 121, 389 AR 324, a cocaine trafficking

conspiracy case, Burrows J discussed this issue under the heading “When Carter Meets Starr.”

[66] Alcantara and Knapczyk argue that the requirement of necessity is not met in this case

because Caines, formerly a co-accused, as well as the other alleged unindicted co-conspirators

(aside from the deceased Marche), were not shown to be unavailable to testify. In support of this

argument, they offer a number of authorities which have considered or touched on this question

(R v Pelletier, 1999 BCCA 678, 130 BCAC 300; R v Pilarinos, 2002 BCSC 855, 2 CR (6th)

273; R v Mapara, 2003 BCCA 131, 180 CCC (3d) 184, aff’d 2005 SCC 23, [2005] 1 SCR 358;

R v Chang (2003), 173 CCC (3d) 397 (Ont CA); Insurance Corp of British Columbia v Sun,

2003 BCSC 1059, 230 DLR (4th) 470; R v Ticknovich, 2003 ABQB 854, 343 AR 243; R v

Wilder, 2003 BCSC 1840, aff’d 2006 BCCA 1, 204 CCC (3d) 332; R v Lindsay, [2005] OTC 44

(SCJ); R v Oliynyk, 2005 BCSC 881, aff’d 2008 BCCA 132, 232 CCC (3d) 411; Lam; R v Abu-

Sharife, 2006 BCSC 902 and 923; R v Barnes, [2007] OJ No 468 (SCJ) (QL); R v Simpson,

2007 ONCA 793, 230 CCC (3d) 542, leave to appeal to SCC ref’d 230 CCC (3d) 542; R v Giles,

2007 BCSC 1894; R c Elmerhebi, 2008 QCCQ 8450; R v Violette, 2008 BCSC 422; R v NY,

[2008] OJ No 2228 and 2124 (SCJ) (QL); R v Niemi, [2008] OJ No 4619 (SCJ) (QL); R v MT,

[2009] OJ No 977 (SCJ) (QL); R v Maguire, 2009 BCSC 864; R v Downes, [2009] OJ No 6364

(SCJ) (QL); Koker B Alcantara; R v Beauchamp, [2009] OJ No 4872 (SCJ) (QL); R c Poirier,

2010 QCCQ 4709; R v Heath, 2010 ONSC 3161; R v Green (201), 302 Nfld & PEIR 237;

Steinhubl; R v Abreu-Larancuent, 2011 ONSC 4384; R v JF, 2011 ONCA 220, 105 OR (3d)

232, leave to appeal to SCC granted [2011] SCCA No 291; R v Ali, 2011 BCSC 1701; and R v

Cater, 2012 NSPC 15, 315 NSR (2d) 46).

[67] Alcantara and Knapczyk rely on three cases in particular that involved declarants’ out-of-

court statements that were not admitted because necessity was not made out: Lindsay, Simpson,

and Giles.

[68] In Lindsay, the Crown alleged that Lindsay and Bonner committed extortion for the

benefit of, at the direction of, or in association with a criminal organization, the HAMC. The

Crown sought to adduce oral statements reduced to writing and wiretap transcripts of members or

affiliates of the HAMC, not only for reference by the experts on HAMC, but also for the truth of

their contents, relevant to establishing whether the HAMC is a criminal organization and its main

purposes and activities. The accused argued that the out-of-court statements should not be

admitted as they did not meet the requirements of necessity and reliability. Feurst J considered

the requirement of necessity at paras 19-24:

As the Supreme Court of Canada held in R. v. Khan, supra, the first issue is

whether reception of the hearsay statement is necessary. Necessity means

reasonably necessary, in other words the direct evidence of the witness is

unavailable despite reasonable efforts to obtain it: R. v. F. (W.J.) (1999) 138

2012 ABQB 521 (CanLII)

Page: 24

C.C.C. (3d) 1 (S.C.C.). It does not mean necessary to the prosecution's case.

Hearsay evidence does not become inadmissible because corroborative evidence

is available: R. v. Smith (1992) 75 C.C.C. (3d) 257 (S.C.C.); R. v. Wilcox (2001)

152 C.C.C. (3d) 157 (N.S.C.A.).

Necessity is met where the declarant is physically unavailable to testify, for

example because of death, absence from the jurisdiction, insanity, testimonial

incompetence, or non-compellability: R. v. B. (K.G.), supra.

The majority of the Supreme Court of Canada in R. v. B. (K.G.), supra,

recognized that necessity also may be met where the declarant is physically

available to testify, but the court cannot expect to get from him/her at trial

evidence of the same value as the prior statement. This can arise where the

witness refuses to adopt a prior inconsistent statement. It also applies where the

witness would suffer trauma if called to testify, or cannot provide a meaningful

account of events: R. v. Rockey (1996) 110 C.C.C. (3d) 481 (S.C.C.); R. v. F.

(W.J.), supra.

Fear or disinclination, without more, do not constitute necessity: R. v. F. (W.J.),

supra.

There is no presumption of necessity, and the criterion must always be considered

in the circumstances of the particular case: R. v. Rockey, supra. A judge may

ground a finding of necessity in evidence called by the prosecution, or it may be

self-evident based on what occurs at trial, for example where a vulnerable witness

would be traumatized by testifying: see R. v. F. (W.J.), supra. However, the

circumstances in which a witness is available to testify but not called and

out-of-court statements nevertheless admitted were termed "exceptional" by

Binnie J. writing for the majority in R. v. Parrott (2001) 150 C.C.C. (3d) 449

(S.C.C.) at 477.

As expressed by Lamer C.J.C. on behalf of the Supreme Court of Canada in R. v.

Smith, supra, the categories of necessity are not closed.

[69] The Crown in Lindsay sought to adduce statements made by Miller, a full member of

HAMC at the time the statements were made and president of a chapter. The statements were

made by Miller to his girlfriend or others in conversations intercepted on telephones or by room

probes, then transcribed. The Crown did not call or attempt to call Miller, nor did it show he was

physically unavailable to give evidence. The Crown relied on expert testimony to the effect that

co-operation by HAMC members with the authorities will be met with sanctions, including

violence and even death.

2012 ABQB 521 (CanLII)

Page: 25

[70] Feurst J noted that the Crown did not adduce evidence of efforts to have Miller testify, or

of his whereabouts, whether in or out of jail. She held that on the evidence before her, she was

not satisfied that hearsay was the only available means of putting the evidence before the court.

Only the statements of two deceased declarants met the criteria of necessity for the purpose

contended. However, some statements were admitted for the purposes of the expert testimony.

[71] As to reliability, Feurst J commented at para 49 that, unlike the situation in Mapara,

Lindsay was not a case where the out-of-court statements were entirely recorded using a wiretap.

[72] In Simpson, the Ontario Court of Appeal reviewed the decision of a trial judge to admit

an out-of-court hearsay oral statement made by Williams, a former co-accused and co-

conspirator, to an undercover police officer. The court held that the trial judge erred when she

admitted Williams’ evidence through the police officer without affording Simpson the

opportunity to cross-examine, since the out-of-court statements were neither necessary nor

reliable. Simpson argued that the trial judge erred in relying on the co-conspirator’s exception to

the hearsay rule when the principled approach warranted exclusion because necessity had not

been established. The court held that the Crown should have called Williams to testify; if he

denied the statements, recanted or gave inconsistent evidence, the procedure under s 9 of the

Evidence Act could have been employed.

[73] The court in Simpson neatly summarized the effect of the co-conspirator’s exception and

the principled approach, at paras 14-24:

The co-conspirators' exception to the hearsay rule allows the acts and declarations

of an accused's alleged co-conspirators, done or made in furtherance of the

conspiracy, to be adduced as evidence against the accused: R. v. Carter 1982

CanLII 35 (SCC), (1982), 67 C.C.C. (2d) 568 (S.C.C.). Following Carter,

co-conspirators’ statements will be admissible against an accused person if: (i) the

trier of fact is satisfied beyond a reasonable doubt that a conspiracy existed; and

(ii) if independent evidence, directly admissible against the accused person,

establishes on a balance of probabilities that the accused was a member of the

conspiracy.

The basic principle regarding hearsay evidence is that it is generally excluded

because it is not the best evidence, as compared to direct evidence, and since it is

not given under oath and generally cannot be tested by cross-examination, it may

be unreliable. However, hearsay evidence can be admitted if it falls under one of

the traditional exceptions to the hearsay exclusionary rule. Hearsay evidence can

also be admitted if it is shown to be necessary and reliable. Together, the

requirements of necessity and reliability make up the “principled approach” to the

admission of hearsay evidence: see R. v. Khan 1990 CanLII 77 (SCC), (1990), 59

C.C.C. (3d) 92 (S.C.C.).

2012 ABQB 521 (CanLII)

Page: 26

Later, in Starr, the Supreme Court of Canada held that the traditional categorical

exceptions to the general exclusionary rule for hearsay are to be interpreted in a

manner consistent with the principled approach to determine the admissibility of

hearsay evidence.

Starr also held that evidence falling within a traditional exception is

presumptively admissible because the exceptions typically have an inherent

component of necessity and reliability. However, when an exception fails to

conform to these principles, that is, in a “rare case”, the principled approach can

override the exception to exclude the evidence.

The issue of whether the direction in Starr, to re-evaluate the traditional hearsay

exceptions having regard to the principled approach, applied to the rule allowing

for the admissibility of co-conspirators' declarations has since been considered by

this court in Chang, and by the Supreme Court of Canada in Mapara. Both courts

concluded that if the hearsay dangers are present, then the evidence must conform

to the principled approach.

As I noted, Starr creates the basic framework for analyzing how the common law

exceptions to the rule against hearsay interact with the principled approach. This

framework is summarized succinctly by the majority in Mapara at para. 15:

(i) Hearsay is presumptively inadmissible unless it falls under an

exception to the hearsay rule. The traditional exceptions to the

hearsay rule remain presumptively in place.

(ii) A hearsay exception can be challenged to determine whether it is

supported by indicia of necessity and reliability, required by the

principled approach. The exception can be modified as necessary

to bring it into compliance.

(iii) In “rare cases”, evidence falling within an existing exception may

be excluded because the indicia of necessity and reliability are

lacking in the particular circumstances of the case.

(iv) If hearsay evidence does not fall under a hearsay exception, it may

still be admitted if indicia of reliability and necessity are

established on a voir dire.

And, as Starr pointed out, the party challenging the admissibility of evidence

falling within a traditional exception will bear the burden of showing that the

evidence should nevertheless be inadmissible.

2012 ABQB 521 (CanLII)

Page: 27

In Mapara, the Supreme Court held that the co-conspirators’ exception generally

meets the requirements of the principled approach to the hearsay rule (para. 31).

The Court, at para. 18, described how the necessity requirement is built-in to the

co-conspirator exception:

The criterion of necessity poses little difficulty. As stated in Chang [at

para. 105], “necessity will arise from the combined effect of the

non-compellability of a co-accused declarant, the undesirability of trying

alleged co-conspirators separately, and the evidentiary value of

contemporaneous declarations made in furtherance of an alleged

conspiracy.” [Emphasis added].

The requirement of reliability is also satisfied by this exception. Relying on this

court’s decision in Chang, the Chief Justice held at paras. 24, 26:

Proof that a conspiracy existed beyond a reasonable doubt and that the

accused probably participated in it does not merely corroborate the

statement in issue. Rather, it attests to a common enterprise that enhances

the general reliability of what was said in the course of pursuing that

enterprise. …

[T]he final Carter requirement, i.e., only those hearsay statements made in

furtherance of the conspiracy can be considered, provides guarantees of

reliability in the more immediate circumstances under which the statement

is made. “In furtherance” statements “have the reliability-enhancing

qualities of spontaneity and contemporaneity to the events to which they

relate” (Chang, at paras. 122-23). They have res gestae-type qualities,

being “the very acts by which the conspiracy is formulated or implemented

and are made in the course of the commission of the offence” (Chang, at

para. 123). This “minimizes the motive and opportunity for contrivance”

(Chang, at para. 124).

Nevertheless, evidence admissible under the Carter analysis is by definition

hearsay: Chang, para. 79. Thus, as was held in para. 85 in Chang:

… a statement that becomes admissible under the Carter process is

hearsay and concerns about unreliability are very real. Indeed, the dangers

attached to the use of hearsay that give rise to the general exclusionary rule

are all present in the case of a statement admitted under the Carter

process. The statement is not made under oath, is not subject to

contemporaneous cross-examination, and the trier of fact has no

opportunity to observe the declarant at the time the statement was made.

2012 ABQB 521 (CanLII)

Page: 28

So while Mapara holds that, in theory, the Carter exception satisfies the

principled approach, it is nevertheless important to test the application of the

exception to the particular circumstances for the indicia of necessity and

reliability. In “rare cases” where necessity and/or reliability are lacking, the trial

judge may exclude the hearsay statements.

[74] 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.

Chang and Mapara both were cases where the co-conspirators also were co-accused and,

therefore, could not be made Crown witnesses by compulsion.

[75] The court in Simpson commented at para 36 that:

The ultimate question to determine on this appeal, therefore, is whether the

evidentiary value of contemporaneous declarations outweighs the traditional

strong reluctance to admit out-of-court evidence, which has not been made under

oath, has not been the subject of contemporaneous cross-examination, and where

the trier of fact has no opportunity to observe the declarant at the time the

statement was made: see Chang, at para. 85.

[76] The court then held that the out-of-court statements were neither necessary, because

Williams could have been called to testify, nor reliable, given the particular circumstances in

which the statement was obtained.

[77] In Giles, the Crown sought to introduce into evidence portions of intercepted private

communications as being relevant to the essential elements of the criminal organization charge at

issue in that case. The communications involved a police agent who had infiltrated the East End

chapter of the HAMC during the police investigation. He adopted his own statements at trial. The

issue related to the others who participated in those communications. No effort was made to

secure the testimony of two of those individuals. The court found that the statements met the

reliability criteria, but at para 35 ruled that the requirement of necessity had not been met.

[78] In Lam at paras 22ff, Burrows J considered whether application of the Carter approach

ensures necessity and reliability, and concluded the Carter steps did not assure the necessity and

reliability of the wiretap evidence offered by the Crown. He went on to find that the necessity

requirement was satisfied; that some hearsay is admissible despite the availability of the

declarant and that courts have defined necessity widely to include cases where evidence of the

same value cannot be obtained from the declarant. He noted, at para 39 that the out-of-court

declarants were alleged co-conspirators, some recently convicted for participation in the drug

trafficking business at hand. He relied on Wilder at para 680 and 681, in which Romilly J, in a

similar context, found necessity was shown:

2012 ABQB 521 (CanLII)

Page: 29

Therefore, when considering the balance that must be considered to bring the

co-conspirators' exception into conformity with the principled approach, the

factual context and rationale for the exception must be considered. When

considering the factual context for the co-conspirators' rule it is clear that: 1)

conspiracy is proven by pieces of circumstantial evidence; and 2) it is a remote

possibility that a co-conspirator will confess to a court. When viewed in this light,

the co-conspirators' exception is a contextually sensitive approach to the difficulty

of proving conspiracy by other means.

I find that in light of all these factors, it is not necessary for the Crown to show

that they have made reasonable efforts to have the declarant testify. Experience

has shown time and again the remote possibility of having a co-conspirator appear

in court to respond to their part of a conspiracy. Therefore, this is an appropriate

circumstance where hearsay may be admitted more on the basis of expediency or

convenience than on the basis of necessity . . .

[79] Burrows J found that even if the declarants were brought to court to testify, it was

unlikely their evidence would approach the quality of the wiretap and that the wiretap evidence

was necessary as it was by far the best evidence of the specific activity the Crown sought to

prove. He concluded at para 44 that the wiretap evidence met the requirement of reliability as it

not only was the best available evidence of what was said, it was “ ... as close to perfect as

evidence can ever get of what was said,” although that alone was not sufficient since the calls

were offered not simply to prove that the words were uttered but also to prove the truth of those

words.

[80] Burrows J held that other indicators of reliability in this context were that the declarants

had little or no motive to make things appear as other than they were, and in the drug business

formal records are not kept. The wiretaps recordings had similar indicia of reliability as notes

kept in the ordinary course of business as the nurses’ notes held to be admissible in Ares v

Venner. They were declarations 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. By analogy to the nurses’ notes, he found that recorded wiretap

calls of people engaged in drug trafficking should be held to be reliable for the truth of their

contents.

[81] In Koker B Alcantara, Sulyma J followed the Lam reasoning. At para 57, she held that:

“...wiretap statements of alleged co-conspirators made in the formation or furtherance of a

conspiracy are admissible to prove the conspiracy, whether because they are circumstantial

evidence rather than hearsay or because, as hearsay, they meet the principled approach.”

[82] In Oliynyk, the British Columbia Court of Appeal took a similar approach as Burrows J in

Lam, stating at paras 42, 44 and 49:

2012 ABQB 521 (CanLII)

Page: 30

Telephone conversations between participants in a conspiracy furnish cogent and

reliable evidence of the very essence of the conspiracy. It is undeniably the best

evidence that exists concerning what is occurring between the conspirators. The

ability to record conversations and communications between parties engaged in a

conspiracy greatly altered the evidentiary landscape in conspiracy prosecutions.

Unlike the situation in earlier times where the evidence had to be adduced from

participants who may have been granted immunity or inferred from observations

of the actions of alleged participants, in the wiretap era, the whole framework and

details of the criminal enterprise can now be exposed to view. It is difficult to see

how one could obtain evidence of similar quality by calling unindicted

co-conspirators or parties not charged to testify to what they said at an earlier

time. As observed by the Chief Justice in Mapara, the conversations between the

conspirators possess a res gestae quality. The Chief Justice also said:

[34] [...] Indicia of reliability are found in the requirements of the Carter

rule for a conspiracy proved beyond a reasonable doubt, membership of

the accused in it on a balance of probability, and the rule that only

statements made in furtherance of the conspiracy are admitted. It therefore

becomes difficult to conclude that evidence falling under the Carter rule

would lack the indicia of reliability and necessity required for the

admission of hearsay evidence on the principled approach. In all but the

most exceptional cases the argument is spent at the point where an

exception to the hearsay rule is found to comply with the principled

approach to the hearsay rule.

. . .

... The participants in this drug conspiracy are overheard on the tapes planning and

implementing the conspiracy. There is no motivation for them to falsify evidence.

That distinguishes this situation from cases such as R. v. Starr, [2000] 2 S.C.R.

144, 2000 SCC 40. What better evidence could be obtained than the conversations

of the parties to the conspiracy occurring in furtherance of the plan? Neither logic

nor experience is indicative of any reliability concerns about the sort of evidence

here under consideration.

. . .

Simpson, like Pelletier, is a quite different factual situation from the present case.

Neither case involved wiretap evidence, a crucial distinguishing feature in my

opinion. The necessity to receive this evidence in the present case arose because it

was certainly the best evidence available to demonstrate the conspiracy. The

nature of the evidence, actual conversations by the parties about the ongoing plan

and its execution, bore all the indicia of reliability. There was no need to call the

2012 ABQB 521 (CanLII)

Page: 31

participants in order that they might be cross-examined to test the reliability of the

evidence. The situation is precisely that which is aptly described by Professor

Wigmore in the excerpt quoted supra.

[83] In R v Smith, [1992] 2 SCR 915, Lamer CJC noted that the categories of necessity are not

closed.

[84] In this case, the Crown seeks to adduce hearsay evidence in the form of wiretapped

conversations (and transcripts) of Caines, a former co-accused and alleged co-conspirator, as well

as that of other alleged unindicted co-conspirators. Caines has resolved the charges against him

in this Koker A prosecution and is in jail.

[85] Other of the alleged co-conspirators were charged in separate but related indictments,

including, but not necessarily limited to McDonald, Marche, Gregoire, Cardinal, Flight, Caines

Sr., Ricco King, Melissa King, Hoskins, Farhan Sattar, Kamran Sattar and Yakimishyn.

[86] There is no evidence that the Crown made efforts to require or obtain the oral evidence of

Caines or any of the other alleged co-conspirators besides Marche.

[87] As noted in Lindsay, at paras 21 to 22, the majority of the Supreme Court in R v KGB,

[1993] 1 SCR 740 recognized that necessity may be shown where the declarant is physically

available to testify but the court cannot expect to get evidence of the same value from him/her at

trial as the prior statement, such as when the witness refuses to adopt a prior inconsistent

statement, would suffer trauma if called to testify or cannot provide a meaningful account of

events, although fear and disinclination alone will not amount to a showing of necessity.

[88] In my view, the circumstances before the Court provide another example where the Court

cannot expect to get evidence of the same value as the wiretap provides, even had Caines or the

other alleged co-conspirators been required to attend, given the context of this case.

[89] Necessity is established because those who were parties to the conversations were named

or unnamed alleged co-conspirators. Caines was a co-accused. Others were and some still are

accused in other Project Koker prosecutions. Caines was a serving prisoner as a result of his

conviction in this Koker A conspiracy. I conclude that he and other participants in the

conversations 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 HAMC. From a policy perspective, if the Crown in such

circumstances was required to call alleged co-conspirators against their cohorts before out-of-

court statements made in intercepted communications could be admitted, plea resolutions would

be negatively affected.

[90] Counsel argued it would take little time or effort to require the attendance of Caines, and

presumably other alleged co-conspirators, who would either testify or refuse to testify, thereby

2012 ABQB 521 (CanLII)

Page: 32

making short shrift of the issue. This suggestion brings to mind another policy consideration. If

Caines (and each of the other alleged co-conspirators in the wiretapped conversations) must be

called to meet the requirement of necessity, Caines and the others must then be confronted with

their out-of-court declarations. In this case, that means each would be questioned about his

declarations in the hundreds of phone conversations in evidence in this case. Caines and the

others could accept, deny or modify with explanation each of those conversations; or refuse to

testify or do so as an adverse witness. This spectacle could result in a trial that would collapse

under its own weight. Given the contextual flexibility imbued by the courts in the necessity

concept, the policy considerations in terms of whether such a process advances the goal of

getting at the truth, and the practical concerns with taking such an approach in a complex

conspiracy case such as this, in my view the necessity requirement of the principled exception to

the hearsay rule is made out.

[91] Finally, as was the case in Oliynyk, the necessity to receive this evidence is supported by

the fact that it is the best evidence available to demonstrate the conspiracy.

[92] As to the reliability requirement, I am drawn to the reasoning of Burrows J in the Lam

decision: the declarants had little or no motive to make things appear as other than they were,

although there is the odd call where it might be argued that Caines was not forthright. 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. The recorded wiretap calls of Caines

and the alleged co-conspirators engaged in the drug trafficking are similarly reliable for the truth

of their contents.

[93] I consider the reasoning in Lam, Koker B Alcantara and Oliynyk compelling in the

context of the case before me and find that the proffered interceptions meet the necessity and

reliability criteria.

C. Step One - Did a Conspiracy Exist?

[94] As noted in the discussion of the Crown’s theory, the Crown alleges that the conspiracy

involved Caines obtaining cocaine from suppliers such as Van Den Hurk, King and the Sattars

and supplying it to distributors such as Marche, McDonald, Geebs, Gregoire and Cardinal and

Penton so that they, in turn, could sell it to other traffickers to sell in Fort McMurray. The Crown

maintains that couriers such as Flight and Hoskins transported cocaine shipments and drug

proceeds on behalf of Caines and the conspiracy. Further, the Crown asserts that the Accused

intentionally agreed to assist Caines in trafficking the cocaine.

[95] The Crown need not prove its theory, as long as it establishes that between July 1, 2005

and March 31, 2006 there was a common agreement, tacit or expressed, between two or more

2012 ABQB 521 (CanLII)

Page: 33

individuals, including one or both Accused, to act together in pursuit of a mutual criminal

objective and an intention to put that common design into effect.

[96] Such an agreement generally is established by inference from the conduct of the parties

(R v Paradis, [1934] SCR 165 at 168).

[97] To establish the agreement, the Crown relies on the opinion evidence of S/Sgt. Stapleton

and Mr. Lemieux; evidence from intercepted communications, surveillance and various seizures

indicating associations between the individuals it claims were involved in the conspiracy; and the

testimony of Marche and Deborah Weiss [Weiss].

1. Evidence on context

(a) Production, packaging, distribution, pricing,

consumption patterns, jargon and other matters relating

to cocaine in 2005-2006

[98] Staff Sergeant Doug Stapleton (then Cpl. Stapleton) has completed 33.5 years of service

with the RCMP. He spent a total of 24 years attached to a dedicated drug enforcement unit in

Edmonton, St. Alberta, and Red Deer. He is presently working at K Division in Edmonton as the

Staff Relations Officer. He was qualified to testify as an expert in the manner of use, manner of

packaging, method of distribution, prices, consumption patterns, paraphernalia, jargon, practices

and habits of users, practices and habits of traffickers, and production as it relates to cocaine and

cocaine trafficking.

[99] Staff Sergeant Stapleton testified that cocaine normally comes through Vancouver from

South America. Typically, trafficking organizations bring cocaine in kilogram quantities to

Alberta, generally to Edmonton or Calgary. However, it is not uncommon for the drugs to be

transported to Fort McMurray in kilogram quantities. Once it arrives in Alberta, the

transportation of the drugs is most commonly by road overland. Traffickers will adapt a vehicle

by creating a hidden compartment to minimize the risk of detection.

[100] Staff Sergeant Stapleton opined that the highest level of traffickers would not handle the

cocaine themselves. Rather, they would hire couriers and distributors to do so.

[101] The street level traffickers handle drugs at the gram and ounce level. They are sometimes

called “dialers.” They receive phone calls requesting drugs and their job is to distribute the drugs

to the users and collect the money. They deal in quantities of one-half gram, one gram, one-

quarter ounce and one ounce. The dialers use their cell phones for the sole purpose of selling

cocaine. The phone number will be commonly known among users. After the call, they meet for

a transaction. This could be at levels as high as one-half gram or a full gram. An eight ball is one-

eighth of an ounce or 3.5 grams.

2012 ABQB 521 (CanLII)

Page: 34

[102] The most common amount sold to end users is the spitball. It is a small portion of crack

cocaine. The term refers to the type of packaging, usually a sandwich bag corner that is twisted

and heat sealed. Generally, a spitball is less than one gram, between .2 and .3 grams. An end user

may purchase up to an ounce, but that is less common.

[103] A heavy user of cocaine, on average, could use anywhere from half a gram to two grams.

Staff Sergeant Stapleton used the word “average” because heavy use for two days generally

would result in the user abstaining from use for a few days. Typically, users only buy enough

cocaine for immediate use, in the amount of an eight ball of one-quarter ounce (seven grams). To

buy more would raise concerns of being caught by police or having the drugs stolen.

[104] One kilogram is far in excess of an amount that would be purchased for personal use. It

was Staff Sergeant Stapleton’s opinion that possession of that amount would be for the purposes

of trafficking.

[105] In the 2005 to 2006 time frame, cocaine was sold as a white powder in plastic bags or as

crack cocaine, which has a rock-like texture. Crack cocaine is produced from powder cocaine. It

is made by combining three parts baking soda to one part cocaine. It is placed in water, mixed

and heated. The cocaine separates and forms rock, the pure form of cocaine.

[106] In Vancouver, in the 2005 time frame, a kilogram of cocaine cost in the range of $22,000

to $24,000, although prices fluctuated as with any commodity depending on availability, profit

margins, and quantity. In Calgary, a kilogram was about $25,000. In Edmonton and Fort

McMurray, the prices were:

City 1 kg 1 oz 1/8 oz 1/4 oz 1 gm ½ gm

Edmonton $26,000

$27,000

$1,100

$1,200

$180 to

$220

$360 to

$380

$80 to

$100

$40 to

$50

Fort McMurray $32,000

$34,000

$1,300

$1,400

$200 to

$250

slightly

higher

than $360

to $380

$100 to

$120

$50 to

$60

[107] A typical form of packaging for a kilogram of cocaine is the brick of white compressed

powder, which is about 8" by 6" by 1", with rounded corners. The top layer is plastic with duct

tape around it. There will be a layer of brown paper or fibreglass beneath that. Talcum powder,

cayenne pepper or fabric softener may be used to mask the scent.

[108] Quantities of one-eighth ounce or one-quarter ounce typically are packaged in plastic; that

is, in a sandwich bag or baby bottle liner.

2012 ABQB 521 (CanLII)

Page: 35

[109] As with any other commodity, the method for making a profit is to improve on the costs

from the South American countries. The kilogram dealer may mark up the price of the cocaine

over and above the acquisition cost; that is, the dealer may buy it at $22,000 in Vancouver and

sell it for $32,000 in Fort McMurray. The dealer might break up the kilogram into smaller

quantities and sell them for a price that provides for profit. Another method of making a profit is

to add an adulterant to the cocaine and sell it at the price of the greater weight. For example, a

white dilutant such as lactose might be used to mix with the cocaine so that instead of 1,000

grams, there might be only 900 grams of cocaine in the brick. Another common method to

maximize profit is to sell short, meaning that cocaine sold as one-half gram will, in fact, only be

.4 or .3 gram.

[110] Staff Sergeant Stapleton testified that drug traffickers take measures to minimize their

risks of detection. As indicated above, higher level traffickers generally do not handle the drugs.

Those at the lowest end, in the community, who are distributing the drugs, have much more risk.

[111] Drug traffickers often use nominees for ownership of property. For example, to avoid

suspicion, vehicles, cell phones and sometimes even real estate will be registered in the name of

others. The high level people do not deal with someone they do not know. They will deal only

with people they trust.

[112] Normally, drug traffickers prefer to meet in person. They will use the phone to set up

meetings. They meet in public areas so as not to draw attention to themselves. Typically, they use

normal cell phones. They were using Blackberries in that time frame in question as they were

viewed as more difficult to monitor. Staff Sergeant Stapleton said that it is common for drug

traffickers to have multiple phones; that is, “work phones” separate from their personal phones.

Phones may be provided by the person above them in the chain.

[113] Drug traffickers deal almost exclusively in cash. Payment generally is required on

delivery. Where there is trust, however, the supplier may “front” the cocaine.

[114] Drug traffickers do not talk business openly on the phone. They keep conversations short

and vague and use guarded language, such as “meet you in the same place as last time,” or code

words. Some code words, such as “paper” are fairly universal while others may be unique to a

particular operation or group. These code words can be identified as such as they do not fit with

the context of the conversation.

(b) Code words used in cocaine trafficking

[115] Staff Sergeant Stapleton testified, and I accept on the basis of his many years of

experience in a dedicated RCMP drug enforcement unit in Alberta, that the following words

typically are used by drug traffickers as code words meaning the following:

Paper Refers to money.

2012 ABQB 521 (CanLII)

Page: 36

Reload Re-supply of drugs; that is, a lower end distributor needing to

replenish his or her supply.

Food Refers to cocaine.

Eight Ball One-eighth ounce of cocaine

Work phone The telephone used for contact with customers.

Hook me up The person wants to be put in touch with someone to arrange a

drug transaction.

Whole thing A whole unit. It is not a set amount, but quite often refers to a

kilogram.

Heat Police or law enforcement.

Full one A kilogram of cocaine. Staff Sergeant Stapleton said that he has

never heard of cocaine coming from source countries in bigger

packages than one kilogram.

Street boss Someone that is a level above the dialer. A street boss never has

more than one ounce, although he or she will have access to

multiple.

Fronting The trafficker will provide the product on credit. The person above

the dialer up to the seller at the kilogram level could do this. Such a

practice is common, but the person being fronted must be trusted.

Stash pad The place where drugs are kept or converted. This could be an

apartment, a garage or anywhere. Quite often it is a location where

people go to package the drugs and distribute the cocaine. They do

not live there, to minimize detection.

[116] I am satisfied from the evidence presented at trial, including that referred to in the

Crown’s closing argument, and from listening to all of the admissible wiretap evidence and

considering it in context with surveillance and seizure evidence, that the following were code

words used by certain of the alleged co-conspirators to mean the following:

Love Money - drug proceeds.

People Money - drug proceeds.

2012 ABQB 521 (CanLII)

Page: 37

Labourers Money - drug proceeds.

Girls Kilogram of cocaine.

Unit Kilogram of cocaine.

[117] Based on the evidence presented at trial, including that referred to in the Crown’s closing

argument, I am satisfied that the following individuals were sometimes referred to by the

following nicknames by certain of the alleged co-conspirators:

Caines JC

Alcantara Reg, Reggie

Knapczyk Al, Alan

Marche MK

Cardinal Cards

Farhan Sattar Furry

McDonald Macko

[118] Sgt. Anderson testified that there were three sources of nicknames: some he already knew

from having lived in Fort McMurray (i.e. Ricco the Realtor), some he heard in the intercepted

calls; and some were referred to by a third person during a conversation. He said in the third

category there was consistency and the context of the case indicated the individual to whom the

nickname referred. For example, if Alcantara said to Knapczyk that he was going to phone

“Fathead” and the next call was to Caines, that would be corroborative that Caines was known as

“Fathead.” I accept the testimony of Sgt. Anderson that:

C Alcantara was also known as “Regito,” “R,” “Little R,” and “Round

Eyes.”

C Beau Yakimishyn was know as “Mastiff” or “Dirk Diggler,” and on at

least one occasion was referred to as “Fathead.”

C Knapczyk was also known as “Big Al” and “Vice.”

C Ricco King was also known as “the King.”

2012 ABQB 521 (CanLII)

Page: 38

C Flight was also known as “the Butler,” “Chuckles,” and “Chuck.”

C Hoskins was also known as “Lips” and “Big Lips.”

C Farhan Sattar was also known as “the Younger Brother.”

C Kamran Sattar was also known as “Kam” and “the Older Brother.”

[119] Sergeant Anderson agreed that the term “Buddy” is generic, and that “Big Guy” could

have been used in reference to Caines, as Marche said it was. He was asked whether “Big Guy”

is common parlance for another male, and responded that it depends, that Alcantara referred to

Knapczyk as “Big Guy.” He said it is possible that the term could have referred to others, such as

Caines. In my view, the terms “buddy,” “big guy” and “baldy” or the “bald guy” are too generic

to use as identification of a particular individual unless there is other evidence to support that

identification.

[120] I accept the evidence of Marche that Cardinal was called “Cards.” Marche testified that

his phone conversations with Caines were fairly guarded. He said cocaine was sometimes

referred to as “kegs” or “bitches” or “units.” He confirmed that “paper” and “love” meant money.

He said “shipment” referred to a shipment of cocaine.

(d) Characteristics of Hells Angels Motorcycle Club

(i) Evidence of Mr. Lemieux

[121] Mr. Lemieux, formerly S/Sgt. Lemieux with the RCMP, was qualified to give expert

evidence concerning the HAMC, specifically with respect to the following (Qualifying Expert

Decision at paras 141-145):

I have concluded that Mr. Lemieux is qualified to provide this Court with expert

evidence as to the nature and characteristics of the HAMC, including, but not

necessarily limited to:

C the meaning of various HAMC patches and tattoos;

C HAMC structure and hierarchy;

C rules on progression through the hierarchy;

C dispute resolution within the HAMC; and

C code and jargon.

2012 ABQB 521 (CanLII)

Page: 39

He also is qualified to provide this Court with expert evidence as to the main

purposes and activities of the HAMC, and the reputation of the HAMC in the

community, including in the criminal milieu.

Since I am unable to assess at this point whether Mr. Lemieux has special

knowledge relating to "limitations" based on an individual's status in the HAMC

hierarchy in involving or committing the HAMC to certain activity, the Crown

may lead evidence to establish that he does have that special knowledge.

I will not restrict Mr. Lemieux's use of the terms "outlaw" and "gang" since this is

not a jury trial.

Concerns about Mr. Lemieux's predisposition to a conclusion, or lack of

independence because of his history with the RCMP will be dealt with as matters

of weight to be given his evidence, as will any questions concerning his

knowledge or lack thereof of the Alberta context.

[122] Mr. Lemieux provided his opinion as to the hierarchy within the HAMC based on having

seen the HAMC rules, talked to informants who were associated with the HAMC, listened to

wiretapped conversations where full-fledged members explained to aspiring members what they

had to do to become a member of the HAMC, and read reports from agents who were

investigating the HAMC.

[123] Mr. Lemieux testified that the HAMC is a worldwide organization which, in 2005,

consisted of 246 chapters in 30 different countries. The HAMC expanded into Montreal in 1977

and then to other locations in Canada, including chapters in Edmonton and Calgary in 1998 and

the Nomads chapter in Red Deer in 1999.

[124] Mr. Lemieux said that in 2005, there were HAMC chapters in Edmonton, a Nomads

chapter operating out of Red Deer, and a Calgary chapter, with none in Fort McMurray. He said

the Edmonton and Calgary chapters control certain territories. If somebody encroaches on a

territory, there will be a discussion with the chapter that is already installed there. The Nomads

have no particular territory as such, which is why they are called Nomads. Mr. Lemieux said that

they can conduct their criminal activity anywhere so long as they have permission from the

chapter already installed there. If there is no chapter in an area, they can go wherever they please.

If a territory belongs to another chapter, they have to seek permission to operate there.

[125] Mr. Lemieux explained that a chapter has at least six full-colour wearing members, with

the executive consisting of a president, vice-president, sergeant-at-arms, secretary treasurer and a

road captain. There are four levels within the organization: friend; hang-around; prospect; and

member. Before becoming a “friend,” a person must have been known by the individual

introducing them to the club for at least five years. Hang-around is the first level where the

2012 ABQB 521 (CanLII)

Page: 40

person can wear a logo identifying himself with the organization. He is entitled to wear a small

patch on the left-hand side front pocket of a vest, saying “hang-around.” If the hang-around

abides by the rules, obeys others ahead of him and proves himself as a hang-around, after several

months or a year, he can progress to prospect. He is at the beck and call of those at higher levels.

It is at the hang-around level that a person is introduced to criminal activity, if he is not already

involved in it.

[126] After a period of time, there is a vote. In order for the person to move up to being a

“prospect,” the vote in favour must be unanimous. Hang-arounds and prospects must be

sponsored by a full member of the HAMC. The sponsor is responsible for teaching the hang-

around and prospect what needs to be done to become a member. The sponsor also is responsible

for the person being sponsored and must answer to the club if that person does not follow the

rules, puts the organization in jeopardy or attracts too much attention by law enforcement. The

consequences for breaking rules of the organization can include demotion, a fine, severe beating,

being kicked out of the club, etc.

[127] Mr. Lemieux said that as with the majority of what he referred to as “the one percenters,”

the colours of the HAMC include a rocker on top of the back of the vest, with the name of the

club. The HAMC uses red letters on white backing. In the middle of the back of the vest is the

logo of the club. The HAMC has a winged death head. The bottom rocker has the name of the

region or territory. In Canada, the HAMC goes by province, so the bottom rocker might say

“Alberta.” In the United States, it would be the state and in Europe, the country. The top rockers,

logos and letters “MC” are the same worldwide. The patches are fabricated in only three places,

one being at the East End chapter of the HAMC in Vancouver.

[128] In the front of the vest, there is a patch naming the chapter, such as “Edmonton,”

“Calgary” or “Nomad.” A full member also is entitled to have the words “Hells Angels” on the

right front of the vest. Sometimes, on the left side of the vest, over the chapter patch, they may

have a winged death head patch.

[129] A prospect gets a patch saying “Prospect” and one with the name of the chapter to be

placed on the front left-hand side of the vest. He gets a patch with the name of the province for

the back lower part of the vest and a patch with the letters “MC,” standing for “Motorcycle Club”

to go just above that. These patches too have red lettering on a white backing.

[130] Prospects have to abide by the HAMC rules. They have to prove themselves to be loyal to

the club. A person must be a prospect for a year before becoming a member. Again, there is a

vote and it must be unanimous for the person to move up to full member.

[131] A prospect is subservient to full members of the HAMC and must do as they ask: for

example, wash a member’s motorcycle; provide security; drive members to or from a party; or do

yard work and other tasks around the clubhouse.

2012 ABQB 521 (CanLII)

Page: 41

[132] Only a full member is entitled to use the name “Hells Angels” and to wear the logo

(winged death head) and patch saying “Hells Angels” on the back of the vest. The HAMC have a

logo and the name. If someone uses the logo or name without consent, they may receive a stern

warning or a beating.

[133] Mr. Lemieux was asked for his opinion on how disputes within the organization are dealt

with. He said that if the dispute is between members, the president will resolve the matter. If one

of the parties to the dispute is a prospect, the prospect’s sponsor will assist in trying to resolve

the dispute by bringing it up at a chapter meeting. If the dispute is between prospects of different

chapters, they will bring the matter up with their sponsors, who will try to resolve it. If they are

unable to do so, they will bring it up with their respective presidents, who will try to resolve it. If

that is not successful, the presidents will address the regional meeting where a vote will occur.

Everyone in the organization must abide by the decision reached.

[134] Mr. Lemieux said that friends up to members all receive keys to the clubhouse and are

entrusted with certain duties. Only full members are allowed to attend meetings in the clubhouse.

Meetings, called “church night,” occur once a week.

[135] Mr. Lemieux said that his information is that Alberta chapters do follow the norm with

respect to having weekly meetings. He confirmed that he has had no involvement with the

HAMC in Alberta, and cannot say how many members were in the Edmonton chapter in 2005.

[136] In cross-examination, he agreed that he had no information as to what security

arrangements were in place, if any, at the HAMC clubhouse in Edmonton.

[137] He was asked if it would be more likely that a prospect or hang-around rather than a full

patch member would be building a fence at a clubhouse and said “sometimes, yes.”

[138] Mr. Lemieux expressed his opinion on the reputation of the HAMC in the community,

particularly in Canada, stating:

The Hells Angels have over the years gathered their reputation for violence and

intimidation. They are the most sophisticated and biggest outlaw motorcycle gang

that exists in Canada, but also the world. They will use any means at their

disposition in order to protect the name and reputation that they have gathered

over the years within the criminal milieu.

[139] Mr. Lemieux explained that by “criminal milieu” he meant the “criminal element, other

drug dealers and so forth.”

2012 ABQB 521 (CanLII)

Page: 42

[140] Mr. Lemieux offered the opinion that within the criminal milieu, people “...know exactly

what the Hells Angels stand for and what the Hells Angels can do, what their reputation is all

about.” He said:

A Well, within the criminal milieu even the Hells Angels have a rule that

states that at one point it said no burns of any kind that would reflect badly

on the club. No burns is a drug term that means that anybody that deals

with the Hells Angels get exactly what they have asked for in regards of

drugs and so forth. They know that if they try to -- how could I say -- take

the Hells Angels to task that the Hells Angels will be able to do whatever

they mean because again they know that the Hells Angels are not just one

individual, but they are a very big organization and that individuals can

count on the organization to assist them.

So if you are dealing with a member of the Hells Angels, you know that

this individual can take care of business, meaning that whenever you deal

with them, they can produce what they have told you that they will

produce or they will be able to act upon anything that they told you that

they would act on, and they will go to great lengths to defend this

reputation where their colours or their patch is the power of the

organization which demonstrates that the individual doesn’t even have to

say who he is. He just has to wear the colours of the club to identify

himself, and within the milieu they know what level this individual is at

and what he stands for, what the organization stands for -- again, as I said,

a reputation of violence and intimidation and capable of taking care of

business.

[141] Certain opinions were elicited from Mr. Lemieux for the limited purpose of providing

context to assist the Court in interpreting any coded language or conversation to which it can be

shown to relate, but not to prove that the HAMC or any particular chapter of the HAMC is a

criminal organization (see Qualifying Expert Decision at para 95).

[142] In that regard, Mr. Lemieux gave his opinion that one of the main activities of the HAMC

is drug activity, including drug trafficking, drug importation and drug distribution. He said that

when the HAMC moves into a territory it tries to gain a monopoly over the drug trade in that

area. If it does not have its own traffickers in the area, it will approach independent drug

traffickers and give them an ultimatum to sell the HAMC drugs, pay a tax to the HAMC on the

drugs they are selling, or possibly offer exclusivity for remuneration. By paying the taxes or

remuneration, the dealer has the privilege of saying he or she is backed by the HAMC, which

within the criminal milieu means that if others try to encroach or steal clients, they are not

dealing with just the individual but the entire HAMC organization. Within the criminal milieu, it

is known that the HAMC can carry out the threats it makes.

2012 ABQB 521 (CanLII)

Page: 43

[143] Mr. Lemieux said that the HAMC use coded or guarded language when discussing

criminal matters in order to avoid detection by law enforcement. Certain pre-arranged terms or

short forms may be used. He offered as an example of guarded language use of the word “house”

rather than “clubhouse,” and use of the word “boys” to mean members of the HAMC.

(ii) Arguments of the Accused

[144] The Crown relies on Mr. Lemieux’s evidence to prove the characteristics of the HAMC,

including the HAMC in Alberta. The Crown contends this evidence proves that the HAMC has a

reputation in the criminal milieu and drug world for violence, intimidation and the capability of

taking care of business. The Crown relies on the evidence concerning hierarchy and related

branding as permitting determination of an individual member’s status within the organization

and what the person can or cannot do.

[145] Alcantara points out that Mr. Lemieux was asked during cross-examination about the

information which he reviewed in order to prepare his various opinions regarding the HAMC. He

notes that none of the documents or other information Mr. Lemieux relied on were introduced

into evidence in order to disclose the basis of his opinions. Alcantara takes the position that Mr.

Lemieux’s expert opinions are effectively gutted by the Abbey (R v Abbey, [1982] 2 SCR 24 at

para 17) rule and are worth very little, if any, weight (R v JJ, 2000 SCC 51 at para 59, [2000] 2

SCR 600). Alcantara submits that there is nothing in the evidence produced at trial which

corroborates Mr. Lemieux’s opinions. Alcantara contends that since Mr. Lemieux’s opinions can

be given very little weight, they cannot fulfill the legal requirements of valid corroborative

evidence. As the factual basis for Mr. Lemieux’s opinion evidence was not entered into evidence

by the Crown, Alcantara asserts that the Court should draw an adverse inference against the

Crown and give no weight to the opinions expressed.

[146] Knapczyk simply points to this Court’s comments in the Qualifying Expert Decision and

maintains that the hearsay relied on by Mr. Lemieux, concerns about Mr. Lemieux’s

predisposition to a conclusion due to his history with the RCMP, and questions about his lack of

knowledge of the Alberta context in terms of the HAMC should be considered when weighing

his evidence.

(iii) Weight to be given to Mr. Lemieux’s evidence

[147] As I indicated in the Qualifying Expert Decision at paras 122-125:

Mr. Lemieux has based his opinion on the HAMC on first-hand experience as an

investigator, including thousands of hours of surveillance on members of the

HAMC and HAMC clubhouses, thousands of hours of listening to intercepted

communications involving HAMC members, searches of HAMC clubhouses and

reviewing documents seized from the search of the clubhouses.

2012 ABQB 521 (CanLII)

Page: 44

He also has based his opinion on information he has acquired from other sources.

He testified that the informants he spoke with were considered reliable by the

RCMP (they previously had provided information that later was corroborated),

and they obtained their information from members of the HAMC. The agents he

debriefed also obtained their information from members of the HAMC. He spoke

with former members of the HAMC and reviewed the transcript of interviews

with other former members. According to Mr. Lemieux, where the information

was new, he took steps to confirm it.

In my view, as in Lavallee, Mr. Lemieux has arrived at his general opinions "on

the basis of forms of enquiry and practice that are accepted means of decision

[sic] within that expertise."

I agree with the Crown that his partial reliance on hearsay goes to weight rather

than admissibility and that the assessment of weight will be influenced by the

other evidence called at trial that corroborates his opinion (Violette at para 75).

[148] Further, as I stated at paras 131 and 134:

Mr. Lemieux holds certain opinions on the question of the nature and

characteristics of the HAMC, and the main purposes and activities of the HAMC.

He has formed those opinions on the basis of a career-long study of motorcycle

clubs that engage in activities that are outside the law; through his work as a

police officer in various capacities, involving street work and investigation; his

review of reports and documents touching on these issues from law enforcement

agencies across Canada, the United States and Europe; and from his study of

information provided through his professional positions within law enforcement.

I am of the view that Mr. Lemieux has been shown to have acquired special

knowledge on the nature and characteristics of the HAMC (including the meaning

of various HAMC patches and tattoos, HAMC structure and hierarchy, rules on

progression through the hierarchy, dispute resolution within the HAMC, code and

jargon); the main purpose and activities of the HAMC; and the reputation of the

HAMC in the community, including in the criminal milieu.

[149] Based on his extensive personal experience as a police officer involved in investigating

the HAMC and what he referred to as “outlaw motorcycle gangs,” I accepted Mr. Lemieux’s

qualification to provide the Court with expert evidence in the areas referred to above.

[150] The Accused argue that none of the materials used by Mr. Lemieux to shape his opinion

were presented to the Court. However, no request was made for those materials in a timely

fashion. Rather, the issue was left to argument.

2012 ABQB 521 (CanLII)

Page: 45

[151] Alcantara has conceded that it is clear from surveillance evidence and photographs taken

that he and Knapczyk, throughout the police investigation, were members of the HAMC. I infer

that he means it is apparent from the “colours” they wore at times while under surveillance and

as shown in certain of those photographs. This admission tends is consistent with Mr. Lemieux’s

evidence about the various HAMC patches and tattoos. Also, during a February 9, 2006 search of

Alcantara’s residence in Edmonton, the police seized a contact list for the Edmonton HAMC

clubhouse. The list included names and phones numbers under the headings “Members,”

“Prospects,” “Hangaround” and “Friends.” This too tends to coincide with Mr. Lemieux’s

evidence about the hierarchy or levels in the HAMC.

[152] I accepted that Mr. Lemieux has special knowledge on code and jargon used by the

HAMC. Based on his opinion, and having listened to the admissible intercepted communications

and considered them in context with surveillance evidence, I accept that those individuals

involved in this investigation who were associated with the HAMC sometimes used the word

“boys” as code to mean others involved in the HAMC, and the word “house” to mean one of

their clubhouses. However, given the generic quality of these words, the context must support

that interpretation.

[153] In the Qualifying Expert Decision at para 138, I advised that I was unable at that point to

determine whether Mr. Lemieux has special knowledge relating to "limitations" based on an

individual's status in the HAMC hierarchy in involving or committing the HAMC to certain

activity. The Crown did not lead evidence to establish that he does have that special knowledge.

Accordingly, I give limited weight to his opinion in that regard.

[154] However, as noted below, Alcantara, while a prospect with the HAMC, acknowledged by

word and action his deference to “greater powers” than him in the organization (Tabs 16, 18, 46)

and indicated he was not in a position to make certain decisions or commitment (Tab 460).

[155] I accept Mr. Lemieux’s evidence on the reputation of the HAMC for violence and

intimidation as worthy of weight, even though he was a career police officer and came to the

stand with a “law and order” perspective. I use his evidence on the reputation of the HAMC in

making findings on the role of the Accused in activities alleged to constitute conspiracy to traffic

in cocaine and committing an indictable offence in association with or for the benefit of a

criminal organization.

2. Personal connections between the alleged co-conspirators

(a) Alcantara’s concessions

[156] Alcantara concedes that the evidence, particularly the wiretap and surveillance evidence,

establishes that there was a personal connection between him, Caines and Knapczyk. He

concedes that the evidence establishes that he and Caines knew each other well, and that he and

Knapczyk were good friends.

2012 ABQB 521 (CanLII)

Page: 46

[157] As noted above, Alcantara concedes that it is clear from surveillance evidence and

photographs taken that, throughout the police investigation, he and Knapczyk were members of

the HAMC.

(b) Miscellaneous

[158] Evidence was presented at trial, which I accept or from which I can infer that:

C Nicole Yakimishyn, Beau Yakimishyn’s sister, married Alcantara on

October 1, 2005;

C Caines Sr. is the father of Caines and was a close friend of Flight’s;

C Letisha Peters was McDonald’s girlfriend and lived common-law with

him;

C Pamela Peters was Caines’ girlfriend and lived common-law with him.

She is Letisha’s sister;

C Kamran Sattar is Farhan Sattar’s older brother by two or three years;

C Melissa White-King was King’s common-law wife and is now married to

him;

C Dwayne Caines is Caines’ brother;

C Linda Knapczyk is Alan’s mother.

C Caines’ and Peters’ secondary residence in Calgary and Ricco and Melissa

King’s Calgary residence are in the same subdivision, about five minutes

walking distance from each other.

C Marche and Weiss were boyfriend/girlfriend;

C Cardinal and Melissa Shephard lived together in Fort McMurray

[159] Various telephones were seized from certain of the alleged co-conspirators during the

course of the investigation. The contact lists and lists of incoming and outgoing calls and texts

were recorded and presented in evidence.

2012 ABQB 521 (CanLII)

Page: 47

[160] On October 27, 2005, the RCMP stopped a vehicle driven by Flight near Banff. The

RCMP observed two cell phones on his person: a Sanyo Solo and a Samsung. The Samsung

phone book included the name “Mac” and a cell phone number which Marche testified was

McDonald’s.

[161] On November 10, 2005, the RCMP stopped Caines in Red Deer and searched his vehicle.

One of the items seized was a Motorola phone found in the centre console of the vehicle. In the

contact list there were listings for “Cards” and “Cardinal.” The phone number associated to both

essentially was the same. Marche testified that Cardinal was referred to as “Cards.” The contact

list also had the following names associated with phone numbers which, based on subscriber or

other evidence presented at trial, were linked to the following individuals:

Bo Yakimishyn

Cal Gregoire

Charels Flight

Gb Gord Bird [Bird]

Greg Kjelshus

Hoskins Hoskins

Jamie Correia

Josh Penton

King Ricco King

Mel Melanie Berube

Mike Marche (number shown in Weiss’ LG phone as Marche’s “cell

phone” and number shown in Weiss’ LG phone as Marche’s

“business” phone number)

MK Marche (number shown in Weiss’ LG phone as Marche’s “cell

phone” and number shown in Weiss’ LG phone as Marche’s

“home” phone, which is the same number as the Audiovox cell

phone seized from March November 24, 2005)

Pat Felix

2012 ABQB 521 (CanLII)

Page: 48

Paul Paul Sukys [Sukys]

Reg Alcantara

[162] The names Jody, Ricco (with a different number than the ones registered to or with

known association to King) and Gebs and Gord (with the same number but not the known one

registered to Bird) also appeared in the contact list.

[163] Another phone, referred to as the “Much Music” phone also was seized and examined as

a result of the November 10, 2005 Caines vehicle stop. The phone book included, among others,

the following names with phone numbers registered to or associated with the following

individuals: King (Ricco King); Lips (Hoskins); MK (Marche’s business phone); and Pat (Felix).

[164] On November 15, 2005, the RCMP seized items in Van Den Hurk’s possession,

including a cell phone with the subscriber “Joe Blow.” The content indicated that a call had been

received on it on October 26, 2005 from the Samsung phone observed on Flight on October 27,

2005, four calls on October 26, 2005 from the Sanyo Solo phone observed on Flight on October

27, 2005 and three calls between November 1 and 5, 2005 from the Much Music phone seized

from Caines November 10, 2005. The cell phone was used to dial calls four times on November

1, 2005, eight times on November 2, 2005 and 12 times on November 3, 2005 to the Motorola

cell phone seized November 10, 2005 from Caines, which was registered in the name of Dwayne

Caines; and also 15 times between November 1-14, 2005 to the Much Music phone seized from

Caines on November 10, 2005.

[165] A green LG 125 Telus cellular flip phone was seized from Weiss on November 24, 2005.

Constable Rajman went through the content of the phone and recorded the entries in the contact

list; the outgoing, incoming and missed calls, and text messages sent and received. The contact

list included the name “Jeff (cell)” and the number for the Motorola cell phone seized from

Caines November 10, 2005 that was registered in the name of Dwayne Caines. It also included

the name “Kal” and the cell phone number Marche testified was used by Gregoire. In addition, it

included the name Mark H with the cell phone number registered to Hoskins. It also had the

initials “MK’ and a cell phone and home phone which Marche identified as being his. The same

cell phone number was shown under the listing for “My Man,” which included another home

number also identified as his by Marche. In addition, it listed a business number, a fax number

and a second cell phone number for “My Man.” The name “Pat Feelix” was listed with the

number registered to Felix.

[166] In his preliminary inquiry testimony, Marche identified other numbers shown in the

contact list. He said the reference to “Big Mac” was to McDonald, Hobby Shop (Bus) at a certain

number was a number used by Caines, J.B. (cell) was for Geebs, Jody (cell) was for Jody Smith

and Kal was the Cal who he testified was part of the group trafficking cocaine for Caines.

Incoming calls from Marche and Felix were listed. A text to “Jeff” on November 23, 2005 at

11:27 p.m. was shown.

2012 ABQB 521 (CanLII)

Page: 49

[167] A black and red Audiovox Telus cell phone seized from Marche’s person on November

24, 2005 had an entry for Hoskins in the contact list and one for “Geebs” with a number

registered to Bird.

[168] Shortly after the police arrived to search Caines’ Fort McMurray residence on December

14, 2005, a car driven by Gregoire with Caines as a passenger arrived. Pam Peters arrived later.

Caines provided his cell phone number, although that number was registered to a Dwayne

Caines. He also provided his land line number.

[169] Corporal Chris Bannerholt (then Cst.) assisted with the search of Caines’ Fort McMurray

residence. He seized a cell phone from the kitchen counter. The contact list included the name

“Patty Cake” and the number for Felix, and the name “Cal” and the phone number which Marche

testified was used by Gregoire (Marche identified “Cal” as Cal Derrick Gregoire in a photo

lineup).

[170] On January 19, 2006, Alcantara was arrested and searched at a Smitty’s restaurant in

Kingsway Garden Mall, Edmonton. A Blackberry cell phone was seized from him at the time.

The content of the Blackberry was examined. It contained a list with, among others, the

following three names correlated with telephone numbers: “Kal” with a phone number used by

Gregoire; “Jody” with a number registered to Amanda Smith of Fort McMurray (Marche testified

that Jody Smith was one of Caines’ distributors) and “Patty” with a number registered to Felix.

[171] On March 4, 2006, the RCMP conducted a traffic stop in Lake Louise, Alberta on a

black 2004 Hummer driven by Farhan Sattar. Among the items seized incidental to his arrest

were: a Siemens cell phone; a Nokia 6030 cell phone; a LG 2000 cell phone; and a Blackberry

7250.

[172] During the May 31, 2006 search of Ricco King’s Calgary residence, the police seized two

cell phones. The Bell Mobility Samsung, registered to R and M Properties Inc., had a draft text to

a number for a phone registered to Alcantara, and another to Farhan at the number for the

Siemens cell phone seized from Farhan Sattar March 4, 2006. The name “JC” also appeared in

the list next to a number identified by Marche as being one used by Caines, although registered in

another name.

[173] The second cell phone seized from the King residence was a Motorola. The contact list

included the name “Fury” and a phone number used by Farhan Sattar.

[174] During the May 31, 2006 search of Caines’ fifth wheel, a Motorola cell phone was seized.

The contact list included the name “Al” with a number used by Knapczyk; a reference to “Dad”

with a number used by Caines Sr.; the name “Deb” and a number used by Weiss; the name “Gb”

and the number registered to Bird and listed under Geebs in Marche’s phone seized on November

24, 2005; the name “Jody” and the same number as listed under that name in Alcantara’s phone

2012 ABQB 521 (CanLII)

Page: 50

seized January 19, 2006; the name “Mark” and the number for Hoskins; the name “Pam” and the

number used by Caines and Pam Peters; and the name “Reg” and a number registered to

Alcantara. There was an outgoing call to“Mark” at a number listed to “Marko Hoskins” and

incoming calls from the same number.

(d) Other items found during searches

[175] When Caines was stopped by the police while driving his vehicle near Red Deer on

November 10, 2005, a sheet of paper was seized. Marche identified it as a “tick sheet.” He said

the initials “MK” referred to him. As noted on the tick sheet, he owed Caines $67,115. The piece

of paper also included “-18.5", what appears to be “B - 42 72, “Card - 39 101" and “Jody-30."

[176] During the December 14, 2005 search of Caines’ residence in Fort McMurray, there was

a small piece of paper seized from the master bedroom with the following information: MK; Josh

784; Chad [...] 7000; Darren.

[177] During that search, it was observed that there were a number of Alberta driver’s licences

in a linen closet on the second floor, including one issued in the name of Ricco King and another

in the name of Derrick Gregoire. Photographs were seized from the study showing Caines with

Pam Peters, Leticia Peters and McDonald; and Caines with Ricco King.

[178] During the February 9, 2006 search of Alcantara’s Edmonton residence, the police seized

a contact list for 12004 Fort Road, which the evidence disclosed was a HAMC clubhouse. The

list included names and phones numbers under the headings “Members,” “Prospects,”

“Hangaround” and “Friends.” In that list, “Al” is listed as a member with a number used by

Knapczyk and “Reg” is listed as a prospect with a cell phone number registered to Alcantara.

[179] During the May 31, 2006 search of Caines’ Fort McMurray residence, the police seized a

colour photograph of Alcantara with a baby from inside the kitchen drawer beside the fridge.

[180] During the May 31, 2006 search of Caines’ Calgary residence, the police found an Enmax

bill in the name of Ricco King.

(e) Intercepted communications

[181] Wiretaps were initiated and private communications were intercepted pursuant to the five

wiretap authorizations from August 23, 2005 to February 13, 2006. By way of a March 6, 2008

notice of intention under s 189(5) of the Code, the Crown gave notice that it would seek to

introduce 464 of the intercepted private communications into evidence at this trial. On September

15, 2010, it served the Applicants with a revised notice of intention which listed 13 fewer

intercepted private communications than the original notice. As a result of the ruling in the Stay

Decision, 76 intercepted communications were excluded from evidence: a CD and transcripts of

the remaining intercepted communications were entered as exhibits.

2012 ABQB 521 (CanLII)

Page: 51

[182] The date and time of the calls, the telephone numbers involved in the calls, the cell site

information relating to the telephone numbers involved in the calls, and the direction of the calls

(incoming or outgoing) as set out in the header of transcripts were admitted for the truth of their

content as being the date, time and place of the calls, the telephone numbers involved in the calls

and the direction of the calls recorded on the compact disk.

[183] Alcantara concedes there is sufficient evidence before the Court to establish that he was

the speaker described in the headers to the intercepted private communications where a voice

was attributed to him and that he was properly identified in the corresponding audio recordings

of those communications.

[184] Unlike Alcantara, Knapczyk does not concede that the Crown has proven he was the

speaker where a voice was attributed to him in any call.

[185] Sgt. Anderson testified that he was the affiant and primary investigator in this case, and

one of his duties was voice identification. Between August 23, 2005 and February 13, 2006, he

was in the wire room on a daily basis and listened to thousands of calls.

[186] According to Sgt. Anderson, Knapczyk was not as active on the phone as Alcantara. He

was a principal target for 60 days. Sergeant Anderson listened to the calls initially identified as

involving Knapczyk for the re-write of WT1712 and for WT1713 and testified that he became

familiar with the voice attributed to Knapczyk. He described Knapczyk as having a harsher

voice, an authoritative tone, of taking control of the conversation. He said "ya know" a lot.

[187] Sgt. Anderson had no interaction with Knapczyk prior to the Project Koker investigation.

After the arrest, he did. Knapczyk had to turn his passport in as part of his release conditions.

After he was released, Knapczyk came into “K” Division with his passport, and he and Sgt.

Anderson carried on a general conversation. Knapczyk had to call Sgt. Anderson as part of his

release conditions and provide his monthly phone bills. He made at least one call, if not two or

three, to deal with his conditions. He identified himself to Sgt. Anderson as "Al," although Sgt.

Anderson testified that he recognized Knapczyk's voice even without Knapczyk’s self-

identification.

[188] Sgt. Anderson testified that he formed the belief he could identify Knapczyk's voice for

identification at the time of the November 28, 2006 take-down. He said that in the cell block,

Knapczyk started speaking when he was having his photograph taken, and Sgt. Anderson

recognized his voice.

[189] Sgt. Anderson conducted a review of the intercepts on March 27, 2007 and signed off on

the can-say statement on March 29, 2007.

2012 ABQB 521 (CanLII)

Page: 52

[190] On September 6, 2005 Constable Pennie conducted surveillance at the Fort Road

clubhouse. She watched and photographed Knapczyk building a fence at the northwest corner of

the lot. At 2:26 p.m., Cst. Pennie called the phone number shown for “Al” in the contact list

seized from Alcantara’s residence, subscriber “John Smith,” and asked for “Pete.” A male voice

said she had the wrong number. At 2:27 p.m., she called again and watched as Knapczyk took the

phone out of his jeans pocket. They exchanged small talk and Knapczyk told her he was building

a fence. She asked his name and he said “Alan.” At the end of the conversation, she watched him

hang up the phone and put it in his pocket. She concluded that the number she dialled belonged

to Knapczyk, who was the person in the parking lot.

[191] The Crown submits that Sgt. Anderson’s evidence identifying Knapczyk’s voice is based

on extensive experience. The Crown relies on Sgt. Anderson having listened to hundreds of calls

in which Knapczyk featured over a six month period. He interacted with him extensively after his

arrest and he supervised his bail conditions. He identified Knapczyk’s voice consistently with the

transcript without using any aids in all but one telephone call, which the Crown says has now

been correctly described. The Crown says that Sgt. Anderson’s identification is corroborated by

Knapczyk’s self-identification in a number of calls and also is corroborated by the combination

of the content of certain calls and surveillance.

[192] Knapczyk contends that in only one call does the speaker use the last name “Knapczyk.”

That call, to a doctor’s office, was intercepted on a line identified as the landline for the Fort

Road clubhouse. Knapczyk acknowledges that surveillance evidence places him at the clubhouse

at the time. He argues that the fact his name was used is equally consistent with him having

asked another person to schedule an appointment on his behalf. In two of the other

communications, the speaker identifies himself as “Al” or “Alan.” Knapczyk asserts this has no

probative value in relation to identity. He contends that the testimony of Cst. Pennie is not

determinative on the issue of identity as she lost sight of the Accused for a period of time, there

are credibility issues with her evidence, and the call pre-dated the implementation of WT1712.

[193] I find that the Crown has proven beyond a reasonable doubt that the voice attributed to

Knapczyk in the audio and transcripts of intercepted communications is indeed Knapczyk. Sgt.

Anderson listened to hundreds of calls to which Knapczyk was a party. There was a call to a

particular number which Knapczyk took from a police officer while he was watched participating

in the call. He self-identified in four calls, albeit generally using his first name only. Sergeant

Anderson had dealings with him on his arrest and recognized immediately that his voice was the

same as the one he had been listening to on the wiretap. He had further dealings with Knapczyk

as a condition of bail. He was amply familiar with Knapczyk’s voice and described its

distinguishing characteristics. I am satisfied that the voice attributed to Knapczyk in the audio

tapes of the intercepted communications and in the transcripts is indeed that of the Accused

Knapczyk.

[194] Sergeant Anderson’s ability to recognize voices during his evidence was truly impressive.

He used no notes or aids. He gave evidence of voice identification for Knapczyk (and others)

2012 ABQB 521 (CanLII)

Page: 53

with certainty and confidence, describing the voice characteristics with accuracy and detail. He

displayed an excellent memory for phone numbers and addresses. With respect to the one call

from Alcantara to Knapczyk where the evidence was at odds with the transcripts (Tab 437), I find

that call has now been properly identified.

[195] During the trial, there was evidence given (based on subscriber information for the

phones, personal observations by Sgt. Anderson and of other witnesses, self-identification by the

individuals speaking, identification of the other speaker by Marche in conversations in which he

was involved, analysis of the context of the calls and associated surveillance), which I accept,

also confirming the identity of Alcantara, Caines, Kamran and Farham Sattar, Ricco King,

Hoskins, Van Den Hurk, Flight, Caines Sr., Marche, Cardinal, McDonald, Gregoire, Geebs [the

evidence suggests this individual is Gordon Bird], Penton, Berube, Sukys, Mannarino, Pam

Peters, Kjelshus, Felix, Correia and Cortes as the speakers in the intercepted communications

attributed to them. Further, Sgt. Anderson testified that he believed the speakers in certain calls

to be Cantrill, Saunders and Grimolfson.

[196] The voice identification of Flight and Caines Sr. was admitted. The Defence also advised

that voice identification in certain calls was not in issue, including some calls ascribed to Caines,

Caines Sr., Flight, Marche, Van Den Hurk and “Shawny.”

[197] As noted above, evidence was provided, which I accept, linking various cell phones to

certain individuals. In situations where a text message was sent or received by a cell phone linked

to a particular individual, I infer that the message was sent or received by that individual.

[198] A transcript of the intercepted communications was entered into evidence. The Defence

admitted the headers, containing the date, time and place of interception, for the proof of their

content, but not the transcripts themselves, which were entered as an aid to the Court. I find that

these are largely accurate. However, I too noted that the transcript for the call at Tab 437 reversed

Alcantara and Knapczyk’s names and Sgt. Anderson’s identification of the speaker was correct.

[199] Private communications between the following individuals (voice identified, self-

identified in the call, identified based in subscriber information or context) were intercepted by

the police as a result of the wiretap authorizations:

Alcantara Flight, Ricco King, Caines, Knapczyk, McDonald, Neil Cantrill

[Cantrill], Pam Peters, Donald Paul Lanski, Saunders, Correia,

Kjelshus, Yakimishyn, Trevor Grimolfson [Grimolfson], Gregoire

Knapczyk Alcantara, Lorna, Caines, Mannarino

Caines Alcantara, Knapczyk, Flight, Cardinal, Van Den Hurk, Berube,

Felix, Penton, Marche, Farhan Sattar, Ricco King, Melissa King,

2012 ABQB 521 (CanLII)

Page: 54

Hoskins, Correia, Caines Sr., Peters, Smith, Gregoire, Kjelshus,

Weiss, Tarrant, Sukys, Bird

Flight Alcantara, Caines, Penton, Caines Sr., Matt, Paul

Ricco King Peters, Alcantara, Caines

[200] In one call intercepted on January 12, 2006, Alcantara indicated that he was sitting with

“Cal” and Jody Smith.

(f) Seen Together

[201] A copy of the reports and police officers’ notes recording certain surveillance conducted

during Project Koker was marked as an exhibit in this trial. The parties admit that the

information contained in the surveillance reports and officers’ notes is accurate except where the

reporting officers used the terms “believed to be,” “BTB,” “possibly” or “may be.”

[202] On October 1, 2005 Alcantara married Nicole Yakimishyn. Sergeant Anderson was in the

wire room working on a re-write of the affidavit for an extension of the authorization. They had a

live video feed from the wedding at the Italian Cultural Centre, in order to show associations.

The video was played in court and Sgt. Anderson identified the following individuals:

Larry Kosowan, also known as “Kozzy,” (“Kozzy” is listed as a “friend” of the

Edmonton chapter of the HAMC on the phone list seized from Alcantara’s

Edmonton residence); Knapczyk and Saunders; Ricco King; McDonald; Caines;

Alcantara and Nicole Yakimishyn; Saunders and Kosowan; and Caines and

McDonald.

[203] During other police surveillance, the following individuals were observed together:

Caines with

C Alcantara

C Alcantara and Caines Sr.

C Knapczyk

C Alcantara and Knapczyk

C Alcantara, Knapczyk and McDonald

C Caines Sr. and Flight

2012 ABQB 521 (CanLII)

Page: 55

C Kamran Sattar and Ricco King

C Farhan Sattar and Ricco King

C Farhan and Kamran Sattar

C Gregoire

Alcantara with

C Knapczyk

C Knapczyk and Caines

C Ricco King, McDonald, Mannarino, Keef, Vos,

C Caines

C Caines and Caines Sr.

C Saunders

Knapczyk with

C Alcantara

C Alcantara and Caines

C Saunders

C Mannarino

[204] Sergeant Anderson testified that on May 12, 2006, he saw Caines and the Sattar brothers

together at an Edmonton Oilers game at Rexall Place.

(g) Involvement with HAMC

(i) Caines

[205] There is no evidence that Caines was affiliated with the HAMC. However, the evidence

suggests that he was a supporter of the club.

2012 ABQB 521 (CanLII)

Page: 56

[206] According to Brian Walker, the former owner of Cowboys Saloon, located in the

Travelodge Hotel in Fort McMurray, Caines was a frequent customer of the bar.

[207] In February 2004, they both attended a wedding in Mexico and discussed Caines buying

into the bar.

[208] Mr. Walker testified that Caines told him that he thought he would be going to jail, and

he wanted Mr. Walker to put his wife Pam Peters on the payroll so that she and his child would

be looked after while he was in jail. Mr. Walker said that Caines gave him about $80,000 over an

eight month period. Mr. Walker put Ms. Peters on the payroll for 13 months. Initially, he thought

this started about October 2004. Mr. Walker was referred to his testimony at the preliminary

inquiry, when he testified that the first payment to Ms. Peters would have been two months after

the February 2004 wedding. He adopted that answer at trial.

[209] Mr. Walker testified that Ms. Peters received a payroll cheque of $2,500 every two weeks

from Cowboys until Cpl. Stoddard of the RCMP IPOC unit spoke to Mr. Walker about Caines in

November 2005, after which he stopped paying Ms. Peters. He contacted Caines and advised him

he did not want to be part of it - the investigation into Caines’ lifestyle, the RCMP, and all that

came with it. He said Ms. Peters never worked for Cowboys and it was never intended that she

would.

[210] Mr. Walker related an incident involving Caines that occurred at Cowboys on a Saturday

night during the time frame when he was paying Ms. Peters. He said it was in May or June, but

he was not certain which year. He was asked if he recalled telling Cpl. Stoddard that the incident

involving members of the HAMC at the bar occurred in the time frame of six to eight months

after he started paying Ms. Peters. While he did not remember saying that, he indicated he would

go by what he had told Cpl. Stoddard. He agreed that there was an overlap in the time period

between paying Ms. Peters and the Saturday night event. He subsequently agreed it occurred in

the summer of 2004.

[211] Mr. Walker said Cowboys held 800 people. On the Saturday night in question, there were

about 600 people there. There were motorcycles parked in the line-up. Mr. Walker testified that

Caines walked in with a group of eight or ten men and said: “These are my new partners.” Mr.

Walker testified that two of the men were wearing HAMC vests. The vests said “Hells Angels”

on them, and had a logo of a wing and something inside the wing like a face or something. He

indicated he had seen the logo before on the news. The vests had no sleeves, they were black

with red and white writing. He indicated that the other six or eight men were wearing plain black

vests.

[212] In cross-examination, he confirmed that he remembered the first time Cpl. Stoddard came

into the bar in November 2005, but did not remember telling the officers that Caines had said “...

these are my friends” when referring to the men he walked into Cowboys with. He maintained

that Caines said: “These are my new partners.”

2012 ABQB 521 (CanLII)

Page: 57

[213] While I do not admit the hearsay of Caines’ comment to Walker for the truth of its

content as it pre-dated Alcantara and Knapczyk’s alleged entry into the conspiracy (McWilliams’

Canadian Criminal Evidence at pp 616-617) I accept Walker’s evidence that Caines entered

Cowboys in the company of a group or eight to ten men, two of whom clearly were affiliated

with the HAMC.

[214] In cross-examination, Mr. Walker acknowledged that there were a number of corporate

interests that he was involved in over the years. He agreed that when the police from the IPOC

unit came to see him about Caines in the fall of 2005, he was concerned they would think he had

been engaged in money laundering for Caines. Mr. Walker said that the police thought he was

laundering Caines’ money through the bank machines that needed cash during the night. He said

the police did convey in a roundabout way that he could be charged. He felt it was in his best

interests to co-operate with the officers. He explained that he meant he should answer the

questions that they asked.

[215] Given that Mr. Walker said that Ms. Peters was on the payroll for 13 months and he only

stopped paying her a salary when Cpl. Stoddard spoke to him in November 2005, I prefer his

initial trial evidence that he began paying Ms. Peters in October 2004 rather than his preliminary

inquiry evidence which he adopted.

[216] One of the documents found during the May 31, 2006 search of Caines’ and Ms. Peters’

Calgary residence was a pay stub dated February 25, 2005 to Ms. Peters from Cowboys. The

February 2005 date would be consistent with either time span. Another pay stub from Cowboys

was found during the search of Caines and Peters’ Fort McMurray residence.

[217] Given that I prefer Mr. Walker’s initial trial evidence on the timing of his payments to

Ms. Peters, I find that the incident described by Mr. Walker occurred in May or June of 2005

rather than 2004, which would be seven or eight months after he said he started to pay Ms.

Peters.

[218] Although I apply a Vetrovec (R v Vetrovec, [1982] 1 SCR 811) warning to Walker’s

evidence, I find it believable because the event described was not an everyday occurrence, but

rather one worthy of note in the context of the bar scene in Fort McMurray. Caines was a friend

of Walker’s and had a relationship with him that involved confidences. Despite Walker’s

seeming involvement in money laundering for Caines by paying Ms. Peters a salary although she

did not work at Cowboys, and although Walker was afraid of facing charges himself when he co-

operated with the police, he gave his evidence in a forthright fashion and without hesitation or

equivocation.

[219] On September 3, 2005, at 1:02 a.m., Caines was observed by the police arriving at the

HAMC Fort Road clubhouse in Edmonton in a Ford Super Duty truck and being greeted there by

Alcantara. The truck left at 1:05 a.m. with both Caines and Alcantara believed to be in it. At 1:12

2012 ABQB 521 (CanLII)

Page: 58

a.m., the truck was spotted at Humpty’s. The Caines truck was seen back at the clubhouse at 1:57

a.m.

[220] On September 6, 2005, Constable Pennie observed Caines assist Knapczyk in building a

fence at the north west corner of the HAMC Fort Road clubhouse lot. At 2:33 p.m., Caines was

observed walking into the parking lot of the Fort Road clubhouse. Caines and Knapczyk walked

to the back door of the clubhouse at 2:38 p.m. At 2:45 p.m., Caines got into the passenger seat

and Knapczyk into the driver’s seat of a Yukon and they drove away from the clubhouse. Caines

was again seen coming out of the clubhouse at 6:39 p.m. and getting into his father’s truck.

According to Mr. Lemieux, entry into a HAMC clubhouse is by invitation only.

[221] During the May 31, 2006 search of Caines’ residence in Calgary, the police found a black

t-shirt with the logo “Support Your Red Machine - Nomads Alberta” in the master bedroom

closet.

(ii) Alcantara

[222] As noted above, Alcantara concedes that he was a member of the HAMC during the

Project Koker investigation. I am satisfied from the evidence presented at trial that, indeed, this

was the case and that he was a prospect in June 2005 and by at least July 2006 was a full member

of the HAMC.

[223] Detective Douglas James Greaves has been with the Calgary Police Service Criminal

Intelligence Unit since the spring of 2005. His main focus is the HAMC and what he referred to

as other “outlaw motorcycle clubs.”

[224] On June 24, 2005, Det. Greaves was monitoring activities at the HAMC Fort Road

clubhouse in Edmonton. Members from the HAMC Nomads chapter were travelling as a group

to Grand Prairie. Detective Greaves was engaged in overt surveillance to identify who was on

this run. He photographed Alcantara getting off his V Rod Motorcycle. He said Alcantara pulled

out of the garage. He was wearing a black leather vest. On the front were two patches on the left

side over his heart. On the bottom was a white patch with red lettering, and red piping around the

edge with the words “Edmonton.” The patch above said “Prospect,” again with red letters and red

piping. On the back of the vest, there was a white patch in the shape of a smile, with “Alberta” in

red letters. Above the : “...ta” were the letters “MC” on a white patch with red letters.

[225] On August 24, 2005, at 2:39 p.m., Alcantara was observed by the EDS arriving in a black

2004 Jeep Cherokee at the Nomads After Hours Club in Edmonton, and walking in the front door

of the club. At 3:09 p.m., Alcantara and a male believed to be Knapczyk were seen leaving the

club. Alcantara drove off in his vehicle and the male believed to be Knapczyk left in a black

2001 GMC Yukon (Linda Knapczyk was the registered owner of a 2001 black Yukon).

2012 ABQB 521 (CanLII)

Page: 59

[226] On August 30, 2005, at 4:26 p.m., Alcantara was observed by the police unloading

objects from a black Jeep Cherokee into the HAMC Fort Road clubhouse. At 5:00 p.m., he was

seen leaving the clubhouse and, at 5:08 p.m., returning. At 6:06 p.m., he was observed outside

the clubhouse with several males. Alcantara was wearing a black leather vest with a bottom

rocker. There was a pit bull standing nearby. Alcantara left the clubhouse at 6:10 p.m., driving a

silver 2003 Harley Davidson motorcycle.

[227] On August 30, 2005, at 6:12 p.m., Cst. Rajman of the RCMP observed Alcantara driving

a 2003 Harley Davidson motorcycle northbound on 82 Street in Edmonton. Alcantara was

wearing a vest. On the back, there was a bottom patch or rocker with “Alberta” written on it and

a small crest or patch above that which said “MC.” Rajman understood those initials to mean

“motorcycle club.”

[228] On August 31, 2005, at 2:47 p.m., EDS observed Alcantara drive up to the Fort Road

clubhouse and enter. He was wearing a black leather vest with a bottom rocker. At 2:58 p.m., he

drove away. Alcantara arrived back at the clubhouse at 4:02 p.m.. At 4:30 p.m., he left the

clubhouse, approached a vehicle in the parking lot registered to Nicole Yakimishyn, they both

walked to the back of the vehicle, took something out of the trunk and both entered the

clubhouse, with Alcantara carrying a small unknown object in his hand.

[229] On September 3, 2005, at about 1:00 a.m., Alcantara was seen at the Fort Road

clubhouse. At 1:02 a.m., a grey Ford Super Duty truck (registered to Caines Sr.) drove into the

lot. Caines got out of the truck and he and Alcantara greeted each other.

[230] On September 6, 2005, at 5:41 p.m., Alcantara, Caines and Caines Sr. were seen standing

at Bubbles Carwash. Alcantara and Caines got into a black Cadillac at 5:46 p.m. and drove away.

At 6:19 p.m., Caines Sr.’s’ truck and Alcantara’s Cadillac were followed to the Fort Road

clubhouse parking lot. Caines came out of the clubhouse at 6:39 p.m. and got into his father’s

truck and drove away.

[231] On September 14, 2005, at approximately 10:10 p.m., James Robert Jancsek, an RCMP

officer, was at 16119-98 Street in Edmonton and drove by a black GMC Yukon (registered to

Linda Knapczyk). He observed that Knapczyk was sitting in the driver’s seat and was engaged in

conversation with Alcantara, who was wearing a black vest with a patch on the lower back of the

vest. He described the patch as being a reverse crescent-shape, made of cloth material with a red

border, white background and red lettering and the words “Alberta” written on it. Just above the

“T” in “Alberta,” written on the crescent-shaped patch, and also sewn on the back of the black

leather, was a small square patch with a red border, white background and red lettering, with the

letters “MC” in the middle.

[232] On September 15, 2005, at 7:42 p.m., Alcantara was observed walking toward the Fort

Road clubhouse. Surveillance was terminated at the clubhouse and set up later. At 9:35 p.m.,

Alcantara was seen getting out of a grey Buick Regal and walking to the clubhouse carrying a

2012 ABQB 521 (CanLII)

Page: 60

liquor box. He left the clubhouse at 9:37 and was seen near the Buick. At 10:15 p.m., he was

seen in the Buick. The Buick left the parking lot and returned at 10:26 p.m.. At 11:09 p.m.,

Alcantara was seen with another male burning a piece of paper outside the clubhouse. Alcantara

left the clubhouse area at 11:29 p.m. in an old blue Dodge truck.

[233] On February 9, 2006, at about 6:00 p.m., the RCMP executed a search warrant at

Alcantara’s Edmonton residence. The items seized included a contact list for 12004 Fort Road.

The list included names and phones numbers under the headings “Members,” “Prospects,”

“Hangarounds” and “Friends.” Alcantara’s phone numbers was listed beside the name “Reg”

under the heading “Prospects.”

[234] Mr. Lemieux was referred to the photograph of this list. He expressed the opinion, which

I accept, that it shows a card with the names of those involved in the Edmonton chapter of the

HAMC, grouped by the levels of membership: the full-fledged members, the prospects, the hang-

arounds and the friends.

[235] Also seized were photographs of Alcantara on his Harley Davidson motorcycle, of

Alcantara wearing a HAMC Alberta vest along with another similarly attired man; two 2005

HAMC calendars, one hanging over the desk and a second with the words “British Columbia;” a

decal saying: “Support Your Local Big Red Machine Sherbrooke” and a patch saying “Support

Your Local Red & White.” Mr. Lemieux gave his opinion that these were made by the HAMC.

He said the “Big Red Machine” refers to the HAMC organization and “Red & White” refers to

the colours of the HAMC.

[236] Constable Collin Dale Kuca, an RCMP officer, was stationed in Valleyview, Alberta on

July 24, 2006. He reported that at about 2:05 p.m. that day, he was notified by the Grande Prairie

RCMP detachment that there were a number of HAMC members riding on motorcycles in a large

group down Highway 43 eastbound towards Valleyview. He went out to the town limits and

watched as a group of motorcyclists traveled into town. He followed the group to the Esso gas

station on the eastern edge of town and watched as they fueled up. He took photographs of some

of the riders and motorcycles and took down licence plate numbers.

[237] He testified that there were 14 individuals wearing what he referred to as HAMC vests or

full colours and others who were dressed differently. There were two types of vests, one with a

bottom patch indicating “British Columbia” and the other “Alberta.” Eight individuals were

wearing British Columbia patches and six wearing Alberta patches. He also recorded six

individuals riding with the group who were not wearing what he referred to as HAMC vests. Two

were wearing a black leather vest with no patch on it and another four were wearing regular

clothing. He observed a large number of motorcycles and ran some of the licence plates. Among

the group were a 2006 Harley Davidson motorcycle registered to Alcantara; a black 2006 Harley

Davidson motorcycle registered to Critch; and a black 2006 Harley Davidson motorcycle

registered to Ezekiel. He took photographs of the riders.

2012 ABQB 521 (CanLII)

Page: 61

[238] Mr. Lemieux was referred to these photographs. He offered the following opinions:

C the individual shown in photograph #4, is wearing a full set of “colours,”

showing he is a full member of an Alberta chapter of the HAMC;

C the person second from the right in photograph #7 is wearing the insignia

of a full member of a British Columbia chapter of the HAMC;

C the person second from the right in photograph #8 is a full member of a

British Columbia chapter of the HAMC. The person on the left side of the

photograph with his back to the camera also is a full member of a British

Columbia chapter of the HAMC;

C the person on the right side of photograph #14 also is a full member of a

British Columbia chapter of the HAMC;

C the person in the forefront of photograph #17 is a full member of an

Alberta chapter of the HAMC;

C the person second from the right of photograph #19 also is a full member

of an Alberta chapter of the HAMC. The person second from the left, in

the red bandana, is a full member of the HAMC.

[239] Sergeant Anderson identified the person second from the right in photograph #19 as being

Alcantara. Accordingly, I find that Alcantara was a full member of the HAMC by July 24, 2006.

[240] On August 26, 2006, Det. Greaves monitored a party at the HAMC Calgary clubhouse.

He recognized several HAMC members, including Alcantara. Alcantara was wearing full HAMC

colours. On the back of the vest there was a white patch with red letters with the words “Hells

Angels” on top and the death head logo with winged backing in the middle. That logo is a skull

in profile, where the ear should be, the wing portion attaches to the skull. The skull is white, and

the helmet, black. The start of the wing near the helmet is red and goes to gold. On the left front

of the vest were the words “Edmonton” and “Hells Angels.”

(iii) Knapczyk

[241] I am satisfied on the basis of the evidence presented at trial that by at least August 2005,

Knapczyk was a full member of the HAMC and would have been a prospect or member for the

year before that.

[242] As noted above, on August 24, 2005, at 3:09 p.m., Alcantara and a male believed to be

Knapczyk were seen leaving the Nomads After Hours Club. Alcantara drove off in his vehicle

2012 ABQB 521 (CanLII)

Page: 62

and the male believed to be Knapczyk left in a black 2001 GMC Yukon like the one driven by

Knapczyk.

[243] Knapczyk called Alcantara on August 25, 2005 at 2:21 a.m. Alcantara said: “Listen man.

I - you know Al man, like fuck, it’s just really hard for me because I’m a prospect right? And I

fuckin’...” Knapczyk responded: “...There’s no need, you’re my prospect.” Alcantara said” “I

know man.” He commented: “... but I respect the patch, I respect the patch... with fuckin’ the

most respect out of anything... in life is that patch, right?” Knapczyk responded: “Yeah.” (Tab

16, Session 98).

[244] On September 6, 2005, Knapczyk was observed by the police walking around the Fort

Road clubhouse parking lot at 1:37 p.m. He was still walking around the parking lot area at 1:46

p.m. Constable Pennie watched and photographed Knapczyk building a fence at the north west

corner of the lot. Caines arrived and assisted him. At 2:38 p.m., they walked to the back door of

the clubhouse.

[245] Mr. Lemieux was referred to the photographs taken on the July 24, 2006 HAMC ride to

Valleyview. He opined that the person in photograph #4 and the person second from the left in

photograph #19 wearing the red bandana is as a full fledged member of the HAMC Alberta

motorcycle club. The person wearing the red bandana was identified as Knapczyk

[246] The contact list seized from Alcantara’s home on February 9, 2006 included the name

“Al” and Knapczyk’s phone number under the term “Members.” It also referred to “Friends,”

“Prospects” and “Hangarounds.”

[247] Mr. Lemieux also was referred to photographs taken of Knapczyk on his arrest in

November 2006. Photograph #5 shows a tattoo saying “Hells Angels” on his right rear arm.

Photograph #6 shows a tattoo saying “Loco” and another of a death head on his upper back. Mr.

Lemieux offered his opinion, which I accept, that the person shown was a full patch member of

the HAMC because only they can have a tattoo with the name “Hells Angels,” while prospects

cannot.

(iv) LePoidvin

[248] I am satisfied on the basis of the evidence presented at trial that LePoidvin was a prospect

with the HAMC Alberta Nomads chapter in June 2005 and that by June 13, 2006 he was a full

member.

[249] Detective Greaves photographed LePoidvin on June 24, 2005 outside the HAMC

clubhouse in Edmonton. He was wearing a black vest with two white patches on the front of the

vest over the heart. The patches had red lettering and piping. The bottom patch said “Nomads”

and the top patch “Prospect.” There were two patches on the back, a semi-circle arc resembling a

smile saying “Alberta” on the bottom and a smaller one with the letters “MC” above that.

2012 ABQB 521 (CanLII)

Page: 63

[250] Mr. Lemieux was referred to that photograph and asked to identify the patches located in

the front left chest area of the vest worn by the person touching his sunglasses. He said that the

top patch says “Prospect.” The Crown asked him to assume the lower patch has the word

“Nomad” and Mr. Lemieux then said that this person is a prospect member of the Nomad chapter

of the HAMC. He said he would have to see the back of the vest to identify which province the

Nomad chapter is from since there is only one Nomad chapter per province. If the back vest had

patches saying “Alberta MC,” it would be the Alberta chapter of the Nomads. I accept Mr.

Lemieux’s evidence on this point.

[251] Constable Kuca testified that on September 11, 2006, at approximately 5:50 p.m., in

Valleyview, he stopped a 2005 Chrysler 300, registered to Shauna Lee Pindar of Edmonton,

Alberta for a speeding offence. There were three occupants of the vehicle, including the driver

LePoidvin. He noted that the driver was wearing clothing related to the HAMC. He had on a

black golf shirt that had a crest on the breast that said “Hells Angels” and “MC” beneath that and

also a crest that said “AFFA.” In addition, he was wearing a baseball cap with a crest of the

winged skull on it.

[252] Based on Mr. Lemieux’s evidence that only full members can wear the death head

insignia, I conclude that LePoidvin was a full member of the HAMC by at least September 2006.

[253] On June 13, 2007, Det. Greaves was on duty in British Columbia covering an anniversary

party at the HAMC Haney clubhouse. There was a big sign that said “Hells Angels Anniversary.”

He was engaged in overt surveillance. He was positioned outside the gate at the Pitt Meadows

compound monitoring traffic coming and going. He observed LePoidvin arrive wearing a black

leather vest with “Hells Angels” on a white patch on the right hand side of the vest. On a white

patch on the left side over his heart were the words “Nomads” in red letters with red piping. On

the back of the vest, at the top, were the words “Hells Angels” in red letters on a white patch. At

the bottom in a white patch with red letters and piping, the words “Alberta”, with MC under the

“ta.” In the middle of the back was “Hells Angels” and “Alberta” with the death head.

(v) Cantrill

[254] There is some evidence, although not conclusive, that Cantrill was associated with the

Nomads chapter of the HAMC.

[255] On August 24, 2005, Alcantara and Knapczyk arrived at the Nomads After Hours Club in

Edmonton at about 2:30 p.m. and were observed leaving at about 3:00 p.m. At 3:48 p.m., Cst.

Rajman observed what he described as a full patch member of the HAMC drive a blue Harley

Davidson motorcycle registered to Cantrill southbound on 142 Street in Edmonton in the near

vicinity of the After Hours Club.

2012 ABQB 521 (CanLII)

Page: 64

[256] In the call on Thursday August 25, 2005 at 1:58 a.m. (Tab 14) between Alcantara, a

prospect of the HAMC at the time, and Cantrill, Cantrill asked if Alcantara was going back to the

“house.” Alcantara had been seen leaving the Nomads After Hours Club at about 3:00 p.m. the

day before and a male driving Cantrill’s motorcycle also had been seen in the area. Mr. Lemieux

gave as an example of code used by HAMC members the term “house” to mean “clubhouse.”

Alcantara asked Cantrill when he wanted him there and Cantrill said in ten minutes. In the

September 1, 2005 call at Tab 39 (Session 509), Alcantara said he was just hanging at the

“house.” Cantrill said he might pop down there.

(vi) Mannarino

[257] On November 3, 2005, (Tab 193, Session 3217), at 12:49 p.m., King called Alcantara.

Both of them were at or near Edmonton. King said he was meeting “them” at 2:00 p.m. at Joey

Tomato’s downtown. Alcantara said they should meet up first because he wanted to hear King’s

side first. King said there was no side, that it was a “...the C story, but it somehow got twisted big

time.” They planned to meet.

[258] Alcantara, King and McDonald were observed at Joey Tomato’s Restaurant in Edmonton

by Cst. Purvis at 1:22 p.m. that day. They were joined at 2:02 p.m. by Mannarino and Paul Keef.

Cst. Purvis observed that McDonald appeared agitated and argumentative towards Keef. King

also appeared agitated and gestured towards Keef and Mannarino. Alcantara just watched. After

Owen Vos came in and sat beside Keef, King and Keef shook hands. The group disbursed at 3:18

p.m.

[259] On November 3, 2005, at 5:00 p.m., a call from King to Caines was intercepted (Tab 197,

Session 191). Caines was believed to be at his residence in Calgary and King at or near

Edmonton. Caines asked: “Where are these guys at?” King asked if he meant the “patches.”

Caines said no, the guys he was supposed to see today. King said he was sorry, but he had a big

meeting with a bunch of patches and Caines’ name came up. He told Caines everything was

going to be fine because “explanations are made again. But, Big R, Little R in E Town needs you

to phone him pretty quick.” In my view, this discussion was in furtherance of the conspiracy.

[260] Detective Greaves testified that he knows Dino Mannarino from having observed him at

HAMC functions. On November 7, 2009, Det. Greaves saw Mannarino drive into the HAMC

Nomads clubhouse at Blackfalds, Alberta. Detective Greaves was on the side of the road for

several hours, watching. He saw other HAMC members arrive. He followed some out, including

Joseph Siega, who was wearing his colours. His vest had patches saying “Calgary” and “Hells

Angels” on the front; and on the back, patches saying “Hells Angels,” “Alberta” and “MC” in red

letters on a white background.

[261] I conclude that Mannarino was probably associated with the HAMC during the period in

question, possibly with the Nomad chapter.

2012 ABQB 521 (CanLII)

Page: 65

(vii) Sukys

[262] Detective Greaves also testified that he knows Sukys and that he conducted surveillance

on him and photographed him on April 17, 2005 outside the Hollywood Inn in Calgary. Sukys

was wearing a black leather vest. On the front left there were white patches with red letters

saying “Nomad” and “Prospect.” On the back, on white patches, there was the word “Alberta” in

a smile shaped logo, the letters “MC” above that and the word “Prospect.”

[263] Detective Greaves said that he has dealt with Sukys on numerous occasions, including

during the Medicine Hat run in June 2006 while working overt surveillance. He saw him in the

parking lot of the Callahan Inn with other members of the HAMC. He was wearing a black

leather vest similar to the others he has described. On the back there was a white patch with the

“Hells Angels” logo in a frown-shaped patch; “Alberta” in a smile-shaped patch, with “MC”

above that, and the death head in the middle of the back.

[264] Sgt. Anderson was referred to the photographs taken by Cst. Kuca on the July 24, 2006

HAMC ride to Valleyview. In addition to Alcantara and Knapczyk, he identified Yakimishyn and

Saunders.

[265] I conclude that Sukys was a Nomads prospect in April 2005 and a member of the HAMC

by June 2006.

(viii) Anthony Saunders

[266] I am satisfied that Saunders was affiliated with the HAMC during the time period in

issue.

[267] In an intercepted telephone call (Tab 21) on August 26, 2005, Alcantara asked Saunders if

he was at the “house.” Saunders said that he was. Alcantara asked Saunders to check the

schedule for him, to see what his days were. Saunders talked about him, Alcantara and “Kozi”

being on the schedule. Sergeant Anderson testified that Larry Kosowan was also known as

“Kozzy.” Kozzy was listed as a “Friend” of the Edmonton chapter of the HAMC on the phone

list seized from Alcantara’s Edmonton residence, while “Tony” was listed as a “Prospect.”

Alcantara complained to Saunders: “I can’t keep fucking enforcing everything...” Saunders asked

what kind of mood the “boss” was in, and Alcantara responded: “...normal,” but said he was like

his father when he was in a bad mood, his father threw things at him. I infer from the

conversation that Saunders was at the HAMC clubhouse at the time.

[268] In a telephone call at Tab 459 between Saunders and Alcantara on January 13, 2006,

Saunders spoke about “the guy that’s the same as us” who had not attended the meeting they

were discussing. I take him to have been referring to another prospect with the HAMC.

2012 ABQB 521 (CanLII)

Page: 66

[269] Sergeant Anderson identified Anthony Saunders as one of the individuals shown in the

photographs taken by Cst. Kuca on July 24, 2006 of participants in a HAMC ride to Valleyview.

Sgt. Anderson also identified Saunders as one of the guests at Alcantara’s wedding.

(h) Conclusions

[270] It is clear from the evidence on general associations that both Accused and Caines knew

each other, Caines knew all of the named alleged co-conspirators and Alcantara knew most of

them. Also, it is apparent that Knapczyk knew McDonald, Saunders, Yakimishyn and

Mannarino, in addition to Alcantara and Caines. I am satisfied that Alcantara, Knapczyk,

LePoidvin, Mannarino, Sukys and Saunders were all prospects or members of the HAMC during

the time period in issue. LePoidvin, Sukys and possibly Mannarino were involved with the

Nomads. Alcantara, Knapczyk and Saunders were involved with the Edmonton chapter. There is

some evidence that Neil Cantrill was a full patch member of the HAMC in August 2005, and that

Caines was a supporter of the HAMC.

3. Seizures

(a) September 15, 2005 - McDonald’s Fort McMurray

residence

[271] On September 15, 2005, at approximately 10:23 p.m., members of the Fort McMurray

RCMP Drug Section executed a search warrant at McDonald’s residence in Fort McMurray.

[272] There were four people at the residence at the time of the search: McDonald, Letisha

Peters, Justin Lake and Felix.

[273] In addition to $440.00 in Canadian currency seized from McDonald, the following items

were seized during the search of his residence:

From the attached garage:

C Two bricks of cocaine, found in a black and yellow backpack

located on top of a stove and microwave oven in the corner of the

garage. The two bricks were packaged in vacuum sealed bags

wrapped with electrical tape and duct tape. The first brick weighed

980 grams, the second 983 grams.

C a Canadian passport and international driver’s licence in the name

of Aaron MacDonald, found in a duffle bag;

2012 ABQB 521 (CanLII)

Page: 67

C Nineteen American express traveller’s cheque receipts totalling

$19,500 in U.S. currency, found in the side pocket of the duffle

bag.

From the kitchen:

C six baggies of cocaine from a Rubbermaid container found in the

kitchen cupboard. The weight of the cocaine in the baggies was:

27.6 grams; 28.6 grams; 28.7 grams; 28.6 grams; 28.6 grams and

28.6 grams. The total weight was 170.7 grams.

C a dinner plate with cocaine residue found in a kitchen cupboard;

C a knife with cocaine residue found in a kitchen cupboard;

C a “My Weight” digital scale with extensive cocaine residue,

located on the kitchen counter;

C two one-gram spitballs of cocaine tied from one sandwich bag and

located on the kitchen counter beside the refrigerator;

C two one-gram spitballs of cocaine tied from one sandwich bag and

located on the kitchen counter beside the refrigerator;

C an 8-ball of cocaine weighing 2.8 grams in a sandwich baggie,

located on the kitchen counter;

C a 500-count box of sandwich bags that was about half empty,

located beside the scale on the kitchen counter;

C a Ziplock sandwich bag containing 110 grams of loose crack

cocaine and a baggie with six grams of cocaine. The Ziplock

baggie was found in the kitchen drawer beside the refrigerator;

C a large bundle of money totalling $6,530.00 in Canadian currency

and $50.00 in American currency, secured with an elastic on each

end, consisting of various denominations, located inside a kitchen

drawer beside the refrigerator;

C twenty-one grams of cocaine in a Rubbermaid plastic container,

located in a kitchen drawer beside the refrigerator;

2012 ABQB 521 (CanLII)

Page: 68

C a small glass bowl with cocaine residue and three elastics, located

inside a kitchen drawer beside the refrigerator;

C a spoon with cocaine residue, located beside the scale on the

kitchen counter;

C a black Motorola cell phone with charger on the kitchen counter;

C nine bundles of Canadian currency totalling $20,990.00 found

above the microwave. Five of the bundles had $2,000.00 each.

Two bundles had $1,000.00 each. One bundle had $990.00. There

were eight sub-bundles of $1,000.00 each. The bundles and most

of the sub-bundles were secured around the middle by an elastic;

C a paper with names associated to dollar figures (a tick or score

sheet), located in a kitchen drawer beside the refrigerator;

C a blue Motorola cell phone with charger on the kitchen counter;

C a Kyocera cell phone with charger on the kitchen counter;

C another tick or score sheet located in a kitchen drawer beside the

refrigerator;

C another spoon with cocaine residue, located in a kitchen drawer

beside the refrigerator;

C a Rubbermaid container holding baking soda, located on top of the

kitchen cupboard;

C forty-four sandwich bags with their corners cut off, located in the

garbage container.

From the living room:

C a loaded .45 calibre Colt handgun with attached silencer and seven

rounds of ammunition. The handgun was on a shelving unit;

C a Motorola flat screen cell phone with display reading “Letisha,”

located on a stand beside the sofa chair.

From the garbage in McDonald’s residence:

2012 ABQB 521 (CanLII)

Page: 69

C 68 plastic baggies with their corners cut off.

[274] There were three vehicles parked in the driveway of the residence at the time the search

warrant was executed: a black 2002 Denali Yukon registered to McDonald; a red 2002 Pontiac

Sunfire registered to Leticia Peters’ father; and an SUV driven by Justin Lake. The following

items were seized as a result of the search of the first two vehicles:

From McDonald’s Yukon

C six pre-packaged spitballs of powder cocaine with a total weight of

6.6 grams, located in the centre console between the front seats;

C a blue Motorola cell phone located inside the back seat cup holder.

From the Sunfire

C engine lubricant container with a false compartment containing

seven small baggies of crack cocaine with a total weight of five

grams and two small baggies of powder cocaine with a total weight

of about 1.6 grams, located on the back seat of the vehicle.

(b) October 27, 2005 - Flight’s vehicle stop

[275] On October 27, 2005, at around 9:03 p.m., the RCMP stopped Flight while he was

driving eastbound on the TransCanada Highway approaching Banff. He was the sole occupant of

the vehicle, a 1990 Oldsmobile Cutlass. The RCMP arrested Flight and searched his vehicle. The

following items were seized from the vehicle:

A black duffel bag located in the trunk, containing:

C six packages of marijuana with a total weight of about six pounds;

C a slip of paper with a telephone number on it.

A large paper Old Navy bag located in the trunk of the vehicle containing:

C rubber gloves;

C a sales receipt;

C a plastic Old Navy bag containing

2012 ABQB 521 (CanLII)

Page: 70

- one brown brick of cocaine with the “AXE” logo

stamped into the cocaine brick and “1039" written

on the packaging, with a total weight of 996 grams;

- one brown brick of cocaine with the “AXE” logo stamped

into the cocaine brick and “1043" written on the packaging,

with a total weight of 997 grams;

- one white brick of cocaine with no markings on the

packaging, with a total weight of 1011 grams;

- one white brick of cocaine with “C” written on one side and

“S” on the other side of the packaging, with a total weight

of 1004 grams.

[276] The RCMP also observed a number of items in Flight’s possession and in his vehicle

which they did not seize, including:

C a Sanyo Solo cell phone on Flight’s person;

C a Samsung cell phone on Flight’s person;

C a bundle of Canadian currency secured by elastic bands located in the

glove box of Flight’s vehicle.

[277] On November 10, 2005, Sgt. Anderson called the Red Deer RCMP City Drug Section for

assistance with a vehicle stop. The RCMP stopped Caines in Red Deer. He was driving a 2000

Corvette and was the sole occupant of the vehicle. During the vehicle stop, the police searched

the vehicle and seized the following items:

C a knapsack from behind the passenger seat containing a Safeway bag with

$95,620.00 in Canadian currency, bundled in various amounts (including

bundles of $1,000.00, $1,020.00, $5,000.00, $1,600.00, $2,000.00 and

$8,000.00);

C a Motorola camera flip-phone seized from the centre console of the

vehicle;

C a silver Motorola flip cell phone seized from the centre console;

2012 ABQB 521 (CanLII)

Page: 71

C a paper identified by Marche as a “tick sheet” with names and numbers on

it, seized from the front pouch of a nylon bag found in the rear seat area of

the vehicle.

(d) November 15, 2005 - Van Den Hurk shooting

[278] The parties agree that on November 15, 2005, Van Den Hurk contacted 911 to report that

he had been shot. This incident occurred in Ridge Meadows, British Columbia. The RCMP

responded to the call and found Van Den Hurk in the driver’s seat of his car, parked in the

Ramada Inn parking lot.

[279] The RCMP seized items in his possession, including:

C a cell phone with subscriber of “Joe Blow.”

C seven other cell phones;

C $22,650.00 cash in a bag.

(e) November 24, 2005 - Vehicle stop of Marche and Weiss

[280] On November 24, 2005, at approximately 2:30 p.m., the RCMP stopped Marche and

Weiss in Red Deer. Marche was the driver and Weiss the passenger. The police searched

Marche’s truck and seized the following items from the truck and the persons of Weiss and

Marche:

C a 992 gram brick of cocaine with “1016" written on the package and two

stars stamped into the brick, located in a concealed compartment in the

vehicle;

C a 1.001 kilogram brick of cocaine with “1022" written on the package and

two stars stamped into the brick, located in the concealed compartment;

C a 990 gram brick of cocaine with “1020" written on the package and two

stars stamped into the brick, located in the concealed compartment;

C a black “One Touch” ultra glucose test strip container with white powder

residue around the lid, located in the concealed compartment;

C a black “One Touch” ultra glucose test strip container with the number “3"

written on it in pen and containing three grams of cocaine, located in the

concealed compartment;

2012 ABQB 521 (CanLII)

Page: 72

C a white 10 mg oxycontin container containing 1.4 grams of cocaine,

located in the concealed compartment

C a clear plastic bag containing three grams of cocaine, located in Weiss’

purse;

C 0.1 grams of cocaine wrapped in foil, located on Weiss’ person;

C a green LG 125 Telus cellular flip phone from the person of Debbie Weiss.

Cst. Rajman went through the content of the phone and recorded the

content in his notebook with 159 entries in the contact list, 19 outgoing

calls, 20 incoming calls, 20 missed calls, seven sent text messages, two

text messages received;

C a black Sony pixel digital camera also with several pictures stored in it,

including one of a large stack of cash, located in the luggage in the trunk;

C $210.00 in Canadian currency from Weiss’ person;

C a black “One Touch” ultra glucose test strip container with the number “2"

written on it in pen and containing 1.3 grams of cocaine, located on

Marche’s person;

C a black “One Touch” ultra glucose test strip container with the number “5"

written on it in pen and containing 1.4 grams of cocaine, located on

Marche’s person;

C a black “One Touch” ultra glucose test strip container with the number “1"

written on it in pen and containing 0.2 grams of cocaine, located on

Marche’s person;

C $1,573.30 in Canadian currency in denominations of $100.00 and less,

seized from Marche’s person;

C a black and red Audiovox Telus cell phone from Marche’s person.

(f) December 1, 2005 - Search of King rental property, Fort

McMurray

[281] The parties agree that on December 1, 2005, the RCMP seized five one-kilogram

packages of cocaine from the basement suite of a property in Fort McMurray.

2012 ABQB 521 (CanLII)

Page: 73

[282] They agree that in 2005, Ricco King owned the residence as a rental property. It was

managed on his behalf by Georgina Bourque of Northern Property Management Ltd.

[283] The residence was a bungalow with a separate livable basement suite. Cameron Blair and

his wife Brenda Blair rented and lived on the main floor and Steven Gale rented the basement

suite. Mr. Gale was evicted from the basement suite approximately two months prior to the

December 1, 2005 seizure, leaving the basement suite vacant at the time of the seizure. Cameron

and Brenda Blair continued to live on the main floor. Two keys were required to access the

basement suite - a key to the main door leading to a foyer and a key to the basement suite door.

However, the door to the basement suite was knocked off its hinges at the time Steven Gale was

evicted, allowing access to the basement suite after entering the main door leading to the foyer.

[284] As of December 1, 2005, there were only four keys to the main door. Mr. Gale had one,

the Blairs had two and one was missing.

[285] On November 28, 2005 (the Monday prior to the seizure), Ricco King asked Ms. Bourque

for a spare key to give to his father so he could gain access to the basement suite to review its

condition. King had intended on repairing the damage to the basement suite left by Mr. Gale. Ms.

Bourque told Ricco King she did not have a key to give him and suggested he contact Richard

Bass, a carpenter in Fort McMurray, to do the repairs to the suite.

[286] That evening at about 8:00 p.m., after speaking with Ms. Bourque, Ricco King contacted

Cameron Blair, who agreed to leave a key to the main door in the mailbox for Ricco King’s

father so he could gain access to the basement suite to estimate the cost of repairing the damage

done to the suite. After this conversation, Mr. Blair left the key in the mailbox. An hour later,

Ricco King’s father Lloyd King came and got the key. He and Cameron Blair entered the

basement suite to determine the condition in which it had been left. Sometime after 10:00 p.m.,

Brenda Blair was awoken by the slamming of the door to the residence.

[287] On the evening of November 29, 2005, Cameron Blair retrieved the key he had placed in

the mailbox for Lloyd King the day before.

[288] Between Monday November 28, 2005 and Wednesday November 30, 2005, Ricco King

contacted Richard Bass and asked him to provide a quote for the required repairs to the basement

suite. Ricco King advised Mr. Bass that a key would be left in the mailbox so he could gain entry

to the suite.

[289] On the evening of November 30, 2005, a man came to the residence looking for Mr. Gale.

He knocked on the main door and Cameron Blair spoke to him. After Mr. Blair told the man that

Mr. Gale had moved out five weeks earlier, the man looked at the basement suite entrance and

left.

2012 ABQB 521 (CanLII)

Page: 74

[290] On December 1, 2005, prior to 10:30 a.m., Lloyd King returned to the residence and

obtained the basement suite key from Mr. Blair. Lloyd King and Mr. Blair again looked around

the basement suite and the main floor in regard to the repairs needed. They did not look in the

bathroom of the basement suite. At 10:30. a.m., Mr. Bass arrived at the residence to view the

basement suite. The key was not in the mailbox. As a result, he asked Mr. Blair to give him

access to the residence. Mr. Bass walked through the basement suite for the purpose of providing

a quote for the necessary repairs. In the bathroom shower, he found five one-kilogram packages

of cocaine wrapped in brown paper, some of which had a reddish substance on the outside, later

determined to be cayenne pepper. Mr. Bass thought the packages had meat inside due to the

reddish substance. He opened one over the bathroom sink using an exacto knife. This caused

cocaine to spill out. He then realized what was inside the packages and called the police from the

telephone on the main floor.

[291] The parties agree that neither Mr. Bass nor Mr. Blair added to, subtracted from or

changed the nature of the substance in the packages. They agree that Cameron and Brenda Blair,

Mr. Bass and Mr. Bourque did not possess or know of the packages of cocaine prior to Mr. Bass’

discovery on December 1, 2005.

[292] Constable Rajman identified the following items seized that day from the basement suite:

C 972 gram brick of cocaine seized from the bathroom sink counter;

C 970 gram brick of cocaine from stand-up shower;

C 980 gram brick of cocaine from stand-up shower;

C 986 gram brick of cocaine from stand-up shower;

C 996 gram brick of cocaine from stand-up shower.

(g) December 14, 2005 - Search of Caines’ Fort McMurray

residence

[293] On December 14, 2005, at about 6:05 p.m., the RCMP executed a search warrant at

Caines’ Fort McMurray residence. A dark coloured Jeep Cherokee arrived at 6:05 p.m. Caines

was the passenger and Gregoire the driver. Pam Peters arrived in a white Escalade at about 6:47

p.m.

[294] Caines was placed under arrest for investigative detention. According to Cpl. Gibson,

Caines said someone else lived downstairs. Caines provided his cell phone number as one

registered to a Dwayne Caines. He also provided his land line number. Corporal Chris

Bannerholt (then Cst.) assisted with the search of Caines’ Fort McMurray residence. He seized a

cell phone from the kitchen counter.

2012 ABQB 521 (CanLII)

Page: 75

[295] The parties agree that Cpl. Claudia Beauregard of the RCMP participated in the search of

Caines’ residence and made the following observations:

C in the kitchen there were a number of cabinets. On the top shelf of one of

the kitchen cabinets, there was an original official copy of a Canada

Customs and Revenue Agency document addressed to Caines at that

address. It related to Goods and Services tax credit for the years 1998,

1999, 2000 and 2001. The document indicated that Caines had declared a

net income of one dollar in each of those income tax years.

C On the top shelf of one of the kitchen cabinets, there was a registered

owner’s card for the 2000 Corvette driven by Caines. The registered owner

was listed as Caines Sr.

C In the kitchen there was a counter with a microwave. On the counter

beside the microwave there was a Uniden Bearcat radio scanner with 30

channels and 10 bands. The scanner was in functional working condition.

C There was a linen closet on the second floor between the master bedroom

and the bathroom. In it, there were a number of Alberta driver’s licences.

One was issued in the name of Ricco King. The second was in the name of

Gregoire.

[296] During the search, there were a number of documents seized from the kitchen hutch,

microwave cabinet, and top of the fridge in the kitchen and from a cabinet in the computer room,

as well as photographs. Corporal (then Cst.) Bannerholt identified the following individuals in

the photographs: Caines, Pam Peters, Leticia Peters, McDonald, Scott Cortes, Greg Kjelshus, and

Ricco King. Also seized were a Royal Sovereign money counter from the third floor bedroom

(3S51-T-10), documents and driver’s licences from the third floor closet, documents from the

walk-in closet in the master bedroom, documents from the third floor bedroom/weight room,

documents from a purse in the Cadillac, and a cell phone located on the kitchen counter.

[297] Constable Bannerholt also searched the master bedroom and found a small piece of paper

with the following information: MK; Josh 784; Chad [...] 7000; Darren.

(h) January 17, 2006 - Cardinal search

[298] On January 17, 2006, at about 2:00 p.m., the Fort McMurray RCMP Drug Unit searched

the Fort McMurray residence of Cardinal and Melissa Shephard. Ms. Shephard and Harry

Breakell were present at the time of the search.

2012 ABQB 521 (CanLII)

Page: 76

[299] Corporal Gibson testified that he assisted in the search. He was the affiant for the search

warrant, which was based on information from Marche that there was a large amount of cocaine

there, as well as information from two others.

[300] The following items were seized during the search:

From the kitchen:

C plastic wrapping with white residue, found in the garbage;

C a plastic bag wrapped in packing tape, found in the garbage;

C Downey fabric softener sheet with white residue, found in the

garbage;

C a plastic bag with grease residue, found in the garbage;

C an empty plastic bag with tape, found in the garbage;

C an empty plastic bag with grease residue, found in the garbage;

C a metal pot containing 214 grams of crack cocaine and a spoon,

located under the kitchen sink;

C a cell phone, found in a purse.

From the living room:

C six cell phones, from on top of the computer desk;

C Canadian currency, found on top of the computer desk;

C four cell phones found in different areas of the living room.

From the master bedroom:

C a large bundle of Canadian currency;

C Canadian and American currency found in the top dresser drawer;

C credit cards in the name of Jeremy Cardinal, found on top of the

dresser;

2012 ABQB 521 (CanLII)

Page: 77

C a cell phone, on the floor on the left side of the dresser;

C Canadian currency on the floor near the cell phone;

C a cell phone located on the nightstand beside the bed.

From the second bedroom:

C a cash counting machine, found on the floor;

From the hallway closet:

C a blue and white “Max Scoop” kitty litter box containing a grey

plastic bag with 58.4 grams of cocaine, a clear plastic baggie with

226.4 grams of cocaine and a clear plastic Wal-Mart grocery bag

with 500 grams of cocaine.

[301] The total amount of currency seized from the residence was $11,885.00 Canadian and

$325.00 American.

[302] Sergeant Kirk Peyton of the RCMP took part in the search. He testified that in addition to

the above-noted items, the following also were seized:

C in kitchen - Nestea container with a false bottom, with smaller pill

containers inside

C in kitchen drawer - ziplock sandwich bags similar to those in the kitty litter

container.

(i) January 19, 2006 - Search of Alcantara

[303] On January 19, 2006, at about 4:00 p.m., Alcantara was arrested and searched at a

Smitty’s restaurant in Kingsway Garden Mall, Edmonton. A Blackberry cell phone was seized

from him at the time and the content of the Blackberry examined.

(j) February 9, 2006 - Search of Alcantara’s Edmonton

residence

[304] On February 9, 2006, at about 6:00 p.m., the RCMP executed a search warrant at

Alcantara’s Edmonton residence. The items seized included

C a hot shot taser found on the nightstand in the master bedroom;

2012 ABQB 521 (CanLII)

Page: 78

C a Hayman metal floor safe from the floor of the garage;

C photographs of Alcantara on a Harley Davidson V Rod motorcycle, found

on the kitchen counter;

C four butterfly knives from the top dresser drawer in the basement;

C a Luger pistol and clip from the south wall shelf in the garage;

C a Netscan police radio scanner from the south wall shelf in the garage;

C a machete in a sheath from the nightstand in the master bedroom;

C a Musclemen taser from inside the safe in the garage;

C a silver Telus LG cell phone from inside the safe in the garage;

C a radio frequency jamming device from inside the safe in the garage;

C a plastic knife in a sheath found in the safe in the garage;

C a CIBC cheque book in Alcantara’s name with a different Edmonton

address, for the Kennedale Branch of CIBC, located inside the safe in the

garage;

C a plastic bag from the safe in the garage containing an Alberta driver’s

licence in Alcantara’s name with his Edmonton address; and paper saying

“Joseph Victor Sanchez” with Surrey, British Columbia address; and a

billfold with 22 pieces of identification;

C 11 documents in the name of Joseph Victor Sanchez, some with

photographs of Alcantara on them, including two Canada identification

cards, certificate of Canadian Citizenship, employee ID for Quinette Coal

Ltd., British Columbia identification card, Yukon driver’s licence,

Government of Canada social insurance card, Hong Kong driver’s licence

(no photo), a Nova Scotia birth certificate, a curling club identification

card, and a Fisheries and Oceans commercial fishing licence; and

C 11 pieces of ID from the billfold in the name of Andrew James Santos,

with an address in Surrey, British Columbia, some with photographs of

Alcantara, including an employee identification from Ocean Fisheries Ltd.,

a certificate of Canadian Citizenship, a Yukon driver’s licence, an Ontario

birth certificate (no photo), a Fisheries and Oceans commercial fishing

2012 ABQB 521 (CanLII)

Page: 79

licence, a British Columbia identification card, a Hong Kong driver’s

licence (no photo), a Government of Canada social insurance number card,

a curling club card and two Canada identification cards;

C a contact list for the Edmonton HAMC Fort Road clubhouse, including

names and phone numbers of “Members,” “Prospects,” “Hangarounds”

and “Friends;”

C photographs of Alcantara on his Harley Davidson bike, with Alcantara

wearing a HAMC Alberta vest, along with another man similarly attired;

two 2005 HAMC calendars, one hanging over the desk and a second with

the words “British Columbia;” and HAMC placards saying: “support your

local big red machine, Sherbrooke” and “support your local red and

white.”

[305] David Kenneth Edwards, an officer with the RCMP, participated in the search. He

searched a black Cadillac CTS parked in the front driveway (registered to Alcantara). He found

money in the console of the car and asked Alcantara how much there was. Alcantara responded:

“less than $1,000.” About two weeks later, he returned to the residence and seized the Cadillac

and a Harley Davidson motorcycle (registered to Manuel Joseph Alcantara).

(k) March 4, 2006 - Farhan Sattar vehicle stop near Lake

Louise

[306] On March 4, 2006, the RCMP conducted a traffic stop in Lake Louise, Alberta on a

black 2004 Hummer driven by Farhan Sattar, who was arrested for breach of recognizance.

Among the items seized incidental to his arrest were: a Siemens cell phone; a Nokia 6030 cell

phone; an LG 2000 cell phone; and a Blackberry 7250.

(l) May 31, 2006 - Search of Caines’ Calgary campsite

[307] On May 31, 2006, at about 9:10 a.m., the RCMP executed a search warrant at a

campground in Calgary where Caines had rented a campsite.

[308] Officer Edwards of the RCMP testified that he participated in the search. Caines and Pam

Peters were present. The following items were seized:

C a 41 foot 2005 Sportsman fifth wheel trailer and toy hauler;

C two yellow quads (a 2003 Suzuki ATV and a 2004 Suzuki Quad Sport

ATV) found in the toy hauler at the back of the fifth-wheeler;

C a 2005 Ford F350 Dually Ford pick-up truck, used to haul the fifth wheel;

2012 ABQB 521 (CanLII)

Page: 80

C a 2005 Yamaha YZFR1 motorcycle, in the back of the truck;

C a grey/black 2006 Yamaha Grizzly 660 all-terrain vehicle;

C a money counter, located in the living room area of the fifth wheel trailer;

C a Motorola cell phone.

(m) May 31, 2006 - Search of Caines’ Fort McMurray

residence

[309] Sergeant Carolin Respet of the RCMP testified that she assisted with execution of a

search warrant at Caines’ Fort McMurray residence on May 31, 2006. She photographed the

house, which she described as having a very large yard, and the contents, which including a big

screen projection system and a weight room with new equipment such as a universal system.

According to Sgt. Respet, the following items were seized:

C a 42" television;

C a jewellery box with what appeared to be a heavy gold link chain;

C a diamond ring;

C a ring with rubies and diamonds;

C four men’s gold rings;

C 11 gold bracelets;

C five gold necklaces identified as such by weight and length;

C six watches: Oscar de la Renta, Timex Indigo, Movado, Tissot, Esquire

Swiss, Bulova;

C a black 2007 Cadillac Escalade;

C a 2006 Skidoo MZX;

C a Peace Mini-Chopper ;

C a 2005 Arctic Cat snowmobile M7;

2012 ABQB 521 (CanLII)

Page: 81

C a 2005 Arctic Cat snowmobile F7.

[310] The parties agree that the following items were seized as a result of the search of Caines’

Fort McMurray residence:

C a photograph from inside the kitchen cabinet in the nook area of the

kitchen;

C a notebook and piece of paper with handwriting from the right-hand

drawer of the kitchen cabinet in the nook area. One page contained a list of

initials or names with corresponding numbers. The Crown contends this is

a list of drug proceeds owed to Caines by a number of distributors, similar

to the tick sheet seized from him on November 10, 2005. The list includes

MK (Marche), GB (Bird), Card (Cardinal), Jody (Smith) and others. (S51-

T25)

C utility bills from inside the right-hand drawer in the kitchen nook cabinet;

C financial documents in the name of 642764 Alberta Ltd. from inside the

left-hand drawer of the kitchen cabinet in the nook area;

C a colour photograph of Alcantara with a baby from inside the kitchen

drawer beside the fridge;

C documents and owner’s manual for Arctic Cat from inside the kitchen

drawer under the microwave;

C an owner’s manual for the Corvette and other documents from inside a

free standing cabinet in the den;

C documents for a Suzuki Z400 motorcycle with names of Caines and Mike

Klippenstein - from Cycle Works - from inside a blue plastic folder in the

den;

C a money counter seized from off the dining room table in the dining room

and the box for it;

C a certificate of origin for model a 41KX2L Sportster fifth wheel trailer

from Trailblazer RV Centre in Edmonton in a free standing cabinet in the

basement kitchen nook;

C a bank receipt from Capital City Savings from the headboard in the master

bedroom;

2012 ABQB 521 (CanLII)

Page: 82

C bank account information from the floor in the master bedroom;

C invoices for Pam Peters at this address from the vanity drawer in the

master bedroom bathroom;

(n) May 31, 2006 - Search of Caines’ Calgary residence

[311] On May 31, 2006, at about 9:15 a.m., the RCMP executed a search warrant at Caines’

Calgary residence. The residence was described by one witness as a three to five years old three

bedroom house of about 1,700 to 1,800 square feet.

[312] Sergeant Richard Brent Kriwokon (then Cpl.) with Edmonton Integrated Proceeds of

Crime [IPOC], assisted with the search at this residence. The following were among the items

seized as a result of the search:

C A white extended cab F150 (registered to Trevor Flight) parked in the

driveway. Two syringes were found in a plastic bag in the back seat of the

truck;

C a 2000 Chevrolet Corvette (registered to Caines Sr.) parked in the garage.

From the kitchen

C a key and Capital City Savings statement document inside a black

purse located in the kitchen nook;

C documents, including purchaser’s acknowledgement, statutory

declaration and tenancy at will agreement relating to the purchase

of Caines’ Fort McMurray residence, acknowledged by Pamela

Peters, from on top of the fridge;

C two keys with remote car starter from inside a cupboard beside the

microwave;

C two keys with Yamaha company logo from inside a cupboard

beside the microwave;

C Alberta registration in the name of Caines Sr. for 2005 Yamaha

YZF-Ri motorcycle and two insurance certificates in his name for

same vehicle and 2003 Cadillac Escalade 4-door from the

cupboard beside the microwave in the kitchen;

2012 ABQB 521 (CanLII)

Page: 83

C a handwritten note to “Jeff” from “John” from inside the cupboard

beside the microwave;

C Pink slip, AMA insurance for Pamela Peters from the countertop

beside the microwave;

C a World Health Club membership for Letisha Peters from off the

cupboard by the stove;

C set of Royal Bank cheques from Crowfoot Centre branch in

Calgary, from off the cupboard by the stove;

C steroids in the fridge.

From the bottom cupboard next to the fridge in the kitchen:

C a pay stub in the name of Pam Peters dated 2005/02/25 from

Cowboys;

C an Enmax statement in the name of Ricco King, dated 2005/06/06

at [...] Valley Crest Close;

C a Direct Energy statement dated 2006/07/04, in the name of R & M

Prop Ltd. at Caines’ Calgary address;

C a Davenport Racing receipt in the name of Jeff Caines at his

Calgary address, dated 2005/08/16;

C a Coast Wholesale Appliances receipt to R & M Properties at an

address in the same subdivision in Calgary as Caines’ and Ricco

King’s residences, dated 2004/06/10.

From the countertop beside the microwave:

C a pink slip for a 2000 Corvette, dated 2006/08/20, in the name of

Caines Sr.;

C Alberta Registration for the 2000 Corvette in the name of Caines

Sr.;

C an Enmax bill in the name of Ricco King at Caines’ Calgary

address, dated 2006/05/03;

2012 ABQB 521 (CanLII)

Page: 84

C a Direct Energy bill in the name of R & M Property Ltd. at Caines’

Calgary address, dated 2006/03/28.

From the living room table:

C envelopes addressed to Pamela Peters and Melissa White at

Caines’ Calgary address from Goodlife Fitness Club;

C an envelope from Trail Appliances to Nigel Medworth at a Calgary

address in the same subdivision as Caines’ Calgary residence but

shipped to Caines’ Calgary address;

From the master bedroom

C a wallet containing a driver’s license in Jeff Caines’ name, a CIBC

Visa card, a Bubbles bonus points card, as well as a $100 bill.

C a cash counting machine box in the closet, with a plastic baggie

inside it with writing on it saying:

Joey $400 700

Ow** $ 350

C a black t-shirt with the logo “Support Your Red Machine, Nomads

Alberta in the closet.

From the spare bedroom:

C an invoice from Don Wheaton Chev Olds dated November 10,

2005 to Jeff Caines regarding a 2000 Corvette, from the top drawer

of the dresser;

C the sum of $4,550.00 in cash found in the night stand;

C a gold and diamond Rolex Oyster watch from the night dresser.

(o) May 31, 2006 - Search of Ricco King’s residence

[313] On May 31, 2006, at about 1:22 p.m., the RCMP executed a search warrant at Ricco

King’s Calgary residence. A grey Motorola cell phone was seized from the kitchen island and a

blue and grey Samsung cell phone from above the wine rack in the kitchen.

2012 ABQB 521 (CanLII)

Page: 85

(p) June 28, 2006 - Search of Weiss’ room at Podollan Inn &

Rez, Fort McMurray

[314] On June 28, 2006, at about 12:46 p.m., the RCMP executed a search warrant at Weiss’

hotel room. The following items were seized:

C controlled substances, including MDMA, Oxycodone, cocaine, morphine,

cannabis resin, Seroquel and Mogadon;

C $6,230.00 in cash;

C seven cell phones, a digital scale, a fork with cocaine residue, a silver pot

and spoon with cocaine residue, a dessert plate with cocaine residue, a

coffee pot with residue, a score sheet, plastic baggies and a bag of elastic

bands.

4. Marche’s evidence

(a) Evidence from the preliminary inquiry

[315] Marche was a drug dealer in Fort McMurray in 2005 and 2006. He became a Crown

informant and was a witness at the preliminary inquiry in this matter. By then, he and Weiss were

in the Source Protection Program. He testified that he was part of a group of drug dealers in Fort

McMurray, of which Caines was the leader.

[316] Marche died in November of 2011.

[317] A vigorously contested voir dire was held to determine whether his evidence from the

preliminary inquiry would be admitted into the trial. I decided that Marche’s evidence was

admissible, subject to a Vetrovec and Potvin warning. I held in the Marche Decision at paras 2

and 3 and 146 to 147 that:

Marche testified that he was a high level drug trafficker in the Caines cocaine

trafficking organization. According to the evidence admitted on this voir dire, he

was addicted to drugs, including Percoset, Oxycontin, cocaine and methadone,

and was in debt to drug traffickers. He was a confidential informant to the RCMP

and provided information in 2005 and 2006 during this investigation for which he

received payment. Marche and his fiancé were found in possession of three

kilograms of cocaine in November of 2005, and she was found in further

possession of drugs in June of 2006. However, charges did not proceed against

them as a result of his agreement to testify in these proceedings. On November 20,

2011, while in the Source Witness Protection program, Marche died.

2012 ABQB 521 (CanLII)

Page: 86

The Crown has applied to admit Marche's preliminary inquiry evidence. In the

absence of Marche, that evidence is hearsay and inadmissible unless admissible

under s 715 of the Criminal Code ("Code") or under the principled exception to

the hearsay rule. Counsel for Alcantara and Knapczyk are opposed to the Crown's

application on the basis that the requirements of s 715 have not been met and the

principled exception to the hearsay rule does not apply in these circumstances.

. . .

Marche's preliminary inquiry testimony is admitted into evidence in the trial for

the truth of its contents. The Marche evidence concerning Caines' mention of the

Hells Angels and it being Caines who told Marche about the protection agreement

and with whom must be approached cognizant of the internal inconsistencies in

that evidence and with caution. The Potvin and Vetrovec warnings must be

applied to his evidence. It will be measured and weighed with the balance of the

admissible evidence in this trial, and remains subject to other evidentiary

arguments (such as application of the co-conspirator's exception to hearsay). The

ultimate reliability of and weight to be ascribed to that evidence remains to be

determined.

The transcript of Marche's evidence was admitted on the voir dire and,

presumably, will be entered as evidence in the trial proper without further proof,

along with the audio-tape of the evidence. I reserve jurisdiction to deal with these

outstanding issues.

(i) Summer 2004 to Summer 2005

[318] Marche testified at the preliminary inquiry that he had known of Caines for seven or eight

years and had known him personally for two to three years. He said that in the summer of 2004, a

friend of his from Edmonton came to visit him in Fort McMurray. The friend was selling drugs

and was in debt to Sekulich. The friend ended up selling drugs out of Marche’s apartment and

Marche started to help him by driving him around to sell the drugs. There were occasions when

his friend asked him to go on his own to bring the drugs to someone. Marche said that he started

to develop a taste for the money involved and began to traffic. At the time, Marche was

purchasing the drugs from his friend, who was buying them from Sekulich. Sekulich ended up

going to jail for a few weeks. When he returned, Marche started buying drugs directly from him,

at most a kilogram at a time. By then, Marche was trafficking on a daily basis, usually in the

evenings.

[319] Sekulich returned to jail in the fall of 2004. Marche needed a new supplier. He met

Caines at a friend’s business place and asked him where he could get drugs. Caines said that he

did not deal with them but knew somebody who did - another Chad. Marche contacted Chad,

purchased an ounce of cocaine from him, sold it and returned to Chad for more. This happened a

2012 ABQB 521 (CanLII)

Page: 87

number of times. On one occasion when he called Chad, Caines answered the phone and met

Marche downtown. Marche bought an ounce of cocaine from him, for about $1,400. He sold it

and called Chad’s number again, which was answered by Caines. He bought another ounce from

him. The same thing happened the next day. Caines met Marche in front of his apartment

building and brought him a quarter pound of cocaine (four ounces). Marche paid him for one

ounce and owed him for three ounces. His recollection was that he paid $1,200 an ounce that

time. Marche cooked the cocaine into crack, separated it into smaller packages and sold it. He

soon ran out of it and got another quarter pound from Caines, paying for half of it and owing for

the other half. He cooked it into crack, divided it up and sold it fairly quickly. The same thing

happened another two times.

[320] Four or five days after he first obtained a quarter pound from Caines, he went to Caines’

home. Caines gave him a kilogram of cocaine and told him to weigh it out and separate it into

two packages, one for himself and the other which he was to bring to another person. He did that.

He owed Caines for his half but not for the other person’s half. Marche cooked half of his

amount into crack and packaged the rest into one ounce packages. Around that time, Caines gave

Marche his personal phone number. Marche let Caines know when he had sold all of the cocaine.

He met Caines at his home again and got another kilogram of cocaine, all for him that time. He

did not believe he paid anything in advance for this kilogram. He brought it back to his place,

cooked some of it into crack, and packaged it up into ounces.

[321] By that point in time, he was selling to other traffickers, who were selling the cocaine to

the end users. He said that he started selling to dealers because he was selling for about $1,400 an

ounce rather than the $1,600 most people were charging, and he got Sekulich’s business and

some from word of mouth. The original friend who got him into selling also had contacts.

Marche said it took three to four days to sell a kilogram of cocaine. He then contacted Caines

again and they followed the same procedure.

[322] Marche testified that once, in the fall of 2004, when Caines was out of town, Jody Smith

dropped off four kilograms of cocaine for him. Marche paid Caines for it. Up until Sekulich got

out of jail in the late fall or early winter of 2004, Marche was selling one to five kilograms of

cocaine a week. Sekulich wanted Marche to start buying from him again, but Marche continued

to buy from Caines until January or February 2006. He was selling a little less by then, one to

two kilograms a week, because Sekulich started taking back a lot of his customers.

(ii) July 2005 - Showgirls incident

[323] Marche gave evidence about an incident that he said occurred in the summer of 2005,

possibly in July, at a nightclub called “Showgirls” in Fort McMurray. Marche said he was

instructed by Caines to drive around and find “riffraff;” that is, guys he and Caines knew were

causing problems for the low level dealers and end users and were breaking into people’s houses

and stealing drugs. He and a few other guys rounded them up and brought them to Showgirls.

2012 ABQB 521 (CanLII)

Page: 88

[324] He said he received a call from Caines, who told him that he was to meet him at

Showgirls. He did not know the purpose of the meeting at the time. He got there, was instructed

by Caines to gather anybody causing problems for his dealers or the dealers of the others in the

group or who were selling cocaine for cheaper and to bring them there. He brought three or four

people to Showgirls, making a separate trip each time. He had a group of his dealers with him to

act as strong arms. They would pick up the problem person and when they got back to Showgirls,

the person they had picked up would get out of the vehicle and Caines would lead that person to

another group of people, who would speak to him. The only person Marche recognized at

Showgirls was Caines. After about five minutes, the problem person would return to Marche’s

vehicle and Marche would drive that person home and give him a warning not to cause any more

problems. He said Caines did not say why he wanted these people gathered up and Marche did

not know.

[325] In direct examination, Marche was asked and testified to the following:

Q After these meetings [the ones at Showgirls] were completed, did you have

a conversation with Mr. Caines in regards to who those individuals were?

A I don’t remember.

Q Do you recall providing information in regards to this issue in the

statement that you were taken – taken from you by Ms. Espeut and

Corporal Anderson and Corporal Gibson in the fall of 2007?

A Yes.

Q Would it assist your memory if you were able to refresh it from that

statement?

A Yes, it would.

. . .

Q ... I’m going to refer you to the very bottom of 496 and approximately a

third of the way down to page 497. I will just leave that for you.

A Okay.

Q Does that assist your memory?

A Yes.

2012 ABQB 521 (CanLII)

Page: 89

Q Do you recall Mr. Caines advising or referring to – and when I say

referring to someone, not necessarily names, but making references to who

the individuals were?

A I don’t remember a specific conversation. I remember him referring to

them as the Hell’s Angels.

Q And when you say “him” referring to “them” --

A Jeff Caines.

Q Okay. And referring to whom? Who was Jeff referring – you indicated he

was referring to “them” as the Hell’s Angels. Who is the “them”?

A Just people that he had dealt with, not specifically the day in question at

Showgirls.

Q When in relation do you – was this conversation in relation to the

timeframe where that meeting occurred at Showgirls?

A I don’t remember.

Q Do you recall if it was before or after or during?

A I believe – I believe it was after.

Q Could you give a general timeframe? Like, not necessarily a specific date

after, but about how much after it would have been?

A No, I can’t.

Q Do you recall a conversation with Mr. Caines speaking about the meeting

and after the – after those meetings occurred, but speaking about what may

or may not have occurred during the course of the meeting or the purpose

of the meeting?

A The purpose of the meeting was to basically –

Q Sorry. Sorry, carry on.

A Just to make it so everybody had to purchase cocaine through him, Jeff

Caines.

2012 ABQB 521 (CanLII)

Page: 90

Q And where do you get that understanding from?

A From Jeff Caines himself.

. . .

Q Okay, Do you recall any discussions with Mr. Caines regarding any

payments that he may have to make?

A Yes, I do.

Q What do you recall?

A I remember talking to him about him paying for protection. I don’t

remember a specific amount, but I would think it to be around $20,000 a

week or something or a month.

Q Where did you get that information from?

A From Jeff Caines himself.

Q Was there any indication – when you say protection, what are you referring

to, protection?

A I don’t know if it’s so much protecting him, but just to give him exclusive

rights to Fort McMurray to sell cocaine.

Q Was there any indication by Mr. Caines who that was being paid to?

A I believe he stated to the bikers. That was it.

Q Do you recall that?

A Yes.

[326] During his cross-examination, Marche was asked about the Showgirls incident. The

following exchange then took place:

Q Then you would leave. And there was some indication from you yesterday

about a reference to who these people were, but you’re not entirely sure

who they were.

A No, I’m not.

2012 ABQB 521 (CanLII)

Page: 91

Q You didn’t meet any members of people – or, rather, you didn’t meet any

people at this meeting who held themselves out to you as members of the

Hells’ Angels?

A No, I didn’t.

Q No one was at this meeting wearing vests or colours purporting to

represent the Hells’ Angels?

A No, there wasn’t.

Q And you don’t know whether, in fact, any people at this meeting were

members of the Hells’ Angels?

A No, I don’t.

Q You could not say whether Mr. Caines deals directly with the Hells’

Angels?

A No, I can’t.

Q He did not mention to you any names of people at any time as being

members of the Hells’ Angels?

A I don’t believe I’ve even heard the name Hells’ Angels come out of Jeff’s

mouth.

...

Q There was also some discussion yesterday, Mr. Marche, about Mr. Caines

paying protection. Do you recall that?

A Yes.

Q But you don’t know if he was, in fact, paying protection?

A No, I don’t.

Q And if he was, you don’t know who it would have been paid to.

A No, I don’t.

[327] In re-direct, the following testimony was elicited from Marche:

2012 ABQB 521 (CanLII)

Page: 92

Q Mr. Rice asked you a question, sir, about payment of protection, and in

relation it was – your response indicated or asked – asked you whether or

not you knew if and if – if Jeff Caines paid protection and who to, if he

did. And I believe your indication was you did not. Do you recall that?

A Yes.

Q Okay. And I’m just wondering what you meant by – about knowing, what

you meant by you didn’t know.

A I didn’t hear anything specifically come from Jeff stating who and/or if he

was paying protection. I remember there was a conversation taking – taken

place. I don’t remember if it was him directly. I don’t remember where I

heard it from.

Q Okay. And do you recall providing this information in regards to this

issue, payment of protection, in your statement on October of 2007?

A Yes, I do.

Q And would it assist in refreshing your memory in regards to who that

conversation was with and what was said?

A Yes.

Q I’m going to ask you, sir, I’m going to refer you –

. . .

[328] Counsel for Alcantara objected to that line of questioning. The Court upheld the

objection.

[329] Marche recalled that between the Showgirls incident and his February 2006 statement to

Sgt. Anderson, Caines told him somebody had stolen a kilogram of cocaine from one of the

group. He could not recall Caines mentioning who took the cocaine. He refreshed his memory

from his June 2006 statement and said that while he could not specifically recall Caines speaking

about who took the cocaine. He could not recall why he believed that. He said he thought the

cocaine was returned to Caines, but did not recall why that was his understanding. He

remembered Caines saying: “They don’t know who they’re messing with.” The hearsay evidence

concerning the stolen cocaine will be considered at steps one and three of the Carter analysis.

2012 ABQB 521 (CanLII)

Page: 93

(iii) The group

[330] Marche testified that during the time frame from the Showgirls incident to his first

statement to Sgt. Anderson on February 23, 2006, he considered himself to be part of a group

comprised of Caines, McDonald, Cal (Gregoire), Geebs, himself and, later, Cardinal. There were

others, such as Jody Smith, Chad and Cliff, who came into the group and then left. He described

Felix as not being involved as much and being more like a friend who sold drugs once in a while.

Marche believed that he met McDonald in the summer of 2005 at Caines’ house. McDonald was

living with his girlfriend Letisha (the sister of Caines’ girlfriend Pam). He met Cal through

Caines at about the same time as he met McDonald. Marche met Geebs in the summer of 2005,

most likely at Caines’ house. He met Cardinal towards the fall or winter of 2005, again through

Caines.

[331] The purpose of the group was to distribute cocaine for profit. They did not share money.

They made their own money. He was in the group for one and one-half to two years, in 2005 and

2006. Marche saw Caines as being the leader of the group. It was Caines who gave directions

about picking up and paying for the kilograms of cocaine and how to deal with the extra

kilograms delivered.

[332] Marche recalled an occasion when Jody Smith was hit over the head with a bat by

someone outside of the group. He did not think there was any retaliation from members of the

group for it, but he believed phone calls were made. He said there was no specific understanding

among the individuals in the group as to what would occur if one of them was harmed.

[333] Marche said his understanding from Caines was that if one of the group was picked up by

the police and arrested, that person was not to say anything but rather was to call Jake Chadi.

Marche said that he understood Caines would pay for his legal counsel if he was stopped and had

to call Mr. Chadi. He thought there was a conversation at Caines’ house about that, but could not

remember. He said that when he was stopped by the police in Red Deer with three kilograms of

cocaine, he called Mr. Chadi and he and his girlfriend Debbie Weiss met with Mr. Chadi. Caines

came later and they had a general conversation. Mr. Chadi wanted to have another meeting with

Marche, but Marche did not attend. He said Caines told him he was going down for the hockey

game, was planning to talk to Mr Chadi anyway, and so not to worry about it. Marche testified

that he believed it was Cpl. Gibson (then Cst. Gibson) who advised him that the charges against

him had been stayed.

[334] Marche refreshed his memory by reviewing his statement of February 23, 2006 to Sgt.

Anderson in regard to this issue. He then agreed he had a conversation with Caines regarding his

charges. He said Caines already appeared to know what was going on with the charges.

[335] In cross-examination, Marche agreed that even before he began doing business with

Caines, Mr. Chadi was his lawyer of choice. Marche indicated that he did not recall specific

2012 ABQB 521 (CanLII)

Page: 94

conversations with Caines regarding Mr. Chadi’s services, nor any specific agreement he had

with Caines in relation to legal fees.

[336] Marche testified during cross-examination that his brother’s friend paid his bail when he

was arrested in November 2005 in Red Deer. He said he had an agreement with his brother’s

friend to pay him back and he got the money back when the charges were stayed. He said he

retained Mr. Chadi for the charges, but he did not think he paid Mr. Chadi. He never spoke to

Caines about compensating Mr. Chadi. When asked if he remembered assigning his bail to Mr.

Chadi, he said that he did. However, he believed the funds posted were returned to the person

who had paid his bail. He said he learned the charges were stayed when he missed phoning in to

the RCMP detachment one week and spoke to a member he knew, who advised him about the

charges being stayed.

[337] Marche’s attention was directed to his February 2006 statement to Cpl. Gibson. He

agreed that it may have been Mr. Chadi who first told him the charges had been stayed. He

agreed Caines was never present during discussions he had with Mr. Chadi about the charges, nor

was he ever present during discussions between Caines and McDonald, Cal, Cardinal or Jody

Smith regarding lawyers.

[338] In re-direct, Marche clarified that he thought he heard from Mr. Chadi about the staying

of the charges after he learned about it from the RCMP. He was referred by the Crown to his

October 2007 statement where he said he understood Caines would be paying his legal fees. He

was confident Caines said it, but did not know when. In redirect, Marche said he did not recall

having a specific conversation with Caines in regard to legal fees being paid, although that was

his understanding.

[339] In cross-examination, Marche agreed that he first discussed drug trafficking with Caines

because he was looking for a supplier. He said Caines never gave him any directions on how to

sell drugs, never asked who his customers were, never assigned him a specific area in which to

sell drugs, never gave him instructions on breaking the cocaine down into smaller units, and

never imposed restrictions on what he could do with the drugs. He said he paid Caines based on

the volume of drugs he received, no matter what he sold them for. He was always in debt to

Caines, which put Caines in a position to ask him for favours.

[340] When asked if the things Caines asked him to do were favours, Marche said: “[n]o.” He

agreed he was never compensated for these things and Caines was not in a position to force him

to do them. He agreed his actions of picking up and storing cocaine were for his benefit. He

testified that he considered himself, Geebs, Cal, Cardinal and McDonald to be members of the

group. He could not recall a specific occasion when they met as a group. He said the group of

five did not do anything as a group. He said there were no arrangements for protection among

them. They did not divide up the city between themselves for purposes of trafficking. They did

not share customer lists or pool their money. They did not operate under a name and they did not

have a set agreement on prices. None of the other members helped him make a sale. The profit he

2012 ABQB 521 (CanLII)

Page: 95

made from trafficking was his. He bought cocaine from sources other than Caines during the

time period in question, including from Cliff, Chad and others. There was no exclusivity

agreement between him and Caines. Caines sold drugs to people other than the five of them.

[341] Marche was asked about the trip he took to Calgary to replace some bad cocaine. He was

referred by Defence counsel to his October 2007 statement in which he said he had been willing

to go to Calgary at the time because the bad cocaine was bad for business and going down

himself would ensure it was replaced quickly. He said he met the people who brought cocaine

into Fort McMurray to ensure he obtained the cocaine quickly. He stored it to ensure he had a

ready supply.

[342] Defence counsel asked him about a November 4, 2005 call where Caines accused him of

buying from the enemy. Marche initially testified that the enemy he was referring to was Cliff,

but when referred to his second police statement, he agreed he was not sure if it was Cliff or

Sekulich. He said he was buying from them and paying them in a prompt fashion, even though he

had an existing debt to Caines. He agreed the reason he did business with Caines was because

Caines’ drugs were of better quality and a lower price. He agreed it was not based on a formal

arrangement, but was motivated by convenience.

[343] Marche was again referred to his October 2007 statement, in which he said he was more

of Caines’ go-to-guy to get things done. At the preliminary inquiry, he said it seemed like Caines

used him a lot. He agreed the things he did for Caines were favours and not responsibilities.

[344] In cross-examination, Marche agreed the term “inner circle” was not one he used in his

discussions with McDonald, Cal, Geebs and Cardinal in the period 2004 to 2006. He agreed that

Sgt. Anderson used that term when Marche gave his February 23, 2006 statement.

[345] In re-direct, Marche said “no” when asked whether, after approaching Caines and being

supplied by him, he did in fact enter a group as far as he was concerned. He said he referred to

himself, McDonald, Geebs and Cal as a group in direct because they were all buying drugs from

Caines.

[346] Marche testified that, when he received instructions from Caines, he carried them out as a

favour. He was not forced to do anything. He believed that if he had not followed the

instructions, he still would have been supplied by Caines.

(iv) Marche obtaining drugs

[347] Marche was asked how the cocaine was brought into Fort McMurray. He confirmed that

girls would travel to Fort McMurray by bus and bring one to five kilograms up in backpacks to

Caines, Cal, Geebs or himself. There were also times when he would meet someone at the edge

of Fort McMurray who was delivering the cocaine. He said he was sent down to Calgary for

cocaine on at least one occasion. He also testified the “Butler” would drive down himself and

2012 ABQB 521 (CanLII)

Page: 96

bring the drugs back to Fort McMurray. Other guys in the group also would go down to get the

drugs. He said that Hoskins was one of the guys who transported drugs from Calgary.

[348] Marche testified about a number of ways in which he obtained the drugs, including:

From Caines or Flight at Caines’ home

[349] In between the Showgirls incident and his first statement on February 23, 2006, Marche

continued to purchase and sell drugs. Caines was his supplier. Sometimes, Marche would get the

drugs directly from Caines at his house. He testified that this did not occur as often as before,

since Caines was not handling the drugs himself very much by that point in time.

[350] Marche testified that occasionally he went over to Caines’ house when Caines was not

there. Sometimes, Caines’ girlfriend Pam would be there. At other times, it was Flight, someone

they called the “Butler,” who was at Caines’ house and who would give him the drugs. A couple

of times there were people there he did not know.

[351] Marche said he got drugs from Flight the “Butler” on more than one occasion, starting

just before the McDonald seizure and continuing for a month and a half to two months. This was

before Flight was arrested. Marche recalled one occasion specifically when he received a

message telling him to meet at Caines’ place. He waited there for about ten minutes and when

Flight drove up, he opened the garage for him. Flight drove in, opened the trunk of his vehicle

and gave Marche one of the four or five kilograms of cocaine he had in there. Marche said he

would have paid Caines for that kilogram at a later date. Caines was not present during this

incident. Marche had been given the garage door code by Caines so that he could access the

house to put money in a drawer for Caines if Caines was not there.

[352] Marche said that the cocaine generally was stamped into a brick, covered in rubber, paper,

and saran wrap, sometimes with yellow gel in between the layers. There would be tape on top of

that, then rubber again, sometimes transmission grease on top, and finally it would be packaged

in vacuum sealed bags.

From girls who brought it up on a bus, from

someone he met at the edge of the city or from

someone he met at the Sawridge Hotel

[353] Marche testified that, on occasion, he met someone at the edge of Fort McMurray to pick

up the cocaine, although it might also be brought in by car straight to Caines’ residence. One of

the five in the group who generally dealt with the cocaine (himself, Cardinal, McDonald, Geebs

and Cal) would pick up the drugs and distribute it to the rest of the group. This occurred once a

week or once every two weeks. Marche said that Caines would instruct one of them, by

Blackberry or by cell phone, to pick up the drugs. Caines would say something to the effect of:

2012 ABQB 521 (CanLII)

Page: 97

“... the ‘girls’ are on their way. I need you to go meet them.” He would give an hour or up to a

day’s notice.

[354] Marche testified that when it was his turn, he would wait until he got a second message

saying where to pick up the drugs. He would then go to the location, meet whoever it was, pick

up a backpack (which he referred to as a book bag) filled with three to eight kilograms of

cocaine, put it into his car, drive it to his place and wait anywhere from a day to a week for

further instructions from Caines. Caines would tell him someone would come by to grab one of

the kilograms or he might tell him to drop off a kilogram or two with one of the other four in the

group. He said the understanding was that he would store it until it was needed. That happened

once a month or once every month and a half.

[355] Marche said he and Caines communicated by Blackberries provided by Caines with

Caines’ number programmed into it, and pay-as-you-go cell phones used specifically for texts,

which he obtained from Caines. Caines told them not to speak over the Blackberries.

[356] Marche testified that there were three or four times in the space of about a month when

Caines would call or send him a message saying somebody would be up on the bus and to be

ready. He would then get a text saying they were there or had showed up at his place. He recalled

one occasion when a girl showed up at his house, came to the door and passed him a backpack

with multiple kilograms of cocaine. Marche indicated the girls generally brought up two to five

kilograms of cocaine. He would store it for Caines and separate some of it for himself into

packages. Typically, he would keep one or two kilograms. He did not pay for it at the time but

was responsible for paying Caines afterwards. Marche said Caines decided how many kilograms

went to the other guys.

[357] Marche testified that on three or four occasions he met a guy on the edge of Fort

McMurray to pick up the cocaine. He clarified that this occurred in the period after the Showgirls

incident, possibly around the time of the McDonald seizure, although he was not sure, but before

the Cardinal seizure. He specifically recalled two occasions. He received a Blackberry message

from Caines telling him to be ready to go. An hour or two later, he got another message from

Caines saying to meet the guy by the Sawridge Hotel. He drove over there and, after messaging

back and forth with Caines by Blackberry, found out what vehicle the guy was driving. The guy

handed a backpack to him and left. Names were not used. Marche said there were two to five

kilograms of cocaine in the bag. He kept some of it to sell, paid Caines for that amount, and gave

some to the other guys in the group.

[358] He recalled a second occasion a couple of weeks later when the same thing happened.

When he got to the Sawridge Hotel parking lot, a security guard came out. Marche sent a

message to Caines and Caines told him to meet the guy at the gas station on Beacon Hill in Fort

McMurray, instead. The guy was not at the station when Marche got there, so Caines told Marche

to just meet him on the highway out of town, which he did. The guy got the backpack from the

trunk of his vehicle. Marche testified that he did not think he kept all of the cocaine that he

2012 ABQB 521 (CanLII)

Page: 98

received by that method. He testified that he was never responsible for paying for the cocaine that

went to the other guys.

[359] Marche recalled meeting a guy at the Sawridge Hotel one time, giving him a backpack

full of cash he had gotten from Caines, probably around $50,000 to $100,00 and, in return,

getting a backpack of cocaine, between two and five kilograms. He initially said the meeting was

in the parking lot and then testified it was in the guy’s room and that he brought the bag of cash

and then put the cocaine in the bag. The money was wrapped into a big bundle with Saran wrap

around it. He said that, on Caines’ instructions, he collected some money from drug dealers

operating under him, and added it to the bundle, as he owed Caines money for previous

kilograms of cocaine.

From one of the other members in the group

[360] Marche testified that during the time period when the cocaine was being couriered up to

Fort McMurray by girls on a bus, there were occasions when he went and picked up cocaine from

one of the other guys in the group after being advised by Caines they had it. Caines would decide

how much he should pick up.

[361] He said that once every week or every two weeks, if he was not storing the drugs himself,

one of the other four would tell him to come pick up a kilogram. Marche said that the person who

was selected to obtain, store and distribute the cocaine depended on who was available. Marche

would pay Caines for the cocaine he was keeping for himself to sell, usually within a week. He

paid Caines for the cocaine he obtained from the others or he would pay one of the others at

Caines’ instructions. He testified that Caines would just call him and say he needed “love,”

which meant to bring him as much money as he could.

[362] Marche recalled obtaining cocaine from Hoskins two or three times, although he could

only remember one occasion specifically. He said this was before the McDonald seizure and

before the search of Cardinal’s house, but after the Showgirls incident. He said Hoskins came up

to Fort McMurray on the bus, he took a cab to Marche’s place and brought a suitcase with him

that had more than a couple and no more than five kilograms of cocaine in it. Hoskins passed

him the suitcase. Marche waited for instructions on what to do with the cocaine. He kept some of

it and paid Caines for it. He did not recall what he did with the remainder, but said the standard

practice was to give it to some of the guys from the group on Caines’ instructions.

[363] Marche testified about an occasion when he was instructed by Caines to go to

McDonald’s house to pick up his cocaine. This incident is detailed below.

[364] Marche recalled that after the McDonald seizure (on September 15, 2005), before the

search of Cardinal’s residence, he received a call early in the morning from Cal (Gregoire) saying

he was coming up on the bus. Cal showed up early in the morning at his house and dropped off a

suitcase with around ten kilograms of cocaine. He believed he kept two or three kilograms of it

2012 ABQB 521 (CanLII)

Page: 99

and the remainder would have been divvied up among the other individuals in the group on

Caines’ instructions, as that was the common practice. He paid Caines for his share of the

cocaine, but not for the amounts that went to others in the group.

By personally picking up the drugs in Calgary

[365] Marche testified there were two or three times he was asked by Caines to go to Calgary to

pick up cocaine, as a result of which he did so. He picked up one to three kilograms at most

during those trips. He said that, to his knowledge, other members of the group also were asked to

do the same thing.

[366] On one occasion, a couple of weeks before he was arrested in Red Deer, Caines asked

him to take what he had left of a bad kilogram of cocaine down to Calgary and get a replacement

for it. Marche explained that users had told him it tasted like hair and he passed this information

on to Caines. When asked what he expected Caines to do about it, he said he did not really

expect anything. Marche testified he took the cocaine out of the smaller packages and wrapped it

up in a bigger package, he sealed it up, put it in a backpack, put the pack in his vehicle and drove

to Calgary. He thought Weiss and possibly Hoskins went with him.

[367] Marche was told by Caines to wait in Calgary for his phone call. Caines called back about

an hour or two later and gave him a phone number to call. Marche spoke with a male first,

someone neither he nor Weiss knew. The male told him someone would be meeting him or

calling him. He got a call about an hour later from a girl telling him to meet her at the Boston

Pizza on 17 Avenue in Calgary. He went there and waited for about 15 minutes. Finally, he got

another call asking what he was driving. He said he was in his white Ford F150. A girl opened

the door, Marche passed her the bad kilogram of cocaine and she passed him another bag with a

kilogram of cocaine in it. He said he probably took a sample out of the cocaine and tested it to

make sure it was okay.

[368] Marche testified that it was standard practice for him to call Caines to tell him everything

was OK. Marche testified that he spent the night in Red Deer and then drove home the next day.

In cross-examination he agreed that he actually spent a week in Red Deer.

[369] Marche thought he was instructed by Caines that time to split the cocaine into three equal

packages, to keep one-third for himself and to give the rest to someone else in the group. He said

he did not pay for the bad kilogram of cocaine but did pay Caines for the replacement one-third

kilogram.

[370] Marche remembered going to Calgary on another occasion, before his arrest and perhaps

before the last incident he spoke of, to pick up a kilogram of cocaine at Caines’ instruction. He

went down with Weiss. It may have been on that occasion that Hoskins went with them. They

went to Hoskins’ place in Calgary. He did not recall bringing anything with them. He refreshed

his memory from a statement he gave to the police in the fall of 2007 and then recalled bringing

2012 ABQB 521 (CanLII)

Page: 100

approximately $80,000 in cash that Hoskins had picked up at Caines’ place. He said he had been

contacted by Caines, who asked him to pick up Hoskins and bring him to Caines’ house and then

bring him to Calgary since Hoskins had missed his bus. He picked Hoskins up at the Holiday Inn

in downtown Fort McMurray. Marche said he believed he put the $80,000 through a money

counter himself at Caines’ home. About $20,000 to $25,000 of the money was from him, money

he had rounded up from the dealers working for him. He brought it to Caines’ home when Caines

told him to bring as much love as possible. He assumed the rest of the money was from other

members of the group. He said there was an elastic band wrapped around bundles of $2,000 and

then bundles of $10,000 would be wrapped in another elastic. The money was put in a backpack.

Marche was told he should wait in Calgary for instructions from Caines on where to pick up the

cocaine. He waited overnight at Hoskins’ place. The next day, he was told he would not be

receiving anything and so he drove back to Fort McMurray.

[371] Marche also spoke of another occasion (November 23 and 24, 2005) when he and Weiss

went to Calgary to obtain cocaine at Caines’ request. That incident is detailed below.

By purchasing cocaine from others

[372] Marche testified that there were times when he did not purchase from Caines but rather

purchased cocaine from other people.

(v) Payment for the drugs

[373] Marche testified that he paid from $32,000 to $37,000 for a kilogram of cocaine between

the time of the Showgirls incident and his February 2006 statement to Sgt. Anderson. He paid up

to $42,000 for a kilogram outside of that time frame. He could not recall what the largest amount

was that he had ever paid Caines, but knew he had provided that type of information in one of his

statements to Sgt. Anderson. He refreshed his memory from the October 2007 statement, in

which he had said $200,000 was the largest amount. He recalled making the statement but did

not recall paying that amount.

[374] In terms of his dealings with Flight, Marche testified that there were a couple of times

when he met Flight at Caines’ house and handed Flight cash to be given to Caines as payment of

what Marche owed for cocaine. This would have been at Caines’ instruction or in response to a

call from Flight saying they needed as much money as he could get. He said this occurred

approximately three or four times.

[375] He said that the amount of money he owed Caines was written on a sheet of paper by

Flight or Caines. Marche referred to it as the “tick sheet.” It contained information about who in

the group owed what. He testified that it would have been between one and two kilograms he

was purchasing at the time. He paid Caines for the drugs, sometimes directly and sometimes by

leaving the payment in a drawer in the house.

2012 ABQB 521 (CanLII)

Page: 101

[376] Marche said the payments he made to Caines varied from $3,000 to $10,000, $15,000, or

$30,000. The money was paid towards what he owed for cocaine. He obtained the money from

drug dealers who worked for him. He was instructed by Caines to bundle the cash in bundles of

$2,000 and then bundle five of those and wrap the $10,000 bundle with an elastic. Generally, the

denominations were $20 and up.

(vi) September 15, 2005 - McDonald seizure

[377] Marche acknowledged that he provided information to the police (Sgt. Anderson and Cpl.

Gibson) as a result of which the police conducted a search of McDonald’s residence. He

conceded he was compensated $10,000 by the police for that information.

[378] Marche testified that he was instructed by Caines to go to McDonald’s house to pick up

his cocaine. He went to the house and gave McDonald $14,000, he believed, so McDonald in

turn could give it to Caines, who was not in town at the time. It was money Marche owed Caines

for cocaine he’d previously been supplied with by Caines. McDonald in turn gave him a

kilogram of cocaine, which Marche stuffed in his pants and later sold to his dealers.

[379] When he was at McDonald’s house, Marche saw what appeared to be two or three

kilograms of cocaine in brick form in vacuum sealed bags, and some other bundles of cash in

McDonald’s cupboard. He left the house, called Caines and told him he had left the money at

McDonald’s, contacted the police, gave them information about the cocaine in the house and, as

a result, the residence was searched.

[380] Marche refreshed his memory from the statement he gave in the fall of 2007 and said the

kilogram of cocaine that he obtained from McDonald also came from the cupboard. McDonald

told him to pick one.

[381] Marche said he was later told by Caines he was still responsible for the $14,000. Marche

said that when he left the group in 2006, he owed Caines money. Caines told him he owed

$80,000, but Marche believed his debt was only $20,000.

(vii) October 27, 2005 - Flight’s vehicle stop

[382] Marche said that at the time Flight was stopped by the police and four kilograms of

cocaine were found in his vehicle, the members of his group were expecting a shipment of

cocaine and did not receive it. It took a week to almost two weeks before they got more cocaine.

(viii) November 10, 2005 - Caines’ vehicle stop

[383] Marche recognized the name Greg Kjelshus as a friend of Caines who lived in Sylvan

Lake. Marche said he recalled being told by Caines of an incident where Caines was pulled over

2012 ABQB 521 (CanLII)

Page: 102

by the police in Red Deer and the police seized $100,000 from him. Caines told him the money

came from the sale of a house by “Greg.”

[384] Marche refreshed his memory from his February 2006 statement to Sgt. Anderson. He

said he believed the money was drug money from Fort McMurray. There was a discussion of

“Greg” owing Caines money and about the money coming from the sale of a home.

(ix) November 24, 2005 - Marche and Weiss’ Red Deer

vehicle stop

[385] Marche discussed the time when he and Weiss were stopped by the police in Red Deer.

He said he got a call in the morning from Caines asking him to meet him by the Mac’s store in a

particular area of Fort McMurray. He went there. Caines asked him if he could drive down to

Calgary to pick up some “units,” meaning kilograms of cocaine. He was to go to Caines’ house

in Calgary, which would be unlocked. Marche did not really want to go but said that Caines

implied he had to do so. Marche said that he needed sleep, so Caines said it was alright to leave

the next morning. Before he left Fort McMurray, he obtained a bag of cash from Caines. It was

bundled and in a plastic see-through bag. At some point, he took a photograph of the money with

a digital camera.

[386] Marche left Fort McMurray at about 3 a.m. on November 23, 2005 with Weiss. He was

driving his white Ford F150. When they got to Caines’ house in Calgary, no one was there. They

walked in, sat on the couch, and waited for a phone call. Marche spoke on the phone with Caines,

who told him to hang tight and wait for a phone call or for someone to show up.

[387] After a couple of hours, a girl arrived and went directly upstairs into the bedrooms and

riffled around looking for something. Marche asked her if the bag of cash he had was what she

was looking for. She said “yes,” grabbed the bag and when Marche asked her what was going on,

she said she would ask Ricco to stop by and talk to him. Marche did not remember if Ricco came

to the house or not.

[388] Marche then got a call from Caines, who asked him what was going on. Marche and

Weiss got into Marche’s truck, drove through Calgary to McLeod Trail, stopped at a 7-Eleven for

some food and, at about 4:00 p.m. went to the Holiday Inn on McLeod Trail, where they got a

room and fell asleep. Marche got another call from Caines asking what was going on. When

Marche said nobody had called him, Caines said he would phone back.

[389] Someone called Marche and told him he was on his way to the hotel. Marche gave him

the room number. The person arrived at about 2:00 to 3:00 a.m. Marche was not sure who it was,

but thought it was Ricco. The guy knocked on the door, entered the room, they had some general

conversation, the guy then opened up a small cooler-like bag and took out three kilograms of

cocaine and put it on the floor. The guy left and Marche cut open small flaps in the cocaine to

take samples, less than a quarter gram from each. Marche testified that he was doing cocaine on a

2012 ABQB 521 (CanLII)

Page: 103

daily basis by then and it was a new type of cocaine he wanted to try. He fell back asleep and at

about 8:00 or 9:00 a.m. received a call from Caines, who asked, “two?” In response, Marche

said, “no, three.”

[390] Marche went to his vehicle in the parking lot, waited for Weiss to check out, and then

they drove away. At some point in time, Marche opened a secret compartment installed in the

passenger air bag of the truck and asked Weiss to put the cocaine in there. They drove up and

down McLeod Trail looking for a spy shop. They found it and he bought fake video cameras.

They left Calgary on Hwy. 2 heading towards Red Deer. They made arrangements to meet

Weiss’ father around a car wash just off of the highway.

[391] As they were pulling off the highway, Weiss noticed a police car coming up behind them.

They were pulled over. The officer came up to the truck and told Marche a vehicle matching the

description of his was involved in a case of stolen tools. Marche was put in the back of the

cruiser. While he was there, he deleted phone numbers and messages from his cell phone,

although not from Weiss’. He did not believe he was successful in deleting all phone numbers

from his phone book. He said he only knew one person who went by the name of Geebs.

[392] A search was conducted of his vehicle. The officer told Weiss to get out of the truck. He

then searched her purse. After finding a tissue with cocaine in it, he placed her under arrest.

Marche was placed under arrest, his pocket was searched and the police found a canister with

cocaine in it. The police eventually found the three kilograms of cocaine.

(x) December 1, 2005 - Eymundson Drive seizure

[393] Marche was asked if he had any knowledge of a seizure of cocaine from [...] Eymundson

Drive in Fort McMurray. He said about a week after the seizure, he heard about it from Caines,

when they were inside Caines’ house. Caines said, “I lost another five buddy.” Marche took that

to mean five kilograms of cocaine. Caines also said something to the effect of, “I don’t have to

pay for it, I never took possession of it” or “I never received them.” Marche said Caines

mentioned that a painter stumbled across the cocaine and reported it. Marche said Caines

appeared to be a little pissed off or frustrated.

[394] Marche testified that in his February 23, 2006 statement to the police, he provided

information concerning this conversation. He refreshed his memory from the statement.

Marche’s understanding was that Caines eventually did have to pay for the cocaine. He said in

and around that time, he did not receive any cocaine for approximately two weeks, which was

unusual.

(xi) January 17, 2006 - Cardinal search

[395] Marche recalled giving information to the police in relation to Cardinal (aka Larry). He

thought that was in January or February 2006. He said that as a result of that information,

2012 ABQB 521 (CanLII)

Page: 104

Cardinal’s residence was searched. Marche testified that he received about $2,500 from the

police for the information.

[396] He said he received a phone call from Caines telling him to go see “Jeremy,” who had his

“girls,” which he understood to mean kilograms of cocaine. He drove to Cardinal’s place, where

Cardinal was cooking crack cocaine. Cardinal handed him a kilogram and Marche spotted

another one and a half to two and a half bricks of cocaine on Cardinal’s kitchen counter. Cardinal

was cooking the crack from the broken brick. Marche could not recall if he stuffed the kilogram

of cocaine in his pants or put it inside a computer tower. He went home and contacted the RCMP

or they might have contacted him. He said that he may have contacted Caines to let him know he

had received the cocaine. He testified that he paid Caines for the cocaine.

(xii) Drug use and criminal record

[397] Marche testified that he started snorting powdered cocaine probably in January 2005 and

continued until July 2006. He used about a gram a day. He also used OxyContin. He’d been

taking Percocet since 2004 for a shoulder injury and then no longer got a prescription for it from

the doctor and started purchasing the drugs off the street. He stopped taking it in March or April

of 2006. When he quit, he would have been taking four to eight 80 mg pills a day. When he first

started OxyContin, he took four 10 mg. pills a day and the amount gradually increased.

[398] In cross-examination, Marche agreed his drug use began with Percocet prescribed by a

doctor. He had a three month prescription. He used between five and ten 5 mg. pills a day. He

then bought Percocet off the street and eventually OxyContin. OxyContin started out as five to

ten 10 mg pills a day and ended up as eight 80 mg. pills a day. He was using cocaine regularly as

well. In addition, he was using methadone. He agreed he was continually under the influence of

narcotics during his dealings with Caines.

[399] Marche acknowledged having a criminal record.

(b) Defence concerns with Marche’s evidence

[400] During the Crown’s application to enter Marche’s preliminary inquiry evidence, the

Accused pointed to a number of factors which they submitted affect the reliability of Marche’s

evidence and diminish its probative value, including the following:

(i) He was a self-admitted high level cocaine trafficker with a number of

people working under him and selling multiple kilograms of cocaine every

week and, therefore, was a witness of unsavoury character.

(ii) He was addicted to drugs throughout the relevant time frame, although this

may not have been apparent.

2012 ABQB 521 (CanLII)

Page: 105

(iii) He was taking prescription drugs at the time of his death (methadone,

fentanol, apozopiclone, mylanclonazepam, mylanzopiclone, and valium),

which leads to the inference he may have been taking similar substances

when he testified at the preliminary inquiry.

(iv) He co-operated with the police and testified at the preliminary inquiry out

of self-interest. There was a commercial incentive in that the arrest of

others would naturally drive the price of his product up. He was paid for

information in the past, and testifying was a condition of receiving support

in the witness protection program. He was in debt to Caines. Also, the

charges against Marche and Weiss of possessing three kilograms of

cocaine in November 2005 and the later charges against Weiss were not

re-instituted.

(v) Some interactions with Cpl. Bannerholt and Cpl. Gibson were not audio or

video-recorded. As a result, it is impossible to say what information or

inducements may have been provided to Marche.

(vi) Marche’s memory while testifying at the preliminary inquiry was not

good. He frequently refreshed his memory and was unable to recall crucial

details.

(v) Marche indicated one reason for his co-operation was revenge against drug

traffickers, and this could provide a motive to lie to precipitate

consequences against them.

[401] The Accused submitted that Marche’s evidence was vague and equivocal respecting the

“Showgirls incident,” in particular his suggestion that steps were taken to bring “troublemakers”

into line. They contended the evidence regarding exclusivity, bikers, the HAMC and a protection

agreement was equally tenuous and that Marche, in effect, resiled from the assertions he made in

direct examination.

[402] At para 110 of the Marche Decision, I held that:

As in Hawkins, it does not follow that Marche's prior testimony was devoid of

probative value as a result of the internal contradictions in his testimony. The

simple fact of recantation does not provide a basis for the exclusion of a witness's

testimony, since the trier of fact may reasonably conclude on the basis of all the

evidence before it that the witness's original story ought to be preferred over the

witness's subsequent recantation, or vice versa. In any event, in reviewing the

portion of Marche's preliminary inquiry evidence set out above, it appears the only

points on which he directly contradicted himself are that Caines mentioned the

2012 ABQB 521 (CanLII)

Page: 106

Hells Angels by name and that it was Caines who told him he was paying

protection money and to whom.

[403] At para 146, I held that while Marche’s evidence that is internally inconsistent (evidence

concerning Caines’ mention of the HAMC and it being Caines who told Marche about the

protection agreement and with whom) must be approached with great caution, and the Potvin and

Vetrovec warnings applied to the evidence in its entirety, its ultimate reliability and the weight to

be ascribed to that evidence would remain to be determined after measuring and weighing it with

the balance of the admissible evidence in this trial, and considering other evidentiary arguments.

(i) September 15, 2005 - MacDonald seizure

[404] Marche testified that after picking up a kilogram of cocaine from McDonald, as directed

to do by Caines, he provided information to the police that led to their search of McDonald’s

residence. This aspect of his testimony is corroborated by the evidence of Cpl. Gibson, who

swore the Information to Obtain the search warrant for McDonald’s residence. He said the

Information to Obtain was based in part on information he obtained from three different sources,

including information provided on September 15, 2005 by Marche. Marche was paid $10,000 in

return for the information.

[405] The seizures made from the garage, the residence and McDonald’s vehicle as a result of

that search, including the significant amount of cocaine, the typical cocaine packaging materials,

the amount of cash, the digital scale, the multiple cell phones, the score sheets and the loaded

handgun are consistent with McDonald being a high level cocaine trafficker and corroborate

Marche’s evidence in that regard.

[406] Further corroboration of Marche’s evidence that McDonald was one of Caines’

distributors is found in the calls at Tabs 67 and 68 on September 17 and 19, 2005 respectively. In

the first call, Alcantara asked Caines: “What happened to Macko?” Caines answered: “Big time...

I had - they kicked his door in.” Alcantara said: “Oh really? And, uh, what happened?” Caines

answered: “He had three or four of ‘em.” Alcantara started to ask: “You still...” Caines said: “Not

good though.” In the final call, Alcantara asked: “Are you gonna, are you on schedule still?”

Caines answered: “Fuck no. Not at all dude man. That’s why I fuckin’... I wish one of you,

somebody could come and talk to me.” Caines asked if Alcantara had watched television that

day. When Alcantara said he had not, Caines said: “Turn on your radio.”

[407] As Cpl. Gibson testified, the RCMP made a media release regarding the McDonald

seizure that was played on the radio. An Edmonton Journal article about the seizure dated

September 20, 2005 was entered into evidence. The article suggested there could be a link to a

drug gang because of certain clothing that was seized.

2012 ABQB 521 (CanLII)

Page: 107

[408] I am of the view that these conversations were in furtherance of the alleged on-going

conspiracy in that alleged co-conspirators were discussing the reason why Caines was behind

schedule. When considered in the context of other intercepted communications, I infer that the

schedule related to payments to be made by Caines to Alcantara. The calls corroborate Marche’s

evidence in that they establish Caines’ business was affected by the McDonald seizure.

(ii) Stolen cocaine

[409] Marche testified that Caines told him a kilogram of cocaine had been stolen between the

Showgirls incident and his February 2006 statement to the police. I am of the view this statement

was in furtherance of the conspiracy. Corroboration can be found in the intercepted

communications at Tabs 371 to 373, 378 to 380, 396 and 399.

[410] In the call at Tab 371, made on December 8, 2005, Caines, who was at or near Calgary,

told Sukys, a prospect or member of the Nomads chapter of the HAMC and believed to be in Fort

McMurray at the time, that somebody had taken something from him that was not his - it

belonged to someone else, who was “pissed” and Caines owed for it. Sukys said he would find

out about it. Caines claimed: “... it’s that buddy there.” Caines asked Sukys to fix it for him and

to call him back.

[411] In the interceptions at Tabs 372 and 373, made later on December 8, 2005, Caines, who

was at or near Calgary, asked Knapczyk, a member of the Edmonton chapter of the HAMC, who

was at or near Edmonton, if he remembered: “...that guy that fuckin’ outside the club that night?”

Caines explained: “...[that guy] went to one of my fuckin’ and took something that wasn’t his....

one of my things... up there.”

[412] In the intercepted communications at Tabs 378 and 379, made on December 9, 2005,

Caines asked Knapczyk if he had figured anything out. In the call later that day at Tab 380,

Caines asked Knapczyk: “Is it done or what?”

[413] As is apparent in the communications at Tabs 396 and 399, Caines was of the view that it

was LePoidvin, a prospect with the Nomad chapter of the HAMC, who took the drugs.

[414] This series of communications appears to relate to the incident described by Marche. In

my view, the conversations were in furtherance of the alleged conspiracy. Clearly, Caines was

upset that someone had wrongly taken something from one of his “guys,” something for which

Caines would still owe someone else. There was no mention made of what the “something” was

which was referred to in these calls. However, I infer that the “something” in issue was cocaine.

There is much other evidence that Caines was involved in trafficking in cocaine in Fort

McMurray. The “something” was significant enough that Caines complained about the theft to a

prospect with the Nomads and asked him to try and fix it. He also complained about it to

Knapczyk, a member of the Edmonton chapter of the HAMC, who in turn arranged to meet with

a possible member of the Nomads in an effort to resolve the matter.

2012 ABQB 521 (CanLII)

Page: 108

(iii) Payment to Caines

[415] Marche testified that Caines would ask for payment for cocaine he had supplied to

Marche by phoning him and asking him for some “love.”

[416] The intercepted communications at Tab 178, 282 and 289, which in my view were made

in furtherance of the alleged conspiracy as Caines was attempting to collect drug proceeds,

corroborate Marche’s evidence. In each call, Caines asked Marche for “love,” which I accept

meant money or drug proceeds.

(iv) Payment given to Flight

[417] Marche testified that at times he made his payment to Caines for the cocaine through

Flight, at Caines’ home.

[418] The intercepted communications at Tab 92, Tab 94, Tab 95 and Tab 96, made in

furtherance of the alleged conspiracy, and related surveillance, show that Flight was gathering

drug proceeds for Caines on October 19, 2005. In the call at Tab 92, Flight asked Penton: “You

got a little bit of love for me for tomorrow.” He said: “...buddy wants X number, people. So, I,

I’m trying to get enough people. What he wants together, now. So, I get a little off everybody and

I’d be happy...just whatever you can get.” Flight indicated he needed it by Tuesday. Penton

remarked that he would be ready for “another one” by then. Flight said that “...soon as you do.”

In the call at Tab 94, Flight asked: “I didn’t know if you had any love for me, or not?” The

unidentified male responded: “...I got a couple bucks.” Flight said that everyone counts. In the

call at Tab 95, Flight told an unidentified male: “I’d like to, I’d like to have some love, a little

bit... You got a little bit?” The unidentified male asked if Flight was staying the night. Flight said

that: “...he wanted me to come on back with it tonight. I ain’t goin’ down there. I’m goin’ as far

as half ways and then I’m gonna have a nap and then I’ll go.” In the call at Tab 96, Flight asked

Matt: “...if you got three, that would be good... Cause he, he needs at least three more, what I

got.” Matt indicated: “...I got thirty five.” Flight instructed Matt to leave the thirty-five, which I

take to mean $3,500.00, “on the table.”

[419] Constable Chris Bannerholt assisted with surveillance of Caines’ residence in Fort

McMurray on October 19, 2005. Starting at 9:45 pm, he observed several vehicles come and go.

A woman arrived in a maroon truck, a male left in a silver and grey truck that had been parked in

the driveway, a two door Sunfire arrived and departed, a blue Ford Cutlass registered to Flight

arrived, a tan Chevrolet truck arrived and departed, and a black Jeep Cherokee arrived, departed,

and returned and departed again. Only the blue Cutlass remained when surveillance terminated at

11.59 p.m. I infer that at 11:51 p.m., when Flight told Matt to leave the thirty-five on the table, he

meant the table in Caines’ Fort McMurray home. Again, this is suggestive that he was collecting

the money for Caines or together with Caines and confirms Marche’s evidence that he would

sometimes leave money for Caines with Flight at Caines’ home.

2012 ABQB 521 (CanLII)

Page: 109

[420] The calls at Tabs 97 to 99, made in furtherance of the conspiracy from 1:23 a.m. to 9:22

a.m. on October 20, 2005, were then intercepted. In the call at Tab 97, Matt told Flight that he

put it upstairs on the table in the fruit bowl. Flight, who was at or near Fort McMurray, called

Matt at 5:08 a.m. (Tab 98) and left a message saying: “I don’t see nothing around here and I’m

leaving to go now. I’ll tell JC that you never turned up with it. Bye.” In the call at Tab 99, Flight,

who was believed to be at his residence in Edmonton, spoke with Caines Sr. and asked him to:

“... run up and, uh count that money that’s on the table ‘cause it’s wrong. And I just wanted you

to count it with me with, without...”

[421] Flight intended to tell JC, who I infer is Caines, that Matt had not brought the money,

again suggesting that the money was being collected for Caines. It is apparent from the second

call that Flight brought the money which he did collect to Edmonton with him.

[422] On October 20, 2005, Cpl. Lucky Ho (then Constable) was involved in surveillance at

Flight’s residence in Edmonton commencing at 9:15 a.m. He observed Flight arrive at that

location driving his blue Cutlass Oldsmobile. Flight took a large black suitcase from the trunk

and carried it into the apartment. Caines Sr. arrived at the apartment at 9:25 a.m. in a silver

Honda CRV and entered the building by the same door. At 9:45 a.m., both Flight and Caines Sr.

came out of the building and went to Caines Sr.’ Honda, while conversing. They got into Caines

Sr.’s vehicle and left the area.

[423] On October 20, 2005, at 11:36 a.m., Cpl. Ho observed Flight leave his apartment wearing

a ball cap. Flight got into the Oldsmobile, drove out of the residence lot, went south of Edmonton

on Highway 2, and at 1:26 p.m. passed by Red Deer. The Calgary police took over surveillance at

2:11 p.m.

[424] Intercepted communications involving Caines at Tabs 101 and 105 indicate that he was at

or near Calgary between 1:30 and 2:41 p.m. on October 20, 2005.

[425] Flight was seen arriving at Caines’ Calgary residence at 2:46 p.m. He entered carrying

something close to his chest. Shortly after he entered the home, a black Hummer registered to

Ricco King’s father arrived and parked on the street. A man believed to be Ricco King entered

the residence at 2:56 p.m. Flight left the house empty-handed at 3:20 p.m.

[426] In a call at Tab 108, made at 4:32 p.m. on October 20, 2005, Flight, who was believed to

be travelling north of Airdrie, Alberta, talked with Caines Sr. Flight complained about all of the

travel he was doing. He then told Caines Sr.: “I said I can’t be at this boy... I’ll get a new job...

And then... I give him the twenty four thou - dollars. He said that’s four thousand dollars for me

to spend and twenty thousand dollars for me to watch.” This was in furtherance of the conspiracy

as Flight was making plans to settle accounts.

2012 ABQB 521 (CanLII)

Page: 110

[427] At 4:40 p.m., Cst. Rajman observed Flight’s vehicle travelling north on Highway 2 at the

Olds turnoff.

[428] In my view, this surveillance and the intercepted communications at Tabs 105, 106 and

108 establish that Flight brought the money to Caines’ Calgary residence and left it there, which

again supports Marche’s evidence that he sometimes made payment to Caines through Flight.

(v) Caines’ distributors expecting cocaine but they had

to wait for more than a week after Flight seizure

[429] Marche said that the distributors in his group were expecting a shipment of cocaine about

the time of Flight’s vehicle stop but it did not materialize and they had to wait about two weeks

for a supply of cocaine. He also testified that Flight acted as a courier of cocaine for Caines.

[430] I agree with the Crown that the calls at Tabs 134 and 135, made between 6:41 and 6:43

p.m. on October 25, 2005, suggest that Caines was expecting to be in a position to supply cocaine

by October 27, 2005. They were made in furtherance of the conspiracy as “Duckie,” a distributor,

was looking for “work,” to be hooked up; that is, to be supplied with cocaine by Caines for

resale.

[431] On October 25, 2005, Cpl. Gibson conducted surveillance of Flight. He testified that at

2:55 p.m., Flight was observed entering Fort McMurray driving a blue Cutlass Oldsmobile. At

3:18 p.m., a lone male in a white Ford F150 truck, the same truck found at Caines’ Calgary

residence when it was searched, arrived at Caines’ Fort McMurray residence. At 3:42 p.m., Flight

was seen entering the driveway of Caines’ residence. The truck left at 3:56 p.m., returned at 4:00

p.m. and at 4:30 p.m. the male went to the truck and retrieved a dark backpack and proceeded to

the house. At 5:47 p.m., two vehicles were observed in the driveway: the white truck, and a red

truck registered to Craig Flight. At 6:36 p.m. a silver truck was seen exiting the driveway of

Caines’ Fort McMurray home. At 6:57, a white quad cab truck, registered to Marche, drove into

the driveway. A person was seen leaving the house at 7:00 p.m., getting into the white Ford 150

truck and leaving the neighbourhood. At 7:05, Marche’s truck was seen exiting the driveway and

leaving the neighbourhood. At 7:09 p.m., the Oldsmobile with a lone male occupant was seen

leaving Caines’ residence. The vehicle went to the Burger King drive through and then went to a

service road. An unknown dark vehicle stopped next to it, driver door to driver door. At 7:30

p.m., the Oldsmobile was seen leaving Fort McMurray.

[432] As indicated by the calls at Tabs 132, 133, 136 to 138, made between 6:14 p.m. and 8:40

p.m. on October 25, 2005 in furtherance of the conspiracy, Flight began collecting money that

day. In view of the subsequent calls, surveillance evidence, and the seizure following the

eventual vehicle stop of Flight, I find that this money was for the purchase of cocaine. In the call

at Tab 132, Flight, who was at Caines’ Fort McMurray residence, asked Marche if he was going

to see him that night, “... because I, I got to get going, ‘cause I got everything set up.... I told

everyone I’d be back tonight so I could leave and go on again, right? So everyone’s lined up

2012 ABQB 521 (CanLII)

Page: 111

now.” Marche said he had to, “put that together.” Flight indicated he was leaving at 7:00 p.m.

and Marche promised to be there before then.

[433] In the call at Tab 133, Flight, who was still believed to be at Caines’ Fort McMurray

residence, told Caines Sr. he was going to give him a number to call and then Caines Sr. was to

go, "pick up that stuff and take the three or four men that you needs... Three or four people... Oh.

You got twenty two to twenty five people..." He then gave Caines Sr. the phone number

registered to Penton and indicated it was “Josh” and he had told Josh that someone was going to

call him. He asked Caines Sr. to look after that for him. Flight said: "You'll go pick that up, and

bring it, put it into the microwave." Caines Sr. said he would do it later.

[434] In the call at Tab 136, made at 8:33 p.m. on October 25, 2005, Flight, who was travelling

southbound on Hwy 63 between Fort McMurray and Edmonton, asked Caines Sr. if he had

talked with “buddy.” Caines Sr. said: “Not yet.” Flight said:

Call him, cause - and, and, and ask - uh, when you phone, just say how many

people have you got. He’ll tell you, we got twenty-two, twenty-four, twenty-five,

whatever... ‘Cause I’m trying to get enough to make up - for to make it

worthwhile.... To go... You know what I mean? I’m trying to, trying to survive

here.

[435] Caines Sr. asked him how it was going. Flight responded:

Oh, it’s good, so far. If that fellow is, if that fellow’s up where he said... Well,

then I’m okay. You know, I, (stammer) I get, I get four.... But, he’s gotta be up

where he said. But I, I don’t - you never know. See, these fellows, I... he’s new to

me too. I never, you know, I never, I never, I never, uh... So anyway, we’ll see

now what happens. Wait and see, see what, what’s gonna happen. Anyway, you

finds out now what that is, you let me know will you... Just say, you know, it’s

twenty-two people or thirty people or fifty people or sixty people, whatever... But,

anyway, buddy. You should, you should see him. He, he had to send somewhere

else for that... He had to call somewhere else, so.

[436] Given the seizure of cocaine made following the subsequent vehicle stop of Flight, I

interpret his reference in this conversation to getting “four” to mean four kilograms of cocaine.

[437] In the call at Tab 137, made at 9:33 p.m., Flight, who was southbound between Fort

McMurray and Edmonton, again spoke with Caines Sr, who reported that he had called, “our

man” and “he hasn’t got it, his, he’s leavin’ the Mac... Leaving the Mac. I guess he hasn’t, he.

Somebody owed him up there. So he went out until about two-thirty this morn, morn,

morning...Why don’t you give him a quick call, and see what, see what the scoop is?” Flight

indicated he was not a happy camper. He asked for the number and Caines Sr. gave him the

phone number for Penton. Flight indicated he was going to call him (Penton).

2012 ABQB 521 (CanLII)

Page: 112

[438] Flight, who was still southbound between Fort McMurray and Edmonton, again spoke

with Caines Sr., who was at or near Edmonton, in the call at Tab 138, made at 9:39 p.m. Flight

advised Caines Sr.:

Yeah. Uh, I-I straightened them out. I-I-I-I’m not gonna be tamperin’ with those

guys. So, uh, he. He’s gonna meet me there tomorrow morning at six o’clock... So

what I can do. I can take three out of what I got there and, and leave, leave and

you go get it my place, how’s that?... I don’t know what he got, he said. I said you

know is it twenty, is twenty-five people, twenty-six people, thirty people, how

many fuckin’ people have you got?...

[439] Given the context, I infer that Flight was using the term “people” and “whatever” in the

calls at Tabs 133, 136 and 138 to mean money.

[440] Corporal Pedersen (then Cst.) began surveillance on Flight’s Edmonton residence on

October 25, 2005 at 9:45 p.m. At 11:28 p.m., the blue Oldsmobile arrived, and pulled into the

parking lot. The male driver stayed in the car for a period of time, then entered the apartment

through the main door, carrying a translucent bag with a shoe box size item in it and some weight

to it, and a medium black suitcase taken from his trunk. He also was cradling something in his

left arm. He was stocky, under 6 feet, and into his 50s, wearing a ball cap, similar to the

description of Flight.

[441] At 5:40 a.m. on October 26, 2005, Flight was seen placing a bag into the trunk of his car

at his residence in Edmonton. He then travelled south.

[442] As indicated by the call at Tab 140 between Flight, who was in or near Calgary, and

Caines Sr. at 8:53 a.m. on October 26, Flight had no luck in collecting money from Penton.

Caines Sr. was concerned that might leave Flight “short.” Flight said:

Well, I don’t know what the other fellow wants, so you, so he said to come and

see him and I don’t know if he’s gonna take some of that too ‘cause if he do, is

not even goin’, I’m not even goin’... Not worth it. I mean it’s not worth it

anymore. I’m just, I’m wearing myself out for nothing here... You know yourself,

I, it-it’s a long beat. It’s... long run... And never mind the stress with it all.

[443] Flight continued to complain. Then he said: “I left your stuff in the... microwave. So, uh,

I’ll just have to live with it, that’s all.” Caines Sr. said: “Yeah. Have the other fellow deal with it,

that’s all.”

[444] Flight arrived at Caines’ residence in Calgary at 9:06 a.m. He left there at 9:22 a.m. and

travelled west.

2012 ABQB 521 (CanLII)

Page: 113

[445] In the call at Tab 141, made at 9:42 a.m. on October 26, 2005, Caines Sr., who was at or

near his Edmonton residence, told Flight, who was between Rockyview and Scott Lake Hill,

Alberta, that he had been “there,” by which I take him to have meant Flight’s Edmonton

residence, and had picked “it” up and put the broom back where it was since it slid over when he

opened the door. He asked if Flight was down “there,” presumably meaning Calgary and, more

specifically, at Caines’ Calgary home. Flight said no, he had been. Flight told Caines Sr. the

“other fellow’s coming up,” but Flight did not know if Pam was coming with him or not. Flight

said the “other fellow” has to be “here” today and tomorrow night he is going to Fort Mac.

Caines Sr. indicated he was just pulling in to his driveway and had to put some money in the

bank because it was getting close to Monday and the landlord got after him the day before for

some money. Flight suggested: “... you should get some more out of other fellow now when he

comes up you know.” Caines Sr. said he was going to try. Flight added: “... because he told me to

give you four... but then I wouldn’t had enough to get...... And I knew if I get down there he

wouldn’t take it if he knew that buddy was like that...”

[446] Given this discussion, particularly the mention of Pam possibly coming up with “him,”

and the surveillance evidence, I take the reference to “other fellow” by Flight and Caines Sr. in

this call and the call at Tab 140 to be a reference to Caines.

[447] At 4:40 p.m. (Tab 143), Flight called Van Den Hurk to see if he could get “a couple of

feeds of hay,” presumably marijuana, and said that he was a couple of hours out. Flight arrived at

Pitt Meadows, British Columbia at 7:27 p.m. Detective Greaves testified that the Haney chapter

of the HAMC has a clubhouse in Pitt Meadows.

[448] At 9:00 p.m. on October 26, 2005, Flight left the McDonald’s Restaurant in Pitt

Meadows, British Columbia and followed a black Ford truck leased to Van Den Hurk to a 7-

Eleven, where they met the occupant(s) of another vehicle. A black hockey bag was placed in the

black truck. Flight then followed the black truck to a residence. At 9:51 p.m., he was observed

placing a black duffle bag and plastic bag in the trunk of his vehicle. He then proceeded to drive

east into Alberta. At 9:02 a.m. on October 27, 2005, Flight was stopped by the RCMP driving

east on the Trans Canada Highway near Banff. The police searched his vehicle and found

approximately four kilograms of cocaine, in addition to six pounds of marijuana. The drugs, cell

phones and currency found in the glove box are consistent with Flight being a courier of cocaine

and money.

[449] Intercepted communications at Tabs 157, 168, 170, 171, 174, 179, 181, 202, 213, 215,

217 and 220, made between October 28, 2005 and November 4, 2005 in furtherance of the

conspiracy, indicate that over the course of more than a week, Caines attempted to obtain more

kilograms of cocaine.

[450] In the call at Tab 157, Caines, who identified himself as “Bam-Bam,” asked Ponytail,

who had a phone number with a 403 (southern Alberta) area code, what day would be good to go

see him. Ponytail said not for a week and then indicated: “... he told me, he told me ten days

2012 ABQB 521 (CanLII)

Page: 114

from, from this morning, so...” Ponytail suggested that Caines call him in five to six days, and

then “we can pretty much every, every two weeks.”

[451] In the call at Tab 168 on October 31, 2005, Caines asked an unknown male with a 780

area code (northern Alberta) number: “Hey, I was just wonderin’, can you fuckin’, can you get

those fuckin’ girls there?... Can you ah see what you could get ‘em for and give me a shout

back?” The unknown male said he would check it out that day as he was supposed to meet with a

guy. Caines called the unknown male later that day (Tab 170) and complained that the unknown

male had not called him back. The unknown male said he was waiting to meet his buddy and

then he would call. He continued: “Uh, okay, it’ll be tonight I’ll call you. I know I can get, uh, if I

have paperwork, twenty-one in Van.... Yeah. Right now, dude, fuckin right now. If I have the

paper, I could get it for twenty-one all day long.” Caines asked him if he wanted to go for a ride.

The unknown male said: “Well, we can do that, yeah, but I just don’t really wanna fuckin have

my, you know, touch it at all.” However, he then said: “Let’s do it then.” Caines indicated he had

to see it to believe it. The unknown male said he would hook Caines up with his guy, but he had

to go talk to some other guy that night. Caines suggested they do “it” tomorrow.

[452] Caines and the unknown male spoke again later on October 31, 2005 (Tab 171). The

unknown male said: “Uh, I just fuckin’ talked to my buddy. Buddy’s not gonna be back till the

ninth. To do that and, on the coast, eh... Yeah, he won’t be, he won’t be back till the ninth. But I

would be able to fuckin’ find something else up here. It’s gonna be more though, eh?” Caines

responded: “Yeah, see what you can get. I’d rather get it there, if, if it’s half decent, I’m just....”

The unknown male said it would be, “like twenty-two or something like that for you, right...

‘Cause bu - like buddy wants to make whatever off of it, and I wouldn’t mind gettin’ a little cut

too, but uh, I’ll uh, I’ll check it out.” Caines asked: “What about there? What are they there?”

The unknown male indicated he was paying, for himself, twenty-six. He asked if that was too

much for Caines. Caines responded: “No, no. That’s fine, I’m, I just need them buddy, my guy’s

not around right now, so.” The unknown male asked how many he needed. Caines said: “Three

of ‘em.”

[453] Based on S/Sgt. Stapleton’s evidence on the price of cocaine in Vancouver and different

areas of Alberta, and his evidence that the term paper is used in drug trafficking to mean money,

I accept that the reference to girls in the conversation at Tab 168 was to kilograms of cocaine and

that Caines was attempting to arrange for the supply of three kilograms of the drug.

[454] In a call on November 1, 2005 between Caines and Van Den Hurk (Tab 174), Caines

asked Van Den Hurk to come see him. Van Den Hurk said it was a bad week for that but he

could start setting something up like that if Caines needed it. Van Den Hurk advised that for now

he just had to know how many and he would deal with it tomorrow. Caines asked: “What?” Van

Den Hurk replied: “Let me know, uh. Let me know, let me know how many cakes I’m gonna

bake, bake for the party and, uh, I’ll make sure I got all the dinner reservations set up for

tomorrow.” Caines said the same as last time. Van Den Hurk asked: “There’s only gonna [be]

four of us going to dinner?” Caines indicated: “Yeah.” Caines asked again if Van Den Hurk was

2012 ABQB 521 (CanLII)

Page: 115

going to come see him and Van Den Hurk said he could not do it that week but might be able to

set it up for the future. He asked Caines to come see him tomorrow. Caines asked: “Can you, can

you go even a little bit closer... Like, fuckin’. Where I was last time?” Van Den Hurk attempted

to clarify where, by using the initial “K” instead of stating the location. He indicated he could go

there, which was closer for both of them, but indicated, “I’m gonna hold one. You know what I

mean? I’m not gonna, not for that number.” Caines suggested taking five on each one. Van Den

Hurk said he would prefer that Caines come straight to him but if he had to meet him part way,

he probably could. Caines suggested that Van Den Hurk find someone to come see him. Van Den

Hurk said he could, but not without more notice. He indicated: “I don’t trunk it like you; I do

something else. I do it safer than you do... And you know, I could set that up for you so it’s super

safe for you too if you want to invest a little bit of money, it’s fine.” Caines asked how long it

takes. Van Den Hurk said four to five days. Caines said alright but he wanted Van Den Hurk to

make sure he came to see him from then on.

[455] I interpret Van Den Hurk’s reference to four going for dinner to mean four kilograms of

cocaine, given Caines’ mention that he wanted the “same as last time,” by which I take him to

have meant the time when Flight went to Pitt Meadows and subsequently was stopped with four

kilograms of cocaine.

[456] In a call about three hours later (Tab 179), Caines, who was at or near Fort McMurray,

spoke with an unknown male with a British Columbia area code number. Caines asked if he was

going to come “here” and if he could bring “those things” here. The unknown male said he was

pretty sure that would not be a problem. Caines told him: “Bring me fuckin’ five of ‘em.” Caines

asked the unknown male if he could do that for him. He said: “Okay. Let me know, because I’ll

give you a buck on each one.”

[457] Two hours after that conversation, Van Den Hurk called Caines back (Tab 181) and

asked: "Um, what do you want to pay for labour?" Caines told him “a buck.” I interpret the

reference to a “buck” in this call and the call at Tab 179 to mean an extra $1,000 for bringing the

cocaine to Caines.

[458] Caines called Van Den Hurk on November 3, 2005 (Tab 202). Van Den Hurk asked

where Caines could meet him. Caines responded: “...where Baldy is.” Van Den Hurk asked:

“Isn’t that where buddy got fuckin’?” Caines replied: “No... Way before there.” Van Den Hurk

asked if they knew “he” was coming. Caines said that it was just an accident, that “he” was

speeding. This is clearly a reference to the Flight vehicle stop. They continued to discuss where

to meet and Van Den Hurk again asked Caines what he was going to give him. Caines

responded: “... you know what I’m gonna give you. One on top.”

[459] In the call at Tab 213 on November 4, 2005, Ricco King told Caines: “I got it.” Later that

day, a text message (Tab 215) was sent from Caines’ number to Cardinal’s number saying:

“Tonight we eat.” I take this to mean that Caines had successfully obtained a supply of cocaine.

This is confirmed in the call at Tab 217 made later that evening. Van Den Hurk told Caines, who

2012 ABQB 521 (CanLII)

Page: 116

was at or near Calgary, that he happened to have a really good friend out there who was sitting on

a few. He asked Caines how many he needed. Caines said: "Actually, I just... I don't even know

uh, fuckin' let me know what they are, as I just got some, so." Van Den Hurk asked if Caines was

still coming to see him and Caines said: "Yeah, in a couple of days." Van Den Hurk asked Caines

what he paid for them. Caines said "Five." Van Den Hurk commented that was cheap. Caines

said: "I know. Why they're only, they're four there, right?" Van Den Hurk responded: "Dude, um,

I just p - I just paid uh, fifteen to a guy today, paid me five five for ‘em." Caines said: "Holy fuck,

did he get ripped." Van Den Hurk said he could do a better number for Caines. Caines told him:

"... that's the thing is, there's some really good lines here, man." Van Den Hurk cautioned: "Yeah,

but lines are gonna go down, because it's getting dry again. Like, it was really, ‘cause everything

is two days behind there, it was really wet here for a couple days." Van Den Hurk said it dried up

now. Caines indicated not around there. Van Den Hurk said it would be in a couple of days.

[460] In a call at Tab 220 on November 4, 2005, Marche told Caines: “There’s about twenty-

four and I got about ten rolling in... I’ll, I’ll return fucking everything I got. I barely sold anything

from him...I had no idea.... I, I honestly thought that was alright, because fucking we’ve been

sitting in the weeds...” Caines said he could understand if Marche had borrowed a couple to get

by, but... Marche apologized. Caines said: “That guy’s gonna get smashed for doing that.” Caines

told Marche: “Our guy’s gonna give you a shout and make sure you bring that to him.” Caines

also told Marche to quit trying to piss him off. Marche promised to clear everything with him

first from now on.

[461] In my view, these communications corroborate Marche’s evidence that Caines’

distributors were expecting a shipment of cocaine about the time of Flight’s arrest. After the

seizure of the cocaine Flight was transporting, they had to wait more than a week for a new

supply. Meanwhile, they were “sitting in the weeds.” It also corroborates his evidence that Caines

arranged for the supply of cocaine for their group. Further, the call at Tab 220 corroborates

Marche’s evidence that he occasionally bought cocaine from someone else, although it is

apparent from that call that Caines was upset about it.

(vi) Caines tells Bird to collect his “thing” from

Cardinal

[462] Marche testified that on occasion Caines would have him or someone else in the group of

distributors pick up cocaine from another person in the group. The call at Tab 236, made in

furtherance of the conspiracy, reflects such a situation. In that call, made on November 7, 2005,

Bird asked Caines: “So did you make her, or what?” Caines answered: “Make her, yeah...”

Caines asked: “Did you go get your thing?” Bird said: “No, that’s why, that’s why I’m gettin’ a

hold of you. And I, I got, I’m rallying up everything today, so I’m gonna get it all done, so

tonight I’ll... have fuckin’ everything for you.” Caines told him: “Call Cards.” Bird asked: “Is

that who’s got it?” Caines said: “Yeah.” Bird asked: “‘Kay, what’s, what’s those last four again?

The numbers?” Caines responded: “6627.” Those were the last four digits of Cardinal’s phone

number.

2012 ABQB 521 (CanLII)

Page: 117

[463] Given that Caines had obtained a supply of cocaine on November 4th and that Bird was

trying to collect money, I infer the “thing” he was to pick up was a quantity of cocaine, which

Cardinal was holding for him.

(vii) Hoskins acted as a courier and bad cocaine incident

[464] Marche spoke about Hoskins acting as a courier of money and cocaine for Caines and of

an occasion when he took Hoskins down to Calgary. He was unclear if that was a different

occasion than when he exchanged bad cocaine for a new supply. The intercepted

communications at Tabs 271, 275, 276, 282 to 284 and 289, made in furtherance of the

conspiracy, suggest that this occurred at the same time as the bad cocaine incident.

[465] In a text message (Tab 271) sent on November 14, 2005 from Hoskins’ number to

Caines’ number, the person believed to be Hoskins told the person believed to be Caines: "Really

sore throat on couch all day i can bus 2morrow if u want.” Between 1:13 and 1:39 a.m. on

November 16, Caines attempted to get in touch with Marche through Weiss (Tabs 275 and 276).

He managed to contact Marche at 1:42 p.m. that day (Tab 282). Marche told Caines that he

would have to come see him a little later. Caines asked: “If you have love for me, why

(unintelligible)?” Marche said: “Negative. A couple. That’s it... That, ah, the last there I don’t

know if the other buddy got (unintelligible).” Caines asked if he still had “those.” Marche said he

did. Caines told him to bring them back. Marche told him: “... it’s not complete, but they’re

sectioned in - but they’re still, you know what I mean, in one. They’re sectioned in four, but

they’re still in one piece. Each piece is one.” Caines asked if he still had a full one and Marche

said he did. Caines asked if that was it and Marche indicated a full one plus. Caines asked: “...

it’s no good or what?” When Marche said, “Yes,” Caines instructed: “Well, bring it all back.”

[466] I take this conversation to be about the bad cocaine and the quantity under discussion to

be more than one kilogram.

[467] At 4:01 p.m. that day, a text message (Tab 282) was sent from Hoskins number to

Caines’ number asking: what time: “What time u b home.” At 4:32 p.m., an unknown male

spoke with (Tab 284) Caines and asked: “Tell Mark I’ll be there in a bit.” Caines told him to

hurry up. He needed “it” before five. At 4:52 p.m., Caines called Marche (Tab 289) and told him

to be there in five minutes and to, “Bring the bad too.” Caines asked: “Have you got any love?”

Marche told him: “Like I said, I only had two bills.”

[468] Marche’s evidence about the trip down to Calgary with Hoskins was in large part

corroborated by Weiss, although she thought it was a couple of months rather than a week or so

before her trip to Calgary with Marche which ended with their arrest in Red Deer. She testified

that she went down to Calgary with Marche and Hoskins. She had been friends with Hoskins for

a long time. Marche told her that Caines said the trip had to happen now. Marche was supposed

2012 ABQB 521 (CanLII)

Page: 118

to drive Hoskins down to Calgary for what she understood was to be a drug transaction. She just

went along for the ride.

[469] Weiss testified that they left Fort McMurray at around 11:00 p.m. or midnight. They

stopped in Gasoline Alley and then continued on to Marche’s house in Calgary. She said that

Marche had a packsack of money, which she eventually saw when they were at Marche’s house.

It was bundled in elastics in a vacuum packed bag. There were about six or seven bundles. When

they got to Marche’s house, they sat and waited. They ended up spending the night there. The

next morning, they went to the 7-Eleven, drove around Calgary and then she and Marche went

back to his house. They left there and went to Boston Pizza on 17 Avenue SW, where a girl

carrying a bag got into the back passenger seat of the truck. She put the bag in the back of the

truck, between the passenger seat and middle console, and then got out. As far as Weiss could

recall, there was no conversation.

[470] Weiss and Marche went back to Marche’s house, where they stayed for about an hour.

She said they then went back to Fort McMurray.

(viii) November 23 and 24, 2005 - Marche and Weiss’

trip to Calgary and vehicle stop

[471] Marche testified about his trip to Calgary with Weiss that led to the vehicle stop in Red

Deer and seizure of cocaine.

[472] Intercepted communications made in furtherance of the conspiracy and surveillance

evidence corroborate Marche’s testimony that he initially waited at Caines’ Calgary home for the

cocaine to be delivered and eventually three kilograms were delivered to Marche at a hotel.

[473] In a call (Tab 319) on November 22, 2005 at 1:16 p.m., Marche, who was at or near Fort

McMurray, told Caines who was believed to be at his residence there, that he had just gotten up.

Caines said he would be home. He told Marche to come over and that he would be leaving in an

hour.

[474] According to police surveillance reports, on November 22 at 9:27 p.m., a grey Chevrolet

Tahoe registered to Sukys arrived at King’s Calgary residence. A male fitting the description of

Sukys emerged. At 9:45 p.m., a male fitting the description of Farhan Sattar arrived in a grey

GMC Envoy registered to Abdul Sattar of Golden, British Columbia. He emerged from a vehicle

carrying a small bag and entered the residence. At 10:31 p.m., the male believed to be Farhan

Sattar got into the Envoy and went to what was believed to be his apartment in Calgary. At 10:49

p.m., he left that location. At 11:00 p.m., he drove to the Subway, where he was met by an

unknown male driving a white Mazda SUV. A white male fitting the description of Ricco King

got into the Envoy. At 11:20 p.m., the male believed to be Farhan Sattar returned to Ricco King’s

Calgary residence. At 11:35 p.m., he returned to what was believed to be his apartment in

Calgary, one on which he was paying the utilities.

2012 ABQB 521 (CanLII)

Page: 119

[475] At 11:48 a.m. the next day, King, who was at or near Calgary, called Caines (Tab 331)

and asked if Caines had already swung by there the night before. Caines said he had but

"numnuts wouldn't come over." King asked why someone had not gone to his place. Caines said

because he had not gotten there until late. King asked if he left anything for "him." Caines

responded: "Yeah. He's sitting there still." King asked: "... that would be where?" Caines said:

"Where fuckin', I lay my head." Caines, in my view, was telling King that Marche was at his

home in Calgary with the money for the cocaine.

[476] The police observed Marche’s white Ford F150 in the driveway of Caines’ Calgary

residence at 12:45 p.m. on November 23, 2005. At 1:39 p.m., Ricco King driving a Hummer

registered to his father, Lloyd King, met an unidentified male in front of Ricco King’s Calgary

home. At 1:43 p.m., the Hummer was parked in front of Caines’ Calgary residence. At 1:46 p.m.,

the Hummer was observed leaving that residence and parking in front of King’s residence. A

Landrover, which was there at the time, left King’s residence at 2:03 p.m. At 2:37 p.m., the

Landrover was seen in the area of King’s residence with King and another male on board. At

3:00 p.m., the Hummer left King’s residence. At 3:32 p.m., the Hummer was back in the area of

King’s residence.

[477] At 3:51 p.m. on November 23, 2005, Caines asked (Tab 332) Marche, who was in

Calgary, if Marche had come over yet. Marche said he had not and they would not be able to run

it that night anyway, “... it's raining up there." Caines told him to just chill there. Marche said:

“No, I was actually, we’re gonna go grab a room soon.” Caines told him to just chill there until

he called him back. Caines called King (Tab 333) a minute later and asked: "What's going on

with him?" King said: “... apparently about ah ten minutes.” Caines asks if King could "... go let

him know that."

[478] At 4:33 p.m. that afternoon, the white Ford was seen leaving Caines’ Calgary residence

with a male believed to be Marche driving and a female passenger. At 5:12 p.m., the two went

into a 7-Eleven at 32 Avenue and McLeod Trail and bought food. At 5:30 p.m., they were at the

Holiday Inn at the corner of 42 Avenue and McLeod Trail, S.W. Calgary, where they took a large

room.

[479] Marche testified that some of the communications he had with Caines during this incident

were on Weiss’ LG cell phone seized from Weiss on November 24, 2005. An outgoing text

message on that phone to a number with a 403 area code was sent on November 23, 2005 at 5:51

p.m. that said: “OK, we’re at the holiday inn on macleod room 203.” Marche thought that was a

text to the person who came by with the “units.”

[480] At 8:14 p.m. that night, Caines called King (Tab 335) and asked: “What’s going on with

that?” King said he had no idea - he was in Banff. King told Caines: ... he went to see your...

buddy and... he was gonna show them the ah apartment building and he's taken, I guess, he's

taken ah, he's got some other friends and their lookin' at taking three buildings right now.” Caines

2012 ABQB 521 (CanLII)

Page: 120

asked if he could ask "him" to top up the Blackberry. King said "he's" getting that all lined up

because they all went down. King told Caines: "But, I, he did go over and, and take your friend to

look at that building and there's three units that are, that are basically, that are basically he liked.

So his buddies are gonna, I guess they're taking all three.” Caines asked: “... what about these

fuckin’ things? They’re not, they’re, they’re gonna get fixed or? King responded: "Well yeah, I

guess the, the possession date. The people are ah, the people are cleaning them tonight or

whatever and the possession date. This guy is just going and ah tomorrow I guess. Monday."

Caines said to give the guy his number and tell him to call Caines tomorrow.

[481] Marche identified one of the incoming calls shown on Weiss’ phone for November 23,

2005 at 11:04 p.m. as being from Caines asking if anyone had shown up yet. Marche identified a

text sent at 11:27 p.m. that evening to “Jeff” as being to Caines. The text stated: “I guess he

never got any of my texts or calls. Its all good, he is coming by a little later for a visit.” Marche

said he was referring to the person who ultimately delivered the cocaine.

[482] On November 24, 2005 at 11:20 a.m., the police established surveillance at the Holiday

Inn. At 11:50 a.m., Marche put two black bags and a red shopping bag into the white Ford. At

12:15 p.m., the white Ford drove to a strip mall on McLeod Trail. At 12:18 p.m., Weiss came to

the truck from the area of a Bridal Shop and Spy Store. At 12:33 p.m., the male believed to be

Marche got into the truck and they left. At 13:20 p.m., surveillance was turned over to

Edmonton. The white Ford was stopped by a marked RCMP vehicle in Red Deer.

[483] The items seized as a result of the November 24, 2005 vehicle stop by the RCMP of

Marche and Weiss near Red Deer corroborate his evidence. Of particular relevance are the three

kilograms of cocaine found in a concealed compartment in the vehicle, the content of Weiss’

green LG Telus cell phone located on Weiss’s person, the photograph of a bag of money

retrieved from the digital camera found in the luggage in the trunk, and the content of the

Audiovox Telus cell phone.

[484] Marche testified that he ran the money they brought down to Calgary through a money

counter at Caines’ residence. When Caines’ Fort McMurray home was searched, a Royal

Sovereign money counter was seized from the third floor bedroom.

[485] Marche’s evidence about the November 23 and 24, 2005 trip to Calgary also is

corroborated in large part by the trial evidence of Weiss. While part of her evidence includes

hearsay, I conclude the conversations were by alleged co-conspirators (i.e. Marche, King and

Caines) and made in furtherance of the conspiracy.

[486] She testified that she met Marche in about April 2005. By the fall, he was her boyfriend

and they lived together in Fort McMurray. She said she met Caines in about 2000 at Cowboys,

where she worked as a bartender.

2012 ABQB 521 (CanLII)

Page: 121

[487] Weiss said that she and Marche left Fort McMurray for Calgary at about midnight on

November 22, 2005 in his white Ford 150 truck. They drove overnight, arriving at Caines’ house

at about 7:00 a.m. She said Marche was to take down money to purchase cocaine. She saw the

money when it was beside her on the loveseat in Caines’ house. She guessed there was between

$100,000 and $200,000 in about ten bundles wrapped in elastics in a vacuumed sealed bag inside

a laptop case.

[488] Weiss testified that when they got to Caines’ house, it was unlocked. They waited inside

for about six hours. Melissa, someone she used to work with at Cowboys, arrived. Melissa went

upstairs and rummaged through a closet. Marche asked her: “Is that what you’re looking for?”

Melissa said: “Yes, it is.” She took the money and left. Weiss testified that she said “Hi” to her

but Melissa did not say “Hi” back. Melissa was in the house for about five minutes. I note that

Ricco King’s wife is named Melissa.

[489] Weiss’ evidence was that she and Marche sat for a bit, he fell asleep, and a couple of

hours after Melissa left, a man came in the house. She described him as being tall (6 ft), dark-

skinned, well built, not overweight - maybe Mexican or East Indian. She had never seen him

before. She asked Marche who he was and Marche said “Ricco.” She had thought he was another

Ricco, a Caucasian, a friend of hers and her ex-boyfriend in Calgary. She said “Hi” and Ricco

said “Hi” to both of them. Weiss believed Ricco said: “It’s going to be a little bit longer.” He

then left.

[490] Weiss and Marche kept waiting. She went out to the truck since she did not feel

comfortable staying in Caines’ house. She said it was an eerie feeling. She did not want to be

there. She napped for one to two hours and then went back into the house. Marche was still there,

sleeping on the couch. She did not notice anyone else there. Marche got a phone call from

someone. Marche told her afterwards that it had been Caines. Marche said “... it’s going to be a

bit longer” to the person on the other end of the line. Marche told her Caines said it was going to

be over night and that they could stay at his house. She did not want to and so they went to the

Holiday Inn on MacLeod Trail in Calgary. Weiss believed that they went to a 7-Eleven first to

get junk food.

[491] According to Weiss, they got to the hotel at around 7:00 p.m. They went to their room

and watched TV. She woke up at about 7:00 a.m. At 9:00 a.m., there was a knock on the door

and someone came into the room. She thought it was Ricco. However, it was dark in the room,

she was under the covers, she only saw the back of his head, he was five feet away, and the

lighting was dim although the TV and lamp were on. It looked like the person who had been in

Caines’ house. He dropped off a Coors Light beer cooler with the cocaine in it. He was in the

hotel room for only about five minutes. She had no interaction with him. She did not hear any

conversation. Later, her cell phone rang and it was Caines, who asked to talk to Marche. Weiss

testified that she heard Marche say: “There’s three instead of four.”

2012 ABQB 521 (CanLII)

Page: 122

[492] After the call, she and Marche drove around Calgary looking for a spy store since Marche

was fascinated with gadgets. They went to a 7-Eleven and a spy store, and then they were off.

They got as far as Gasoline Alley in Red Deer, where they planned to wash the truck. However,

they were pulled over by the RCMP on suspicion there were stolen tools in the truck. Weiss

testified that an officer went up to the driver’s side window and told Marche why they had been

pulled over. Marche said they did not have any tools and the police could search if they liked.

[493] Weiss testified that an officer asked her to get out of the vehicle and then searched her

purse for stolen tools. He told her to stay where she was, and then put Marche in the back of the

cruiser, opened all four doors of the truck, and put the contents of her purse on the hood of the

truck. She said Marche was taken to jail. The police did not find anything in the truck right away.

They threw Marche’s laptop on the ground, put her in handcuffs and placed her in the cruiser.

She waited for an hour. The police then brought the canine unit and she was taken to jail and

charged with possession of cocaine for the purpose of trafficking.

[494] Weiss testified that, to her knowledge, there were three kilograms of cocaine in the truck

in the front passenger side airbag. Marche had asked her to put it in there while they were on the

highway near Airdrie, and she did. Weiss said she never went to court on the charge.

[495] Weiss testified that Marche’s brother’s friend bailed them both out next morning.

[496] Weiss admitted during her testimony that in 2005, she consumed cocaine, starting in

April of that year. At first, she used it once every two weeks and then once a week when she was

drinking with friends. She would use about a gram during a whole night. She said that she

stopped using cocaine on November 24, 2005, when she was arrested. She had used it once

during the trip down to Calgary the day before, when she took one line or about a quarter of a

gram. She said that amount did not affect her memory.

[497] Weiss said that in the fall of 2006, when she and Marche were talking about going into

the Source Witness Program, she did a three week program put on by the Alberta Alcohol and

Drug Abuse Commission.

[498] In cross-examination, she admitted to being arrested on June 27, 2006 on drug charges in

Fort McMurray. She said the police came to the place where she was staying. Among the items

they seized were: two bottles of OxyContin, 17 grams of powdered cocaine, 19 grams of crack

cocaine, 30 pills of morphine, two digital scales, seven cell phones, a dinner plate with traces of

cocaine powder, and $5,785 in cash. According to her, the drugs and money were not hers. They

were Marche’s.

[499] Weiss said the charges against her relating to the November 24, 2005 vehicle stop and

this incident were stayed or withdrawn in December 2006. She denied that she was paid money

for her evidence but agreed that she and Marche received money for accommodation and food for

about six months after entering the Source Protection Program.

2012 ABQB 521 (CanLII)

Page: 123

[500] In my view, it is appropriate to apply a Vetrovec warning with respect to Weiss’ evidence

given her admitted drug use, her involvement in transporting drugs and the fact the charges

against her arising from this incident and the June 27, 2006 seizure were stayed.

[501] Knapczyk points out that Weiss and Marche were apparently living together and the

principal area in which she can be said to corroborate his evidence is with respect to periods of

time when they were both under surveillance by the police. He contends that the police

apparently advised Marche of the details of his activities in preparing him to give evidence.

[502] I found Weiss to be a credible witness. While her evidence was consistent with Marche’s,

there is nothing to indicate that they colluded in fabricating that evidence. Some degree of

consistency is to be expected given they embarked on this enterprise together. Also, the

surveillance evidence and intercepted communications back up their testimony.

(d) Conclusion on Marche Evidence

[503] At the time of rendering the voir dire decision, I had read the transcripts of Marche’s

evidence, but had not heard the audiotapes of his evidence from the preliminary inquiry.

[504] I listened to those tapes over a period of two days and found them to be chilling in the

sense that Marche candidly described a business operation that was sophisticated and complex,

involving the transportation of cocaine into Fort McMurray, its initial distribution among the

group, cooking some of it into crack cocaine, packaging it, and putting it out on the street. His

evidence was clear, coherent, detailed, and given without hesitation. He also indicated in a

forthright fashion when his memory failed him.

[505] During the voir dire, the Defence made much of the fact that Marche acknowledged to

authorities in the Source Protection Program that one motivation for his co-operation with the

police was “revenge against drug dealers.”

[506] I accept that given his life of crime, addiction and eventually death, his decision to co-

operate with the authorities may well have been motivated by revenge against the influences that

destroyed him, in effect from a desire to expiate his sins, as the evidence shows the devastating

effect of the drug trade on his life. However, I do not view that motivation as undermining the

veracity of his evidence, which is corroborated by independent evidence on many material points.

[507] Marche, in effect, speaks from the grave in this case. For the following reasons, I accept

that he tried to describe events as truthfully as possible, bearing in the passage of time and his

personal circumstances:

2012 ABQB 521 (CanLII)

Page: 124

(a) The dialogue between Crown counsel and Marche was calm, clear, and

mutually responsive. There was little or no confusion between Marche and

his interlocutor as to the questions asked and answers given.

(b) Although events were described as being within certain time frames rather

than on precise dates, this is not surprising given the effluxion of time and

Marche’s lifestyle, including his drug consumption when the events under

examination occurred. However, in describing the events, he gave a

chronological, detailed recitation of facts.

to refresh his memory. The statements apparently were voluminous. No

evidence was elicited from Sgt. Anderson to cast aspersions on the

methodology or integrity of the process by which the statements were

obtained from Marche.

(d) Marche described with clarity the participants in the drug group as

including himself, Cal (Gregoire), Geebs, McDonald and later Cardinal.

He testified how they operated under the direction and control of Caines,

the amounts of cocaine purchased, the cost of the cocaine, and its

distribution and sale through street dealers. He described general practices

and then particular events and the people involved. Examples of his

detailed description of events include:

C the Showgirls incident;

C receiving cocaine at the Sawridge Hotel;

C receiving cocaine on the highway at the edge of town after

the security officer came out to the Sawridge Hotel parking

lot;

C taking money to someone at a Sawridge Hotel room and

receiving cocaine in return;

C receiving a suitcase of cocaine from Hoskins;

C the bad cocaine transaction;

C the trip to Calgary at Caine’s instruction with a bag of cash

(photographed) to pick up cocaine;

C the events leading to the arrest of McDonald;

2012 ABQB 521 (CanLII)

Page: 125

C the events leading to the arrest of Cardinal;

C his description of Caines’ fleet of vehicles;

C his use of nicknames for certain of the individuals,

nicknames corroborated by other evidence.

[508] Marche was consuming drugs during the period in question. However, Cst. Gibson, who

testified he was familiar with individuals addicted to drugs, whether marijuana, cocaine,

methamphetamine, stimulants, heroine, OxyContin, or ecstasy, saw Marche 10 to 12 times from

April 2005 to February 2006 and spoke with him on the phone on a further ten occasions.

Corporal Gibson testified that he found him to be sober and coherent during debriefing sessions

that lasted from one-half hour to one hour.

[509] Sergeant Anderson testified that at his meeting of February 2006 with Marche, he did not

note anything that would suggest Marche was under the influence of alcohol or drugs. He thought

that Marche was sleepy during the June 2006 interview, but not under the influence. Marche

acknowledged at the time being sleepy from having taken OxyContin.

[510] On June 7, 2006, Sgt. Anderson and Cst. Rhonda Sargent interviewed Marche. Sergeant

Anderson said that Marche volunteered that he had taken OxyContin earlier in the morning. The

interview was at 11:30 a.m.. Sergeant Anderson said that OxyContin ranges in dosage from 10 to

80 millilitres and that Marche indicated he had taken 10 millilitres, the lowest dosage. The

interview on June 7 was three weeks before the Weiss arrest around June 23 or 24, 2006 in Fort

McMurray. Sergeant Anderson was asked whether he was of the view that Marche continued to

be active in the drug scene at that time. He responded that he suspected it could be the case and

that when Weiss was arrested he was satisfied that she and likely Marche were still involved.

[511] I am aware of Marche’s criminal record entered as an exhibit in these proceedings, and

the evidence of his unsavoury character (he was a drug trafficker, addicted to cocaine and pain

medications, and was paid for his co-operation with the police), and therefore apply the Vetrovec

warning. However, as noted above, I have found there is ample corroboration of the material

aspects of Marche’s evidence.

[512] As neither this Court nor counsel has had the benefit of live cross-examination at trial of

Marche, and as his evidence was entered through transcripts and an audio-recoding of his oral

testimony from the preliminary hearing, I also apply the Potvin (R v Potvin, [1989] 1 SCR 525)

warning of the dangers of accepting evidence and attempting to assess credibility in the absence

of such live cross-examination.

[513] In the result, I am impressed with the strength of Marche’s evidence, which has been

corroborated in material ways. I accept his evidence on the following points:

2012 ABQB 521 (CanLII)

Page: 126

(a) There was a thriving drug trafficking operation in Fort McMurray with

Caines at its head, and at least five people, including McDonald, Cardinal,

Marche, Geebs and Gregoire, purchasing at the kilogram level from

Caines and distributing the drugs to street level dealers. Others such as

Smith, Chad and Cliff joined the group and then left.

(b) Caines arranged for the supply of the cocaine.

(d) Flight and Hoskins acted as couriers of the cocaine/drug proceeds for

Caines.

(e) Marche provided information to the police that resulted in the arrests of

Cardinal and McDonald and the seizure of large quantities of cocaine as

well as drug paraphernalia.

(f) On occasion, Marche bought cocaine from people other than Caines,

including from Sekulich and/or Cliff.

(g) In the summer of 2005, there was a meeting in the parking lot of Showgirls

in Fort McMurray. Marche drove around Fort McMurray to pick up four or

five trouble makers or “riff raff” and delivered them to have a meeting

with Caines and others in this parking lot. Marche took those trouble

makers back to their former locations after their meeting with Caines and

the others. Marche saw nothing to identify the men with Caines as being

part of the HAMC. He did not know them.

(h) Marche was told by Caines that the purpose of the meeting was to make

sure everybody had to purchase cocaine through Caines.

(i) Two people, Josh and Sheldon, subsequently were brought in to Fort

McMurray as “problem solvers” or “fixers.” Marche said he was not aware

of them being part of the HAMC.

(j) Caines told Marche that someone took a kilogram of cocaine from one of

the group, although he could not recall caines mentioning who.

[514] After refreshing his memory from his October 2007 statement to the police, Marche said

he recalled Caines referring to the people involved in the Showgirls incident as Hells Angels. He

then clarified that Caines had referred to people he had dealt with as being HAMC, although not

2012 ABQB 521 (CanLII)

Page: 127

specifically with respect to the Showgirls incident. In cross-examination he said he did not

believe he had ever heard the name ‘Hells Angels” come out of Caines’ mouth.

[515] In direct examination, Marche testified that Caines told him he way paying “the bikers”

for the exclusive right to traffic in cocaine in Fort McMurray. In cross-examination he said that

he did not know if, in fact, Caines was paying for protection and to whom. On re-direct, he

clarified that he did not hear anything specifically from Caines about who and/or if he was paying

protection. He said he did not remember where he heard it.

[516] The Defence contends that Caines’ statements to Marche are not admissible as they were

not made in furtherance of a conspiracy. In my view, it is unclear when Caines made the

statements to Marche. As they may have been made before the Accused are alleged to have

joined the conspiracy, they are not admissible against the Accused. Further, given that Marche

resiled from his initial evidence about bikers and HAMC, I would not have given that evidence

any weight in any event.

[517] Bearing in mind the applicable Potvin and Vetrovec warnings that apply to Marche’s

evidence, as noted above, I accept that the Showgirls incident occurred in the summer of 2005 as

he described it, being a participant in the event. I find that Caines had enforcers assist him with

his cocaine trafficking operation.

5. Conclusion on whether there was a conspiracy

[518] I am satisfied beyond a reasonable doubt, based on Marche’s evidence and the

corroborating evidence, including surveillance, seizures made, and intercepted communications

made in furtherance of the conspiracy, that during the period July 1, 2005 to March 31, 2006, in

Fort McMurray and elsewhere in Alberta, there was an agreement by Marche and others to

commit the indictable offence of trafficking cocaine and that not only was there an intention on

the part of the participants to put their design into effect, they in fact did so.

[519] According to Marche, he was one of a number of cocaine distributors who were supplied

with kilogram quantities of cocaine by the same individual and, on the instructions or at the

request of that person, co-operated in receiving shipments of cocaine from couriers, storing it

temporarily, and parcelling it out to the other distributors. On occasion, they also served as

couriers of the cocaine or drug proceeds for that person. The distributors in turn would divide up

the cocaine and sell it to other dealers or end users.

[520] Marche testified that even if he received a shipment of several kilograms of cocaine from

a courier, he owed his supplier only for the amount of cocaine he kept himself and not for the

cocaine intended for the other distributors. According to him, the distributors were fronted by

their common supplier. Payment for the cocaine was made at some point in time after receipt of

the shipment. The supplier would direct whether payment was to be delivered to him directly by

the distributor or through a courier.

2012 ABQB 521 (CanLII)

Page: 128

[521] Staff Sergeant Stapleton testified that, while “fronting” is a common practice above the

dialer level, the person being fronted must be trusted. Based on Marche’s evidence, I infer that

the supplier in this case agreed to front the distributors as there was some degree of trust and, in

part, to be in a better position to make requests of them.

[522] In my view, the co-operation of the distributors with their supplier, one another and the

couriers, and their use of the same coded language, evidence an agreement to traffic in cocaine.

D. Step Two - Probable Membership in the Conspiracy

[523] Step two of the Carter test to determine whether the co-conspirator’s exception to the

hearsay rule will apply to allow admission of hearsay evidence against an Accused, is to decide

on the balance of probabilities whether or not the Accused and other alleged co-conspirators were

members of the conspiracy proven in step one. Only evidence directly admissible against them

may be used in making this assessment.

[524] I have already concluded that Marche was a member of the conspiracy.

1. Caines

(a) Assets and lack of employment

[525] As noted by the Crown in its written argument, the investigation revealed that Caines had

access to significant amounts of money, personal property and real property.

[526] Mr. Walker testified that Caines paid him about $80,000 over a period of eight months in

2004 and 2005 as part of an agreement whereby Mr. Walker would place Pam Peters on the

payroll of Cowboys (although Mr. Walker said that she never worked there) and in turn Mr.

Walker would issue Ms. Peters payroll cheques of $2,500.00 every two weeks.

[527] On November 10, 2005, Caines was stopped by the police in Red Deer. He was driving a

2000 Corvette, registered to his father, and was the sole occupant of the vehicle. When the police

searched Caines’ Calgary residence on May 31, 2006, they found an invoice from Don Wheaton

Chevrolet Olds dated November 10, 2005 to Jeff Caines regarding repairs to the Corvette,

although there was also a pink slip for the Corvette in the name of Caines Sr. According to S/Sgt.

Stapleton, drug traffickers often use nominees when buying property and other assets.

[528] During the vehicle stop, the police searched the vehicle and seized a knapsack containing

$95,620.00 in Canadian currency, bundled in various amounts.

[529] Caines had two residences: one in Fort McMurray and one in Calgary. There was

evidence suggesting that the Fort McMurray residence was purchased by or in the name of Pam

2012 ABQB 521 (CanLII)

Page: 129

Peters. The Crown suggests that both residences actually belonged to Caines. The evidence is not

conclusive in that respect. However, it is clear both homes were used by him.

[530] Sergeant Respet of the RCMP testified that Caines’ primary residence in Fort McMurray

included a big screen projection system, a weight room with new equipment and a quantity of

jewellery (including a diamond ring, ring with rubies and diamonds, gold rings, bracelets and

necklaces and six watches). A 2007 Cadillac (driven by Ms. Peters and registered to Sunsations

Tanning Salon), a 2006 skidoo, a Peace mini-chopper and two snowmobiles were found there.

The owner’s manual for the Corvette was in the house.

[531] On May 31, 2006, the RCMP executed a search warrant at a campground where Caines

had rented a camp site. The items seized included a pick-up truck, a fifth wheel trailer and toy

hauler, two quads, a motorcycle, and an all-terrain vehicle.

[532] These assets, found in the possession of Caines, although in certain cases registered in the

name of Ms. Peters or Caines Sr., suggest that Caines had significant financial resources, which

is consistent with someone who derives a significant profit from cocaine trafficking.

[533] Corporal Claudia Beauregard participated in the December 14, 2005 search of Caines’

Fort McMurray residence and observed a Canada Customs and Revenue Agency document

addressed to Caines at that address relating to a Goods and Services tax credit for the years 1998,

1999, 2000 and 2001. The document indicated that Caines had declared a net income of one

dollar in each of those income tax years. While the document relates to a period before the

Project Koker investigation, Caines was the subject of surveillance and a wiretap target during a

part of the investigation, yet there was no indication he was employed during the period in

question.

(b) Other evidence consistent with membership in conspiracy

to traffic in cocaine

[534] As noted above, Caines associated with or at least knew all of the alleged co-conspirators.

[535] I have accepted Marche’s testimony that he was part of a group who purchased their

cocaine from Caines, sometimes stored the cocaine on Caines’ instructions for re-distribution to

others in the group, and on occasion acted as couriers of drug proceeds and/or cocaine for Caines.

[536] I have accepted that the term “girls” was used by the alleged co-conspirators to refer to

kilograms of cocaine and the terms “love” and “paper” to refer to money, specifically drug

proceeds or payment for drugs. I have also accepted S/Sgt. Stapleton’s evidence on the cost of

cocaine in Vancouver and Alberta in 2005. The following are some of the intercepted

communications which implicate Caines in the cocaine trafficking conspiracy:

2012 ABQB 521 (CanLII)

Page: 130

Tab 168, Session 1208, Monday, October 31, 2005, 13:48:19. Unknown male, at

an undetermined location, to Caines, at or near Fort McMurray. Caines asked:

“Hey, I was just wonderin’, can you fuckin’, can you get those fuckin’ girls

there?... Can you ah see what you could get ‘em for and give me a shout

back?” The unknown male said that he would check it out that day as he was

supposed to meet with a guy.

Tab 169, Session 1212, Monday, October 31, 2005, 13:52:45. Caines, at or near

Ft. McMurray, to Bird, at an undetermined location. Caines asked: “Any love?”

Bird responded: “Uh, see what I can do today.

Tab 171, Session 1247, Monday, October 31, 2005, 19:00:51. Unknown male at

same phone number as in Tab 168, at undetermined location, to Caines, at or near

Fort McMurray. The unknown male said: “Uh, I just fuckin’ talked to my buddy.

Buddy’s not gonna be back till the ninth. To do that and, on the coast, eh... Yeah,

he won’t be, he won’t be back till the ninth. But I would be able to fuckin’ find

something else up here. It’s gonna be more though, eh?” Caines asked: Yeah, see

what you can get. I’d rather get it there, if, if it’s half decent, I’m just....” The

unknown male said it is going to be: “like twenty-two or something like that for

you, right... ‘Cause bu - like buddy wants to make whatever off of it, and I

wouldn’t mind gettin’ a little cut too, but uh, I’ll uh, I’ll check it out.” Caines

asked: “What about there? What are they there?” The unknown male said he

was paying, for himself, twenty-six. He asked if that was too much for Caines.

Caines responded: “No, no. That’s fine, I’m, I just need them buddy, my guy’s

not around right now, so.” The unknown male asked how many he needed.

Caines answered: “Three of ‘em.”

[I take this call to be a reference back to the call at Tab 168, in which Caines

asked about obtaining “girls,” meaning kilograms of cocaine.]

Tab 178, Session 1301, Tuesday, November 1, 2005, 18:44:41. Caines, at or near

Fort McMurray, to Marche/Weiss, at an undetermined location. Weiss answered

and, after some banter, passed the phone to Marche. Caines asked Marche: “Hey,

uh, what are you doin’ after?” Marche responded: “Uh, uh, comin’ to see you, I

guess.” Caines said: “Right on... I, I need some love.” Marche asked if he needed

to see him tonight. Caines said: “Yeah.” Marche asked if he could give him until

the morning so he could round it up or did he need it tonight. Caines responded:

“Uh, well, tonight. Just get what you can tonight.”

Tab 179, Session 126, Tuesday, November 1, 2005, 18:48:48. Caines, at or near

Fort McMurray, to an unknown male, with a British Columbia area code number at

an undetermined location. Caines asked: “Hey fuck, can you fuckin’, are you

gonna come here?” The unknown male said he was thinking about it, trying, he

2012 ABQB 521 (CanLII)

Page: 131

had not worked in two weeks. Caines asked: “Can you bring those things here.”

The unknown male said he was pretty sure that would not be a problem. Caines

said: “Cool. Bring me fuckin’ five of ‘em... can you do that for me?” The

unknown male said he would get it in the lurch. Caines said: “‘Kay, well when are

you gonna let me know, because I was gonna take off, so.” The unknown male told

him probably later that night. Caines responded: “Okay. Let me know, because

I’ll give you a buck on each one.”

[Given that Caines was attempting to collect money and the other efforts he was

making at the time to obtain cocaine, I interpret this call as Caines asking the

unknown male to bring him five kilograms of cocaine and indicating he would pay

$1,000 per kilogram for the cocaine to be brought to him.]

Tab 214, Session 1564, Friday, November 4, 2005, 17:41:45. Penton, at an

undetermined location, to Caines, at or near Calgary. Penton asked Caines to call

him when he went through the city and they would go talk. Caines inquired why

and Penton said just to talk. Caines asked: “You ready to make love or what?”

Penton responded: “Oh yeah, that too. But, uh, just ah I wanna tell you about a few

things that I hear.”

Tab 224, Session 301, Saturday, November 5, 2005, 02:04. Text from Caines, at or

near Calgary, to phone number registered to Bird, at or near Edmonton: “I need

you to get that paper to my guy before nine in the morning or else ill kick

down on you... His number is 1403[...]9054...All you have is ten” [The number

was one digit off from a number registered to Hoskins.]

Tab 236, Session 399, Monday, November 7, 2005, 12:42:05. Bird, at an

undetermined location, to Caines, at or near Calgary. Bird asked: “So did you make

her, or what?” Caines answered: “Make her, yeah...” Caines asked: “Did you go

get your thing?” Bird said: “No, that’s why, that’s why I’m gettin’ a hold of you.

And I, I got, I’m rallying up everything today, so I’m gonna get it all done, so

tonight I’ll... have fuckin’ everything for you.” Caines instructed him to: “Call

Cards.” Bird asked: “Is that who’s got it?” Caines said: “Yeah.” Bird asked:

“‘Kay, what’s, what’s those last four again? The numbers?” Caines responded:

“6627.” [These were the last four digits of Cardinal’s phone number]

[In view of the context and as Bird was trying to collect money, I interpret this call

as Caines telling Bird to pick up his cocaine from Cardinal.]

Tab 244, Session 1762, Tuesday, November 8, 2005, 14:08:03. Smith, at or near

Edmonton, to Caines, at or near Fort McMurray. Caines asked: “Got some love for

me?” Smith said: “At home, yeah.” Caines asked when he was coming home.

Smith said: “Uh, today.” Caines told him: “Call me when you get home.”

2012 ABQB 521 (CanLII)

Page: 132

Tab 282, Session 404, Wednesday, November 16, 2005, 13:42:34. Caines, at his

home in Fort McMurray, to Marche, at an undetermined location. Caines asked:

“If you have love for me, why(unintelligible)?” Marche said: “Negative. A

couple. That’s it. That’s all I managed to get. That, ah, the last there I don’t know if

the other buddy got...” Caines asked: “Yeah, I know. Do you still have those?...

‘Kay, well bring ‘em back.” Marche said: “Ah, it’s not complete, but it’s

sectioned in - but they’re still, you know what I mean, in one. They’re sectioned in

four, but they’re still in one piece. Each piece is one.” Caines asked: “So what,

you still got a full one?” Marche responded: “Yeah.” Caines asked: “Is that it?”

Marche said: “No, there’s a full one plus.” Caines said: “Well, yeah. Well, it’s all

- it’s no good or what?” Marche said: “Yeah, man.” Caines told him: “Alright.

Well, bring it all back.” Marche asked: “Okay. You don’t need that right away, do

you?” Caines responded: “Well yeah... well, not right away, before five.” Marche

told him he just needed a couple of hours of sleep.

Tab 289, Session 420, Wednesday, November 16, 2005, 16:52:46. Caines, at his

home in Fort McMurray, to Marche, at or near Fort McMurray. Caines said:

“What are you doin’?... Fuckin’... I need - uh, fuck, you don’t even

understand.’ Marche told him he would be there and asked how long. Caines said:

“Five minutes?” Marche asked: “Give me ten.” Caines said: “Alright. Hey well

that bad too, eh... Bring the bad, too.” Marche responded: “Yeah, that was the

plan. Caines asked: “Have you got any love?” Marche responded: “Like I said, I

only had two bills.” Caines said: “Holy fuck. Alright.”

Tab 321, Session 216, Tuesday, November 22, 2005, 14:26:53. Caines, at an

undetermined location, to Cardinal, at an undetermined location. Cardinal said he

was just “goin’ over to grab that.” Caines said: “Are you gonna stop up?”

Cardinal agreed to meet Caines on his way out of town. Caines asked: “Hey! Did,

did you find any love?” Cardinal told him that is what he had been waiting for.

He said he hoped he had it when he saw Caines. Caines told him: “‘Okay, well,

fuckin’ get on it. Dig deep... Dig, dig... Kay, well, go get on those guys right

now and meet me somewhere in half an hour.” Cardinal said he was going to

“grab you your bud right now anyways.”

[537] In my view, these calls establish that Caines was arranging for the supply of kilograms of

cocaine and was looking to Bird, Marche, Penton, Smith and Cardinal for payment. While

Cardinal mentioned grabbing Caines his “bud” in the call at Tab 321, Caines also was urging him

to collect some “love”; that is, money. According to Marche, Caines asked him on the day of this

call to drive to Calgary to pick up a shipment of cocaine. He and Weiss drove there the next day

and brought with them a bag of cash they had obtained from Caines. I infer that Caines’

discussion with Cardinal about digging deep for some “love” was in reference to drug proceeds as

part payment of the cocaine shipment. The call at Tab 236 also corroborates Marche’s evidence

2012 ABQB 521 (CanLII)

Page: 133

that Caines would sometimes instruct one of the group to pick up their cocaine from another one

of the group of Caines’ distributors.

[538] On December 14, 2005, the RCMP searched Caines’ Fort McMurray home. Among other

items found, they seized a Royal Sovereign money counter. The police discovered another money

counter in the living room area of the fifth wheel trailer when they conducted the search of the

campground being used by Caines on May 31, 2006. The search of his Calgary residence on May

31, 2006 disclosed a cash counting machine box in the master bedroom. The money counters are

suggestive of someone who must count significant quantities of cash and are consistent with a

cocaine supplier counting drug proceeds.

[539] Also found in Caines’ Calgary residence was a plastic baggie with writing on it located

inside the cash counting machine box. The writing stated:

Joey $400 700

Ow** $ 350

[540] This is consistent with what Marche referred to as a tick or score sheet.

[541] During the May 31, 2006 search of Caines’ Fort McMurray home, a paper was found in

the master bedroom which stated “MK; Josh 784; Chad [...] 7000; Darren.” Again, this is

consistent with being a tick or score sheet. The search also uncovered a piece of paper in a kitchen

cabinet with a list of initials or names corresponding to numbers. The list included MK, Card,

Jody and others. This too is consistent with being a “tick sheet.”

[542] When Caines was stopped by the police while driving his vehicle near Red Deer on

November 10, 2005, a sheet of paper was seized. Marche identified it as a “tick sheet.” The

initials MK on it referred to him. He testified that, as noted on the tick sheet, he owed Caines

$67,115. The paper also listed B - 42 72; Card - 39 101, and Jody - 30.

[543] The score sheets also are consistent with a cocaine supplier keeping track of money owed

to him.

[544] On the basis of Marche’s evidence, the evidence of Weiss, and certain intercepted

communications, considered in context with surveillance evidence and search results, I am

satisfied beyond a reasonable doubt that Caines was a member of and at the centre of the cocaine

trafficking conspiracy.

2. McDonald

[545] McDonald knew or had some association with Flight, Marche, Caines, Alcantara,

Knapczyk, King and Mannarino. Marche testified that Caines and McDonald were good friends.

2012 ABQB 521 (CanLII)

Page: 134

[546] I accept Marche’s testimony that he considered himself to be part of a group of drug

dealers in Fort McMurray, which included McDonald, who were all buying cocaine from Caines,

on occasion storing it for him and then re-distributing it to other members of the group for sale.

The purpose of the group was to distribute cocaine for profit.

[547] Further, I accept Marche’s evidence that on September 15, 2005, Caines directed him to

pick up his kilogram of cocaine from McDonald. Marche supplied information to the police which

led to the search of McDonald’s residence that day and the seizure of a significant amount of

cocaine and cash, cocaine packaging materials, a digital scale, multiple cell phones, score sheets

and a loaded handgun. All of these are consistent with McDonald being a high level cocaine

trafficker.

[548] I agree with the Crown that the McDonald incident provides a partial snapshot of the

conspiracy. Caines supplied the cocaine to Marche using McDonald to distribute it on his behalf.

The inference to be drawn is that McDonald was involved with Caines and Marche in an

agreement to distribute cocaine in Fort McMurray.

[549] I am satisfied on a balance of probabilities that McDonald was part of the conspiracy.

3. Cardinal

[550] Evidence was presented which establishes that Cardinal knew Caines, Marche and

probably Bird.

[551] I have accepted Marche’s evidence that he considered himself to be part of a group of drug

dealers in Fort McMurray, comprised of himself, McDonald, Cal (Gregoire), Geebs, and Cardinal,

who obtained cocaine at the multi-kilogram level from Caines and, on his instructions, co-

operated in distributing it to one another for further distribution to dealers and end users.

[552] In the text messages at Tab 129, Cardinal appeared to ask permission from Caines to put

“Baldy” back to work. Sergeant Anderson testified that Sekulich was known as “Baldy” in Fort

McMurray. It is possible that the “Baldy” referred to by Cardinal was Sekulich. Even if it was not,

it is reasonable to infer Cardinal was speaking about a drug dealer. Caines indicated in the text

that he thought “Baldy” was a problem. Cardinal advised: “He a good soldier I gonna get him to

get rid of sum of those cd boys there starting shit.” Caines ordered Cardinal to keep an eye on

him, to which Cardinal responded: “Yes sir i will.”

[553] I have accepted that the alleged co-conspirators used the term “love” to mean money. In

the intercepted communication at Tab 321, Cardinal clearly understood Caines’ reference to

“love” and said that was what he was waiting for and he hoped he had some when he saw Caines.

[554] As a result of the November 10, 2005 vehicle stop of Caines, the police found what

Marche identified as a tick sheet that recorded amounts owing to Caines. The sheet included the

2012 ABQB 521 (CanLII)

Page: 135

initials MK and the amount 67,115. It also included “Card - 39 101," which I take to mean that

Cardinal owed Caines $39,101. During the May 31, 2006 search of Caines’ Fort McMurray home,

the police found a piece of paper with a list of initials and names with corresponding numbers.

This list, which also is consistent with being a tick sheet, included MK (Marche), GB (Bird), Card

(Cardinal), Jody (Smith) and others.

[555] I have accepted Marche’s testimony that on January 17, 2006, he went to Cardinal’s

residence in Fort McMurray at Caines’ request to pick up cocaine. Cardinal, who was cooking

crack cocaine, handed him a kilogram. Marche spotted more cocaine on Cardinal’s kitchen

counter.

[556] The police confirmed that Marche gave them information which resulted in them

conducting a search of Cardinal’s residence on January 17, 2006. It is clear from seizures made

during that search, including cocaine, a significant amount of money, multiple cell phones, a cash

counter and what may be a tick sheet, that Cardinal was trafficking in cocaine.

[557] I am satisfied on a balance of probabilities that he was doing so as a member of the

conspiracy.

4. Geebs (Bird)

[558] I have accepted Marche’s evidence that he considered himself to be part of a group of drug

dealers in Fort McMurray who bought cocaine from Caines and that he, McDonald, Cardinal,

“Geebs” and Gregoire were the other members of the group (in addition to Caines).

[559] In the calls at Tabs 169 and 236, Caines spoke with someone who was using a cell phone

registered to Bird. Marche identified the person in the call at Tab 236 as “Geebs.” The same

person was speaking in the call at Tab 169. I am satisfied that the person known to Marche as

“Geebs” likely was Gordon Bird, and that Bird also was known as “GB” and was listed in Weiss’

phone list as “J.B.”

[560] In the call at Tab 169, Caines asked Geebs if he had any love. Geebs said: “Uh, see what I

can do today. Caines told Geebs to give him a shout when he got home. Geebs replied: “Yeah. I

just fuckin’. If everyone who fuckin’ supposed to come see me today, so I dunno, fuck it.

One guy I just talked to recently forgot it and he’s goin’ to get it and shit, so. But I should

have something by fuckin’ six or so.”

[561] In the call at Tab 236, Geebs asked Caines: “So did you make her, or what?” Caines

answered that he had. He asked Geebs if he had gotten his “thing.” Geebs answered: “No, that’s

why, that’s why I’m gettin’ a hold of you. And I, I got, I’m rallying up everything today, so

I’m gonna get it all done, so tonight I’ll... have fuckin’ everything for you.” Caines said: “Call

Cards.” Geebs asked: “Is that who’s got it?” Caines says: “Yeah.” Geebs inquired: “‘Kay,

what’s, what’s those last four again? The numbers?” Caines responded: “6627.”

2012 ABQB 521 (CanLII)

Page: 136

[562] In the first call, I infer that Caines was attempting to collect money from Bird, who had to

collect it from others. In the second call, Bird was indicating he had not picked up his cocaine and

that he was collecting the money for it that day. He knew who Caines meant by “Cards.” Bird only

asked for the last four digits for Card’s phone number. Caines gave him the phone number used

by Cardinal. Bird, Cardinal and Marche all had phones with the first three digits “[...].”

[563] When Caines’ Fort McMurray house was searched, a piece of paper was found in a kitchen

cabinet with a list of initials or names corresponding to numbers. The list included Marche, GB

(Geebs - Gord Bird), CAR (Cardinal), and Jody (Smith). As I have noted above, this list is

consistent with being a tick or score sheet.

[564] I am satisfied on a balance of probabilities that the person known as Geebs, likely Bird,

was a member of the conspiracy.

5. Gregoire

[565] Evidence was presented linking Gregoire with Caines and Alcantara. His number was in

the contact list for the phone registered in Weiss’ name but also used by Marche.

[566] I have accepted Marche’s evidence that he considered himself to be part of a group of

dealers who were purchasing cocaine from Caines and distributing it in Fort McMurray and that

he, McDonald, Cardinal, “Geebs” and Gregoire were the other regular members of the group (in

addition to Caines).

[567] In a call at Tab 255, made on November 10, 2005, Caines told Gregoire his measurements

were off by two inches. Gregoire said no, “she was bang on, buddy.” Caines said it was just 18

inches there. Gregoire disagreed, saying he had counted over and over. He said he had two piles,

one of thirty-two and one of twenty-eight. Caines told him that there were two not there.

Gregoire said: “... there’s no way. I’m, I’m not, I’m never off. Have... I ever been off?...

Never, Like, I’ve never in my life been off.” He suggested that they split the difference. Caines

said that even without the two, Gregoire was still six shy. Gregoire denied this. Caines said they

were thirty-three a piece. Gregoire responded: “No way... you gotta go... better... She’s gotta be

at least twos... three twos.” Caines told him three threes. Gregoire said three twos was good

and fair.

[568] I interpret this call to mean that Gregoire had made a payment for cocaine to Caines, who

was disputing that the correct amount had been paid. Caines said that “they” were thirty-three a

piece. Gregoire thought it should be thirty-two. I take the reference to “they” to mean a kilogram

of cocaine given S/Sgt. Stapleton’s evidence that in 2005, a kilogram of cocaine went for $32,000

to $34,000.

2012 ABQB 521 (CanLII)

Page: 137

[569] Caines was counting drug proceeds at the time of the call on November 10, 2005. Later

that day, his vehicle was stopped in the vicinity of Red Deer. The police searched the vehicle and

seized a knapsack containing $95,620.00 in Canadian currency, bundled in various amounts. The

next day, Gregoire called Caines (Tab 263) and said he had heard something and that is why he

was calling. He asked: “... what’s the fuckin’ story?” He then asked Caines: What the fuck

happens now?” Caines indicated he did not know but would be there in a couple of days.

Gregoire commented: “Okay. So, there’s nothing to, nothing to fuckin’ go for now then?”

[570] On November 12, 2005, Caines and Gregoire spoke again (Tab 264). Caines asked

Gregoire not to tell anyone about “that,” by which I take him to mean the vehicle stop and seizure.

Caines said he did not get into any trouble so not to worry about it. Gregoire responded: “I’m just

- I’ve been stressing myself. That’s why I wanted you to call me.”

[571] In my view, these calls suggest that the Caines’ seizure affected Gregoire.

[572] On December 1, 2005, Caines asked Gregoire to come by to give him a big hug. Gregoire

said he did not want to go by there, but Caines said it was just to give him a hug.

[573] In a call at Tab 364 on December 2, 2005, Gregoire asked Caines: “You got that?” Caines

said that he had. Gregoire said” “Sixty-two.” Caines commented that Gregoire was wrong last

time. Gregoire denied that he was under. Caines said: “Just remember what you thought you were

out, what you still had out... You were off.” Gregoire said he did not think so. Caines said it was

not a big deal.

[574] I take these conversations to have been about a drug payment. “A big hug” is a form of

love and in the Caines’ group, the term “love” was used to mean money.

[575] I am satisfied on a balance of probabilities that Gregoire was a member of the conspiracy.

6. Flight

[576] Flight and Caines Sr. were friends. Sergeant Anderson testified that Flight’s son Weston

Donald Flight lived in Caines’ basement. Surveillance evidence and intercepted communications

establish that Flight had some connection with Alcantara, Van Den Hurk, Marche, McDonald and

Penton, in addition to Caines and Caines Sr.

[577] Marche testified that occasionally he went over to Caines’ house when Caines was not

there and it would be Flight, nicknamed the “Butler” who would give him the cocaine. He also

testified that there were times when he met Flight at Caines’ home and, on Caines’ instructions,

gave Flight cash to be given to Caines as payment for the cocaine received by Marche.

[578] In the discussion on corroboration of Marche’s evidence relating to Flight, I reviewed

much of the direct evidence which implicates Flight in the conspiracy, including the October 19,

2012 ABQB 521 (CanLII)

Page: 138

2005 intercepted communications at Tabs 92, 94, 95 and 96, in which Flight was gathering drug

proceeds for Caines, and surveillance evidence of Flight that day and on October 20, 2005 which

suggests that he transported the drug proceeds first to Edmonton and then to Caines’ Calgary

residence. In the call at Tab 99 on October 20th, Flight asked Caines Sr. to count the money for

him as he thought the amount was wrong. In the call at Tab 100 on that date, he advised “Paul”

that he had a package - an envelope - to take south. In the call at Tab 108, Flight confirmed he

gave “him,” by whom I take him to mean Caines, $24,000. In that same call, he spoke of having a

beretta. Owning such a weapon would be consistent with someone who transports large amounts

of cash and cocaine.

[579] In the discussion of the evidence corroborating Marche’s testimony, I also reviewed the

intercepted communications (Tabs 132, 133, 136 to 138) indicating that Flight again collected

drug proceeds for Caines on October 25, 2005. In addition, I outlined the surveillance evidence of

his trip from Caines’ Fort McMurray residence to Edmonton that day, his trip from Edmonton to

Caines’ Calgary residence and then on to Pitt Meadows the next day, his meeting with someone in

a car leased to Van Den Hurk, and his drive back to Alberta.

[580] On the morning of October 27, 2005, he was stopped by the RCMP near Banff. The police

found approximately four kilograms of cocaine and six pounds of marijuana in his vehicle. The

drugs, cell phones and the currency found in the glove box of his car are consistent with Flight

being a courier of cocaine and money.

[581] The Crown argues that this seizure, the intercepted communications and the surveillance

of Flight in October 2005, detailed above, support the conclusion that he was involved in the

cocaine trafficking conspiracy with Caines and acted as a money collector and courier of cocaine

and money. I agree. I find on a balance of probabilities that he was a member of the conspiracy.

7. Hoskins

[582] Evidence was presented establishing that Hoskins associated with Caines and Marche.

[583] I have accepted Marche’s evidence that Hoskins was one of the people who transported

cocaine from Calgary for Caines. I have also accepted his evidence relating to the incident where

he drove Hoskins to Calgary with drug proceeds from Caines. That evidence was in large part

confirmed by Weiss, whose evidence about the trip down to Calgary with Hoskins I also have

accepted.

[584] The following intercepted communications corroborate that Hoskins dealt with drug

proceeds for Caines:

Tab 225, Saturday, November 5, 2005, 2:43 a.m., text from Hoskins at an

undetermined location to Caines at or near Calgary: “34 more in morning.”

2012 ABQB 521 (CanLII)

Page: 139

Tab 225, Saturday, November 5, 2005, 9:52 a.m., text from Hoskins at an

undetermined location to Caines at or near Calgary: “44 total.”

Tab 225, Saturday, November 5, 2005, 10:37 a.m., text from Hoskins at an

undetermined location to Caines at or near Calgary: “It was 10 cards 24 mk 10

jerome.”

[585] I interpret these as reports from Hoskins on the amount which he had collected for Caines.

[586] In the call at Tab 257, made on November 10, 2005, Hoskins sought to be re-supplied with

cocaine by Caines, asking: “... Do you mind if I stop by later and uh, reload.”

[587] In the December 1, 2005, 3:10 p.m., call at Tab 356, Hoskins asked for Caines’ help. He

asked if there was anything Caines could do for him down there. He said he was in bad

shape and needed to be in good shape. I take that call to mean that Hoskins was looking for

more cocaine. This is confirmed by the call at Tab 358, made eight minutes later, in which Caines

asked if Hoskins had the “files for that” and Hoskins said that he could. I interpret the term “files”

in this call as being used, like the term “paper,” to mean money. Hoskins called Caines (Tab 359)

a minute later and said: “Yes. Yes, I do.”

[588] I am satisfied on a balance of probabilities that Hoskins was a member of the conspiracy.

8. Caines Sr.

[589] Caines Sr. is Caines’ father and was a good friend of Flight’s. He knew Alcantara. Caines

Sr. owned the Corvette used by Caines and may have acted as Caines’ nominee in that regard.

[590] Wiretap (Tabs 133, 136 and 137) evidence indicates that on October 25, 2005, Caines Sr.

agreed to and attempted to collect drug proceeds from Penton for Flight, who in turn was trying to

collect money for Caines’ next cocaine shipment.

[591] In the call at Tab 137, Caines Sr. told Flight he called “our man” and “he hasn’t got it,

his, he’s leavin’ the Mac... Leaving the Mac. I guess he hasn’t, he. Somebody owed him up

there. So he went out until about two-thirty this morn, morn, morning...Why don’t you give

him a quick call, and see what, see what the scoop is?” Flight asked for the number. The

number Caines Sr. gave him was the phone number for Penton.

[592] In a call a few minutes later (Tab 138), Flight, who was southbound between Fort

McMurray and Edmonton, called Caines Sr. , who was at or near Edmonton, and reported he had

straightened them out: “He’s gonna meet me there tomorrow morning at six o’clock... So what I

can do. I can take three out of what I got there and, and leave, leave and you go get it my place,

how’s that?...” Surveillance established that Flight’s place was in Edmonton.

2012 ABQB 521 (CanLII)

Page: 140

[593] In a call the next day (Tab 140), Caines Sr. asked Flight, who was at or near Calgary, if

everything worked out for him that morning. Flight indicated he tried to phone “buddy” but there

was no answer. Caines Sr. asked: “Yeah. So are you short?” Flight said: “Well, I don’t know

what the other fellow wants, so you, so he said to come and see him and I don’t know if he’s

gonna take some of that too ‘cause if he do, is not even goin’, I’m not even goin’... Not worth it.”

He complained about wearing himself out for nothing, “it-it’s a long beat. It’s... long run... And

never mind the stress with it all.” He said he left Caines Sr.’s “stuff in the... microwave.” Caines

Sr. said: “Yeah. Have the other fellow deal with it, that’s all.”

[594] In the call at Tab 141, made later that day, Caines Sr., who was at or near his residence in

Edmonton, advised Flight, who was between Rockyview and Scott Lake Hill, Alberta: “Yeah. I

was, I, I was there. Picked it up, ah put the broom back where it was.” Caines Sr. asked if

Flight was down “there,” presumably meaning Calgary. Flight responded no, that he had been.

Caines Sr. asked if he got any “sets.” Caines Sr. said he was just pulling in to his driveway

and had to put some money into the bank because it was getting close to Monday and the

landlord got after him yesterday - he wanted to know how much money he was going to be able to

give him. Flight suggested: “... you should get some more out of other fellow now when he comes

up you know.” Caines said that he was going to try. Flight indicated : “... because he told me to

give you four.... But then I wouldn’t had enough to get...”

[595] In my view, these intercepted communications indicate that Caines Sr. was supposed to

take $4,000.00 from the drug proceeds collected by Flight on October 25, but received somewhat

less as Penton had not paid up.

[596] Caines Sr. clearly understood the coded language for “money” used by Flight.

[597] I am satisfied on a balance of probabilities that he was a member of this conspiracy,

although he appears to have played a peripheral role in it.

9. Penton

[598] Communications were intercepted between Penton and Caines and between Penton and

Flight which implicate Penton in the conspiracy. In the call at Tab 93, made on October 19, 2005,

Flight asked Penton if he had “... a little bit of love for me for tomorrow.” Penton asked how

much he wanted. Penton indicated it was a ten hour drive. In response to Flight’s comment that it

was cheaper to fly, Penton said: “...you can’t go through the airport with that.”

[599] In the call at Tab 128, on October 25, 2005, Penton told Flight: “I called him last night

there at around twenty-four, twenty-five. So, I’m waiting to hear from him today and as

soon as the full - your shares there, they’re coming.... So, uh, tonight I’ll give you a shout...

Or this evening... They’re getting close, they’re getting close... do you want - I can come and

leave right now, regardless, whatever they got. Or just hang on till everything’s there, right?

You know what I mean (Chuckle)... So I don’t have to do two trips. (Chuckle)... Less, less...

2012 ABQB 521 (CanLII)

Page: 141

shit for me, right?... It pays him five hundred bucks and then, fuckin’, that’s tw... twice is a

thousand...

[600] In a call at Tab 144 the next day, Penton reported to Caines that he was close to getting

“that” for him: “ Nelson just got here late this morning. I got - he brought eighteen with him.”

Caines told him to meet him at the Sawmill in ten minutes. Penton said he was going to double

count it first.

[601] In my view, these calls were about drug proceeds to be paid by Penton to Caines, whether

directly or through Flight.

[602] In the calls at Tabs 180, 195 and 214, Penton complained to Caines that his dealers were

getting their drugs elsewhere. In the call at Tab 180, made on November 1, 2005, he said: “Eh,

they’re fuckin’ around on me. They gotta be getting it elsewhere, ‘cause, like, they sold, like

you know, like last week twenty, right.” In the November 3, 2005 call at Tab 195, Penton

advised: “... I heard some shit. And he’s the - this Robert guy that used to work for Mobily, I

guess he still did offer in it, uh, one of my guys for ten fifty... And I heard Mobily is getting

them for twenty-seven.” Caines responded, “Yeah. Well, go knock him out.... Yeah. Well, I’m

gonna meet up with him next week and knock him out anyway.” Penton offered to go with him

and said he would try to find a couple of other people too.

[603] In the call at Tab 214, made the next day, Penton asked Caines to call him when he went

through the city. Caines asked why - was he ready to make love. Penton responded: “Oh yeah,

that too. But, uh, just ah I wanna tell you about a few things that I hear.” He continued:

“That little Matty... fucker burned me hard, man... Jamie Matty. Fuck. Oh man, he roasted

me. He’s phone, says to call fuckin’ this other dudes now and he... won’t answer my calls.

He says anybody calls on restricted number, he’s a dick. He’s talking to me, basically. So,

fuckin’. And Travis is probably gonna protect him too. That’s the worst thing. I’m gonna go

beat up him and Travis is gonna come after me too.” Caines said he wanted his brother Vince.

Penton responded: “You bait Travis. Vince will come to you. So do you know what... that’s

perfect. I’ll go up, I’ll kick the shit out of this little fucker, I’ll bait Travis, and then he’ll

come after me. And then he’ll probably bring Vince and then I’ll just, uh, go get - pick up

you Sunday.” Caines told him that is what he wanted. Penton agreed, saying: “Okay. That’s

what we’ll do Sunday... And Mobes, I want to talk to talk to you about him too... And I’m

gonna have a few more names.”

[604] In the intercepted communication at Tab 347, Caines and Penton discussed a price

increase for what I infer was cocaine. Penton agreed to take just one kilogram.

[605] I am satisfied on a balance of probabilities that Penton was a member of the conspiracy.

2012 ABQB 521 (CanLII)

Page: 142

10. Ricco King

[606] There was evidence presented at trial indicating that Ricco King had some association

with Caines, Flight, Alcantara, Farhan and Kamran Sattar, McDonald and Mannarino.

[607] Approximately five kilograms of cocaine were seized on December 1, 2005 from a

property in Fort McMurray owned by King. This was a rental property. On November 28, 2005,

King contacted the upstairs tenants for a key to the building so that his father could obtain an

estimate of repairs which the apartment needed. The key appears to have been left in the mailbox

for various periods between the evening of November 28 and the early morning of December 1,

2005. There is no evidence of who left the cocaine in the basement suite and I make no inference

that the cocaine belonged to King.

[608] Intercepted communications and surveillance reports, some of them outlined in the

discussion of whether Mannarino was a member of the HAMC, suggest that King played a role as

something of a middleman between Caines and the HAMC and between Caines and a cocaine

supplier, possibly one or both Sattar brothers. King met with Alcantara, McDonald, Mannarino,

Keef and Vos early in the afternoon on November 3, 2005. King spoke with Caines later that day

(Tab 197), mentioning that he had had a big meeting with a bunch of patches and Caines’

name had came up. He told Caines everything was going to be fine because “explanations

are made again. But, Big R, Little R in E Town needs you to phone him pretty quick.” When

Caines asked why, King said: “Ah fuck, buddy. You have, people get excited all the time,

right?” King told Caines to get a hold of his buddy who’s waiting to hear from Caines.

[609] Earlier in the day, Caines had left a voice message (Tab 194) on a phone used by Farhan

Sattar asking that he call him as soon as possible. In the call at Tab 197, made at 5:00 p.m., Caines

asked: “... where are these guy at?” Once he clarified that Caines was not talking about the

“patches,”, King told him to: “... just get a hold of my buddy. And like I told you, he’s waiting

to hear from you.” Caines asked King to call “him” and tell him to go see Caines as soon as

possible as he had been waiting for “him” all day. King agreed to do so. Caines later called Farhan

Sattar and arranged a meeting.

[610] In a call the next day (Tab 213), King advised Caine: “I got it.” I infer that what King

meant was that he had obtained cocaine for Caines. Caines was looking for a supply of cocaine at

the time. About three hours after speaking with King, Caines texted (Tab 215) Cardinal: “Tonight

we eat.” At 10:50 that night, Caines told Van Den Hurk (Tab 217) that he had “just got some...

[for] Five.”

[611] Marche testified that he travelled with Weiss to Calgary on November 23, 2005 at Caines’

request to obtain a quantity of cocaine and that Caines gave him a bag of money to make the

purchase. Intercepted communications and surveillance suggest that King was responsible for

having the money picked up and arranging for Marche to be supplied with cocaine on behalf of

Caines.

2012 ABQB 521 (CanLII)

Page: 143

[612] King spoke with Caines on November 22, 2005 (Tab 326), advising Caines that he had

not got a hold of “him” yet but “he’s supposed to swing by my house later on. Around 7.”

Caines asked what happened to “him.” King said he would phone “him.

[613] At 9:45 p.m. that evening, a male fitting the description of Farhan Sattar arrived at King’s

residence.

[614] In the call at Tab 331 at 11:48 a.m. on November 23, 2005, King asked if Caines had

already swung by there the night before. Caines said he had but "numnuts wouldn't come

over." King asked why someone had not gone to his place. Caines said because he had not

gotten there until late. King asked: “Did you leave anything for him?” Caines responded: "Yeah.

He's sitting there still." King asked: "... that would be where?" Caines said: "Where fuckin', I lay

my head."

[615] Marche testified that he arrived at Caines’ Calgary residence earlier that morning and his

vehicle was observed there at 12:45 p.m. At 1:43 p.m. that day, the Hummer registered to Ricco

King’s father was parked in front of Caines’ Calgary residence. It left three minutes later.

[616] Shortly after speaking with Marche at 3:51 p.m. and learning that no one had come with

the cocaine, Caines called King (Tab 333) and asked: "What's going on with him?" King said: “...

apparently about ah ten minutes.”

[617] At 8:14 p.m. that night, Caines called King (Tab 335) and asked: “What’s going on with

that?” King said he had no idea - he was in Banff. King told Caines: “... he went to see your...

buddy and... he was gonna show them the ah apartment building and he's taken, I guess,

he's taken ah, he's got some other friends and their lookin' at taking three buildings right

now.” King told Caines: "But, I, he did go over and, and take your friend to look at that

building and there's three units that are, that are basically, that are basically he liked. So his

buddies are gonna, I guess they're taking all three.” Caines asked: “... what about these fuckin’

things? They’re not, they’re, they’re gonna get fixed or? King responded: "Well yeah, I guess

the, the possession date. The people are ah, the people are cleaning them tonight or

whatever and the possession date. This guy is just going and ah tomorrow I guess. Monday."

[618] Based on the evidence directly admissible against King, I am satisfied on a balance of

probabilities that he was a member of the conspiracy during the time period in question, his role

being to facilitate the supply of cocaine to the Caines organization.

11. The Sattars

[619] The evidence establishes that Caines knew Farhan and Kamran Sattar and that both Sattar

brothers knew King.

2012 ABQB 521 (CanLII)

Page: 144

[620] There was surveillance evidence indicating that a man resembling Farhan Sattar, driving a

vehicle registered to someone with the last name Sattar, went to King’s residence twice on

November 22, 2005 and possibly picked King up and drove him there. That was the night before

Marche and Weiss arrived in Calgary with money for the purchase of cocaine for Caines. In my

view, that is insufficient to establish that Farhan Sattar supplied or arranged for the supply of the

cocaine given to Marche, or that he was a member of the Caines conspiracy.

[621] I agree with the Crown that the intercepted communications at Tabs 384 to 386, 396, 398,

399 and 402 suggest that Kamran Sattar supplied cocaine to Caines, via a courier, on December

10, 2005 and subsequently demanded payment for it. The references to “eat” were a play on

“food,” which the alleged co-conspirators used as a term for cocaine and the reference to “files”

meant payment for the cocaine.

[622] In the text messages on December 10, 2005 at Tab 384, Kamran asked Caines: “You up

place sold out have a bite to eat.” In the call at Tab 385, Kamran asked: “Are you gonna go

meet buddy?”“ He said: “Buddy is there right now. He wants some breakfast.” When Caines

indicated it was not him - it was somebody else, Kamran told him: “... we gotta go take care of

that right now.” He subsequently texted: “Big bald <0x0A> guy red hurry,” and later: “Big

guy bald <0x0A> eat.”

[623] On December 12, 2005, Kamran Sattar asked Caines in a text message (Tab 396): “ Did u

get that thing back.” Kamran then texted: “Now what I need some files for payment whats

gonna happen now.” Caines wrote: “You need to find lee for that.” Sattar texted: “Anything you

have including files is ours and don’t change your story and we will take of everything else

and don’t say its buddy that you said it was say its ours.”

[624] Caines called Kamran the next day (Tab 398) and the two had a guarded conversation.

Kamran said: “We’re - take care of that thing.” When Caines asked if he hadn’t gotten rid of it,

Kamran answered: “Well buddy’s gonna have a talk right... So we’ll see what we can do

right... just say it’s uh, you know... ‘Kay so we’re just gonna... that, that was last thing that

I’m - when we left it at for that. But um as for everything else, you gonna be done by Friday

or what?”

[625] Later that day, in a series of text messages (Tab 399), Kamran wrote: “That payment for

junior guys are pissed need payment right away.” Caines again referred to Lee, writing: “Call

lee he has it.” Kamran responded: “I thought you had the money for his payment already.”

Caines wrote: “I would of if lee didn’t steal it.” Sattar texted: “U were supposed to bring money

for his payment that day.”

[626] On December 14, 2005, Kamran again texted Caines (Tab 402): “r the files here yet.”

[627] I am satisfied on a balance of probabilities that Kamran Sattar was a member of the

conspiracy.

2012 ABQB 521 (CanLII)

Page: 145

12. Van Den Hurk

[628] Evidence was presented about Van Den Hurk’s association with Caines.

[629] The police observed Flight on October 26, 2005 following a truck registered to Van Den

Hurk to a residence in Pitt Meadows, British Columbia and less than an hour later placing a black

duffle bag and plastic bag in the trunk of his own vehicle. Flight was stopped by the police the

next day and his vehicle searched. Approximately four kilograms of cocaine was found in a plastic

bag in the trunk of his car and marijuana was found in a black duffle bag, also located in the trunk.

[630] Phone calls at Tabs 174, 181, 202 and 217 are referred to above under the section on

corroborating evidence of Marche’s testimony, in particular his evidence that Caines’ distributors

expected cocaine but they had to wait for more than a week after the Flight seizure. Those calls

indicate that Van Den Hurk supplied Caines with cocaine.

[631] The seizure of a significant amount of cash and multiple cell phones from Van Den Hurk

on November 15, 2005, after he was reported shot, is consistent with someone involved in the

drug trade.

[632] In my view, while there is evidence Van Den Hurk was involved in trafficking cocaine

and, indeed, may have supplied cocaine to Caines via Flight, it is insufficient to find he was

probably a member of the conspiracy.

13. Alcantara and Knapczyk

(a) Crown argument

[633] The Crown argues that Alcantara and Knapczyk entered into an exclusivity agreement

with Caines, promising his cocaine trafficking operation the exclusive right to traffic cocaine in a

geographical area within Fort McMurray, an exclusivity agreement originally with the Nomads

but taken over by Alcantara and Knapczyk about the end of August 2005. The Crown says that the

evidence of this is found in the testimony of Walker and Marche, intercepted private

communications and surveillance, coupled with the expert opinion of Mr. Lemieux.

(b) Alcantara’s argument

[634] Although Alcantara concedes there is sufficient evidence before the Court to establish that

Caines was engaged in the drug business in Fort McMurray during the relevant period of July 1,

2005 to March 31, 2006, he argues that the Crown has failed to prove that an agreement was

entered into between Caines, Knapczyk and himself to traffic in cocaine.

2012 ABQB 521 (CanLII)

Page: 146

[635] Alcantara says that based on the Crown’s theory, Caines would have paid between half a

million to one and one quarter million dollars to him and Knapczyk over the period in issue and

asks, “Where is the money?” He contends there is no evidence of the money or how Caines got

the funds to them on a weekly basis.

[636] Both Alcantara and Knapczyk argue that statements made by alleged co-conspirators prior

to each of them allegedly entering the conspiracy in August 2005 cannot be admitted under the co-

conspirator’s exception to the hearsay rule. This would apply to Caines’ statements to Walker and

Marche. For reasons adverted to below, I agree.

[637] Knapczyk asserts that there is a lack of evidence with respect to any agreement and, in

particular, his participation in an agreement to traffic cocaine in Fort McMurray during the

relevant time period.

[638] Knapczyk contends that not only is there no direct evidence of any involvement on his part

in a so-called exclusivity agreement with the Caines group or cocaine trafficking by that group, a

strong adverse inference should be applied against the Crown given its failure to call:

C Caines, Caines Sr., McDonald, Cardinal, Bird, Gregoire, Ricco and Melissa

King, Pam Peters, the Sattar brothers, Charles Flight or Mark Hoskins;

C anyone impacted by the exclusivity agreement (i.e. Sekulich);

C evidence of criminal activity associated with enforcement of an exclusivity

agreement;

C financial transactions involving Knapczyk, Knapczyk being in possession

of money or property alleged to be proceeds of crime, a courier transporting

or transferring money or proceeds to Knapczyk;

C alleged members of the HAMC alleged to have been involved; i.e.

LePoidvin or Mannarino

(d) Marche’s evidence

[639] Marche gave extensive evidence about Caines’ cocaine trafficking conspiracy. Certain

aspects of Marche’s evidence are admissible and relevant context in the inquiry at step two as to

whether Alcantara and Knapczyk were probably members of the conspiracy. The pertinent aspects

of Marche’s evidence on this point include the following:

2012 ABQB 521 (CanLII)

Page: 147

(a) There was a thriving drug trafficking operation in Fort McMurray with

Caines at its head, and at least five people, including McDonald, Cardinal,

Marche, Geebs (Bird) and Gregoire, purchasing at the kilogram level from

Caines and distributing the drugs to street level dealers. Others, such as

Smith, Chad and Cliff, joined the group and then left.

(b) Caines arranged for the supply of the cocaine.

other members of their group, including from Sekulich and Cliff.

[640] There is nothing in the evidence of Marche to link Alcantara and Knapczyk to the Caines

conspiracy so as to establish their membership in it.

(e) Walker evidence

[641] As previously noted, I accept Walker’s evidence that in May or June of 2005, Caines came

into his bar accompanied by several men. Walker testified that Caines introduced the men as his

“partners.” This statement is hearsay and is inadmissible against Alcantara and Knapczyk at this

stage of the analysis. Even at step three of the analysis, it is inadmissible against them under the

co-conspirator’s exception to the hearsay rule because it was made in the summer of 2005 and the

Accused are not alleged to have entered the conspiracy until August 30, 2005. The co-

conspirator’s exception to the hearsay rule is based on agency. Statements made prior to entry into

a conspiracy logically would not be made as an agent.

[642] Walker observed that two of the men with Caines wore Hells Angels vests. He testified

that the vests had no sleeves, they were black with red and white writing, they said Hells Angels

and Alberta on them, and had a logo of a wing and something inside the wing like a face. He said

he had seen Hells Angels vests before on the news. The other six or eight men with Caines wore

plain black vests. Based on Mr. Lemieux’s evidence that only full members of the HAMC may

wear attire saying “Hells Angels” with the wing and death head insignia, I conclude that there

were at least two members of the HAMC among the people accompanying Caines in the bar on

that occasion.

[643] Although I accept that the event occurred as described, Walker’s evidence does not link

Alcantara and Knapczyk to the Caines conspiracy so as to establish their membership in it in the

summer of 2005.

[644] The Crown submits that the Walker event supports its theory as to the involvement of

“bikers” (i.e. the Nomads) in supporting the Caines conspiracy in the summer of 2005, a prelude

to the transfer of that role to Alcantara and Knapczyk at the end of August, when they are said to

have joined the conspiracy as enforcers or facilitators.

2012 ABQB 521 (CanLII)

Page: 148

(f) Alcantara and Knapczyk were associated with the HAMC,

July 1, 2005 - March 31, 2006

[645] As noted above, Alcantara concedes that he was a member of the HAMC during the

Project Koker investigation. I am satisfied from the evidence presented at trial that, indeed, this

was the case and that he was a prospect in June 2005. By August 2006, he was a full member of

the HAMC.

[646] I am satisfied on the basis of the evidence presented at trial that by at least August 2005,

Knapczyk was a full member of the HAMC and would have been a member or at least a prospect

for a year before that.

[647] I have concluded on the basis of the evidence presented at trial that LePoidvin was a

prospect with the HAMC Alberta Nomads chapter in June 2005 and that by June 13, 2006 he was

a full member.

[648] The evidence presented at trial suggests that in August 2005 Cantrill was a member of the

HAMC.

[649] I am satisfied that Saunders was a prospect with the Edmonton chapter of the HAMC in

August 2005 and January 2006. He was still associated with the HAMC in the summer of 2006.

[650] There is evidence that Caines was a supporter of the HAMC in Alberta. Caines had an

ongoing and well documented relationship with Alcantara, a prospect and member of the HAMC

Edmonton chapter during the alleged offence period. He had a documented and on-going

relationship with Knapczyk, a member of the HAMC Edmonton chapter during the alleged

offence period. The search of Caines' house in Calgary on May 31, 2006 turned up support gear of

the HAMC, a t-shirt which read "Support Your Big Red Machine, Nomads, Alberta" on the front.

Mr. Lemieux testified, and I accept, that the "Big Red Machine" is a reference to the HAMC.

[651] At step two of the analysis, Walker’s observations of Caines consorting with a group of

men, two of whom were dressed in HAMC garb, is admissible although of limited value.

(g) Evidence of Alcantara’s probably membership in the

conspiracy

(i) General

[652] Starting in April 2005, Cst. Pennie assisted in Project Koker by doing surveillance. Her

task was to follow Alcantara, as well as Knapczyk and Caines, day-to-day, to see what they did.

She testified that Alcantara did not attend any place of work, but rather he took his son to school,

met people and went to restaurants. He owned a Cadillac and rode a Harley Davidson motorcycle.

2012 ABQB 521 (CanLII)

Page: 149

[653] The RCMP searched Alcantara’s Edmonton residence on February 9, 2006. They

discovered a variety of weapons, including a taser on the nightstand in the master bedroom, a

machete in a sheath from the nightstand in the master bedroom, four butterfly knives, a Luger

pistol and clip, another taser and a plastic knife in a sheath. Also found was a metal floor safe in

the garage, a police radio scanner, a radio frequency device, identification bearing his photograph

but in other names, and evidence that Alcantara was associated with the HAMC. Ownership of

these items, in particular the weapons, are consistent with Alcantara’s involvement with illegal

activity, particularly drug trafficking. These items also are consistent with use of force,

intimidation and violence.

(ii) Intercepted communications and surveillance

[654] At this step of the Carter analysis, only those statements in the following calls that

constitute admissions by Alcantara will be used to determine whether he was probably a member

of the Caines conspiracy, while statements by the other party to any given call will be used, if at

all, for context only or as proof the statement was made, but not for proof of the truth of the

statement.

[655] On August 24, 2005, Alcantara and Knapczyk were observed arriving at the Nomads’

After Hours Club in Edmonton at about 2:30 p.m. and leaving at about 3:00 p.m. At 3:48 p.m., a

full patch member of the HAMC was seen driving a blue Harley Davidson motorcycle registered

to Cantrill southbound on 142 Street in Edmonton in the near vicinity of the Nomads’ After Hours

Club.

[656] In the call at Tabs 3, made on Wednesday, August 24, 2005, Alcantara advised Caines not

to worry about what Lee had said. I take him to have been referring to LePoidvin, a prospect with

the HAMC Nomads chapter at the time. Caines indicated that he was just doing what he was told.

Alcantara confirmed: “That’s what you do.” In the call at Tab 4, a little more than an hour later,

Caines told Alcantara that “he” had called and wanted to go for a drink. This appears to have been

a continuation of their earlier conversation about “Lee.” Alcantara said: “... you were told not to.

So that’s how you’re going to keep it... The guy’s not even supposed to talk to you... We told

him not to.” When Caines said “he,” meaning LePoidvin, was talking like “you’re not shit,”

meaning Alcantara or Alcantara and his associates, Alcantara responded: “It’s not that, It’s

about, it’s, it’s about the reasons. There’s no, you know what I mean?” He told Caines: “...

he’s not the guy you talk to, anyways. Out of tho - out of them... he’s not ah thing, you know

what I mean?... It’s like me so. So, whatever. You don’t want to fuckin’ talk to him about it.

He knows who to talk to. And that’s not you... it’s not up to you. It’s up to fuckin’ ah, you

know what I mean?... They know who to talk to... tell him when buddy will be back.”

Alcantara appears to have been suggesting that “out of them” LePoidvin was not the one for

Caines to be speaking to because he was “like me” - the same as Alcantara, just a prospect.

Alcantara said LePoidvin was not “a thing.” I take him to have meant a full member of the

HAMC. When he suggested that Caines tell LePoidvin “when buddy gets back,” I infer he was

speaking about Knapczyk, a full patch member - the member sponsoring Alcantara.

2012 ABQB 521 (CanLII)

Page: 150

[657] Alcantara later checked to see if Caines had any more problems (Tab 5) and again advised

Caines: “they know you’re not the one to talk to about it. So... listen when the one fuckin’

guy that’s a you-know-what, fuckin’ ah that, that I trust, you know, I’m gonna listen to

what he says before what anyone else says... He’s the one guy that you trust the most,

right?” Caines agreed. When Knapczyk called 20 minutes later (Tab 6), Alcantara told him his

ears must have been ringing and that he had just been thinking about calling him. He said he was

weight training by himself, that he had been going to train with “buddy there,” meaning Caines,

but buddy’s phone had been ringing. When Knapczyk asked why, Alcantara responded: “...

they’re just wondering,,, people wanted to get together and stuff like that.” Knapczyk said he

was leaving at the wrong time. Alcantara said: “Kind of... I’ll make sure he’s entertained.”

[658] In the call at Tab 8, made on August 24, 2005 about an hour after Alcantara and

Knapczyk’s conversation, Caines told Alcantara that he was going to meet with “this guy,”

meaning LePoidvin, and tell him “what I was told and I don’t want to talk about it.” Alcantara

instructed: “Don’t answer any questions.” Caines advised he was going to say he had been told

to do what he did and “you guys decide yourselves what the fuck’s goin’ on.” Alcantara

confirmed that is “exactly” what he should do, adopting Caines’ assertion as reflecting his own

view. Alcantara called him back (Tab 9) and told him not to even bother... “He’s talkin’ to the

wrong guy... to sort it out with.” He then told Caines: “Remember what I just told you before.

What I told you like, the one - you know. You’re gonna listen to whatever right?... These

people you know and trust.”

[659] Shortly after midnight on Thursday August 25 2005, Alcantara called Knapczyk (Tab 12)

to advise him that “buddy,” meaning Caines, had met with “people.” He reported that the

“people” “... didn’t like the food at all. They were really pissed off about the fuckin’ meal

and the service.” Knapczyk asked what “buddy” said. Alcantara answered: “He said... Fuckin’ I

was doin’ what I’m told and you know? ... some people had a few things to say... And they

said that the fuckin’... cook fucked up when he ordered the fuckin’ ah, the food ‘cause it

was, you know? The food was bad or whatever, so they didn’t like the food eh?... there was

someone I didn’t expect. Un, how can I put that... Yeah someone was ah, Sarge was pretty

choked.”

[660] A few hours later, Alcantara called (Tab 13) and told Knapczyk that Neil (Cantrill) had

called and wanted Alcantara to call him. He asked Knapczyk for advice in terms of what to tell

Neil. When Knapczyk asked if Neil had just phoned looking for Alcantara, Alcantara replied:

“Yeah, well buddy, buddy talked to him though. That’s who was, you know, who was pretty

choked... Buddy talked to him, earlier. When I told you.” Alcantara immediately called

Cantrill and arranged to meet him at the “house” (Tab 14), which I take to mean the HAMC

clubhouse. A minute later, Knapczyk called Alcantara (Tab 15), who told him that he was

supposed to meet “buddy,” meaning Cantrill, at the “house” in ten minute. They spoke again

twenty minutes later (Tab 16), before Alcantara’s meeting with Cantrill. Alcantara advised

Knapczyk that he would tell Cantrill “how it came from the beginning.” He said Knapczyk and

2012 ABQB 521 (CanLII)

Page: 151

Cantrill were probably the “two guys I respect the most.” He indicated he would tell Cantrill to

call Knapczyk. He said: “If I take a lump buddy, whatever man. I’ll take it... it’s really hard

for me because I’m a prospect right... but I respect the patch... with fuckin’ the most respect

out of anything... in life is that patch right?... Me, I’m with you so whatever.” After the

meeting, Alcantara informed Knapczyk (Tab 18) that he had told Cantrill he would leave it up to

“[g]reater powers to decide.”

[661] A male believed to be Cantrill was seen in full colours in the vicinity of the Nomads’ After

Hours Club the day before Caines’ meeting with him and LePoidvin. I infer that Cantrill and

Knapczyk were the two Alcantara respected the most since they were both full members of the

HAMC, whereas LePoidvin and Alcantara at that time were simply prospects. LePoidvin was a

prospect with the Nomads. Cantrill attended the meeting between Caines and LePoidvin and was

pretty “choked” as a result. He called Alcantara shortly after that meeting. It is reasonable to

conclude that Cantrill too was a member of the Nomads.

[662] On Monday, August 29, 2005, Alcantara called Caines (Tab 26) and asked what was going

on and whether anyone had called Caines. Alcantara said he would have to wait for his “buddy” to

call him. Knapczyk called Alcantara (Tab 27) later that evening. Alcantara told him that Big

Head (Caines) had called and did not know what was going on. He asked Knapczyk if he had

talked to anybody. In a call a couple of hours later (Tab 28), Alcantara replied affirmatively to

Caines’ question about whether those guys had had “dinner today.” He told Caines: “Go back

and we’ll eat the same shit we did last week.”

[663] In the call at Tab 30 on Tuesday, August 30, 2005, Alcantara and Knapczyk agreed to

meet the next day. In the call that day at Tab 31 between Caines and Alcantara, Caines asked:

“you guys go for supper yet?” Alcantara said he missed it but “we did.” Caines inquired what

happened and Alcantara answered: “Staying the same from the last time... Since the change.

Well, mm, uh, that’s all you need to know for now.” Caines said he needed some problems

solved with Webb. Alcantara told him: “I told you, that’s taken care of.” Caines said Webb was

still there and he wanted to “take care” of him. Alcantara responded: “Just wait till you fuckin’

talk to somebody. Fuckin’ just hold on. It’s not that fuckin’ far... I know it’s been fuckin’

long time comin’.” When Caines asked Alcantara: “Find out exactly what the fuckin’ terms are

and fuckin’ everything. I wanna know... Or else I’m gonna do it myself again... I said nobody, I

wanna be on my own,” Alcantara responded “For fuck sakes, man, I’ll talk to you about this in

person.” Caines replied “Okay, sorry.” I conclude Alcantara and Caines were talking about a

subject Alcantara wished to conceal, the “terms” of the arrangement they have been discussing. It

is also apparent that Caines looked to Alcantara for problem solving in terms of Webb, and that

Alcantara was in a position of authority over Caines. I agree with the Crown that this call

demonstrates the existence of an agreement that provided for Alcantara’s people to assist Caines

with problems relating to competition with his cocaine trafficking business.

[664] In summary, Alcantara’s statements and actions in the intercepted communications at Tabs

1 to 31 show that:

2012 ABQB 521 (CanLII)

Page: 152

C he was in frequent contact with Caines;

C from at least August 24, 2005, he gave Caines direction on how to deal

with LePoidvin, a prospect with the HAMC Nomads chapter;

C Alcantara himself was dealing with a conflict with LePoidvin and Cantrill

that he would leave to “[g]reater powers to decide;”

C Alcantara told Knapczyk that Caines wanted to know what to do;

C Alcantara met with Knapczyk;

C Alcantara reported to Caines that: “it is staying the same from the last

time...since the change.”

C Following Alcantara’s advice that “it is staying the same...,” Caines said he

needed some problems solved and that Webb was still there. Caines asked

if that had been taken care of. Alcantara said “Yeah,” showing his

involvement in taking care of this problem.

C Alcantara said he would talk to Caines about the “terms” in person. I

understand this to be the terms of an agreement between Alcantara and his

people, with Caines, that would involve looking after Caines’ problems.

[665] On Thursday, September 1, 2005, in the call at Tab 38, Alcantara told Caines he was

“gonna overlap...Fuckin’ Monday’s rolling around quick.” This call is consistent with the

Crown’s theory that Caines was paying Alcantara on a weekly basis for protection. If Caines was

late in paying, his payments would “overlap.”

[666] In the call at Tab 39, just before midnight on September 1, 2005, Alcantara told Cantrill he

was at the “house.” Cantrill said he might pop down there. Six minutes later, Alcantara called

Knapczyk (Tab 40) and said he was at the house and had just gotten back from Showgirls where

the “[s]ame guy that was beaking before... called me a thief.” He said that: “... when I have a

chat with buddy again, the other guy... That guy who gave me shit... before... Comin’ down

here.” I conclude that the guy who gave him shit before, who was coming down there, was

Cantrill. I infer that the guy who was “beaking before” was LePoidvin. On Friday, September 2,

2005, Alcantara agreed to meet Caines at the “house,” by which I again take him to have meant

the HAMC Fort Road clubhouse (Tab 43). On Monday, September 5, 2005, Alcantara agreed

(Tab 47) that he and Caines could meet the next day with the guy he could not get ahold of the

other night.

2012 ABQB 521 (CanLII)

Page: 153

[667] On Tuesday, September 6, 2005, Alcantara arranged for Caines (“Fuckin’ Head”) to meet

Knapczyk at the HAMC clubhouse in Edmonton (Tabs 49 and 50).

[668] On Saturday, September 10, 2005, in a conversation between Alcantara and King (Tab

56), Alcantara told King some guys wanted to talk to him. He asked King if “Paul” had talked to

him. King said: “... those fellas?... From down there? ... The ones that use to deal with J.C.?”

Alcantara said: “Yeah.” In this call, Alcantara acknowledged that the group that Paul belonged to

used to deal with “J.C.;” that is, Caines. Caines had the phone number for Sukys in the contact list

of one of his phones. I agree with the Crown that “Paul,” who Alcantara confirmed was one of

those guys from “down there,” was Paul Sukys, shown by the evidence of Detective Greaves to

have been a prospect of the HAMC Nomads chapter (located in Red Deer) as of April 17, 2005.

[669] In a call later that day (Tab 57), King asked Alcantara again who he should be phoning and

what “they” had been saying. Alcantara responded: “That fuckin - one of those guys that you

fuckin’ talked to for fuckin’ Jeff there.” This call confirms that the J.C. whom he had referred

to in the call at Tab 56 was Caines. Alcantara asked if King had spoken to Paul yet. Alcantara

speculated about why Paul wanted to speak to King. Alcantara thought it might stem from the past

- from the big loss - or “it could be about that thing with uh, fat head ready to fuckin’, you

know? Tear it up and using your friends - you know what I mean?” I interpret this

conversation as Alcantara confirming that Caines was ready to “tear up” his former agreement

with the Nomads and using King’s friends; that is, Alcantara, who had identified himself as a

friend of King’s previously in the call, and others. Alcantara also agreed with King’s statement

that “you guys,” meaning Alcantara and others, “said what you had to say and you got a piece of

the action.”

[670] In the call at Tab 58, Alcantara told Caines: “I was uh supposed to fuckin’ get on you

about the schedule... gotta stay on the schedule man... You know just make us look bad

because if you know? If we’re gonna be the new what’s it called then fuckin’ if things are

messin’ up it’s gonna fuckin’ make me look bad right? Both of us. If I’m, if we’re constantly

behind schedule.” When Caines said the schedule had just changed from Monday to Thursday for

his convenience, Alcantara told him: “... let’s just stay, stay on it.” Alcantara also said: “... you

know what you gotta do to fuckin’ change that then? I told you what you gotta do right?...

You gotta do the prorate... I’m fuckin’ serious man!... So we uh, fuckin’ control your guys

or we’ll control...” When Caines complained that was just a bad day for him, Alcantara said:

“Well then you’re gonna have to make up for the fuckin’ ah...” Caines pointed out that it was

just four days difference. Alcantara said: “... if it was me I’d say I don’t care. You know me.... I

already been fuckin’ told.” When Caines said he was going to be away for a couple of weeks,

Alcantara was concerned and asked him: “Do you have it, do you have it all, already figured

out for before you come back?”

[671] Alcantara in this call was telling Caines he had to stay on schedule. If not, it would make

them both look bad. Alcantara made it clear that he was under instructions to ensure Caines stayed

on schedule. When Alcantara learned that Caines had changed the schedule to Thursday (from

2012 ABQB 521 (CanLII)

Page: 154

Monday, see Tab 38 above), Alcantara instructed Caines that he would have to pro-rate. This call,

particularly Alcantara’s use of the words “prorate,” must refer to payment of money that Caines

had to make to Alcantara, who in turn had to account for it to others. As noted, in the call at Tab

57, during a conversation with King concerning an agreement and “fat head” (Caines), who was

operating a cocaine trafficking business in Fort McMurray, Alcantara confirmed that he and his

group had acquired “a piece of the action.”

[672] The question then is whether there is direct evidence admissible against Alcantara of what

was provided in exchange for the schedule of payments Alcantara was collecting from Caines on

behalf of his superiors.

[673] In calls made the following Thursday, September 15, 2005 (Tabs 60 to 65), Alcantara

made arrangements to pick up a package from Caines, delivered by Flight. Alcantara was then

observed by Cpl. Jancsek picking up a package (white bag like a plastic kitchen garbage bag) from

someone at the back door of Flight’s apartment building, going to the HAMC Fort Road

clubhouse, where an unknown male was subsequently seen carrying a white plastic garbage bag to

a vehicle, and then proceeding to his own house with nothing in his hands. I conclude that the

package from Caines to Alcantara was the scheduled payment due that Thursday (Tab 58).

[674] In the call at Tab 66, made on Friday, September 16, 2005, Alcantara expressed

consternation (“No way,” “Holy fuck”) at the news from Kjelshus that “Macko got popped there

last night,” a reference to the McDonald seizure of cocaine. In the call at Tab 68, made on

Monday, September 19, 2005, Alcantara asked Caines: “... are you on schedule still?”,

suggesting that Alcantara appreciated that the McDonald seizure may have had an impact on

Caines’ ability to pay.

[675] Again to summarize the calls from Tabs 56 to 66, on September 10, 2005, Alcantara

agreed with King that Caines was ready to “tear it up” and use his friends, and that Alcantara and

his friends had gotten a “piece of the action.” Alcantara had been assigned the job of keeping

Caines on a schedule, and directed him to “prorate,” which can only mean the discussion

concerned a payment schedule in the context of Caines’ drug trade in Fort McMurray. On the

following Thursday, Alcantara was observed receiving a package from Caines via Flight,

proceeding to the HAMC clubhouse, then going to his home without the package in hand.

[676] In the call on Wednesday, October 12, 2005 between Caines and Alcantara (Tab 84),

Caines told Alcantara that the “guy that pissed me off last week...The guy with the lawn mower...

[t]he bald guy that I asked to leave. He’s not gone.” Alcantara responded: “Okay. Okay.” Caines

asked: “Yeah. Alright?” He advised Alcantara the guy had just caused harm to one of his friends.

Alcantara again said: “Okay.” Caines said: “Alright?” Alcantara responded: “Okay.” I agree with

the Crown that Alcantara was acknowledging the import of the conversation: the bald guy with

the lawn mower was a metaphor for someone who was, in the vernacular, “cutting his grass;” that

is, taking Caines’ business. In my view, when Caines asked “Alright,” he was implicitly

requesting that Alcantara take steps to get rid of “the bald guy” and Alcantara acceded to this

2012 ABQB 521 (CanLII)

Page: 155

implicit request by saying “Okay.” This call reveals the nature of the arrangement that underlay

the payment schedule. Alcantara’s role was to fix the problems Caines had in his cocaine

trafficking business. In this case, it was with “the bald guy,” possibly Sekulich as he was bald or

had a shaved head and, according to Marche, was a drug dealer.

[677] The following day, on Thursday, October 13, 2005, Knapczyk called Alcantara twice

(Tabs 85 and 86). Alcantara asked Knapczyk to come see him and agreed that he had more

headaches, “Minor, minor. Just ah... Not minor, but yeah, just come see me... please.”

[678] In a call at Tab 409, made on Thursday, December 15, 2005, Alcantara agreed to Caines’

proposal to drop by the clubhouse.

[679] In calls at Tabs 411 and 412, on Wednesday, December 21, 2005, Alcantara told

Grimolfson he had to talk to Grimolfson’s “buddy there” and that: “... his guys are makin’

threats and shit, sayin’ they’re takin’ over up north... thirty of ‘em.” In answer to a question,

Alcantara told Grimolfson it was at the Mac (Fort McMurray) and it was Maleek, whom he later

referred to as “that nigger Maleek.” Alcantara complained to Grimolfson that: “... they’re doing

them for nine up there and he’s, he’s denying that he does it. And, and it’s not only that,

he’s going a step bigger on the big ones too.” I take this to mean that Maleek and his friends

were selling cocaine for a cheaper price and providing a larger quantity for the supposed weight.

Alcantara also complained they were: “[g]oing around offering - stealing fuckin’ people.”

Alcantara expressed concern that: “[i]t sounds like he’s buying it all the way man.” Alcantara

told Grimolfson he had been “feeling it” for a while, by which I take him to have meant that the

drug trafficking competition up in Fort McMurray was affecting his bottom line. Alcantara

explained that: “... I’ve been fair. I’m not saying don’t be here, don’t be there... I’m just

trying to come to an agreement.” He complained: “... no one’s keeping their end of the

agreements.” He then told Grimolfson: “So he walked up to my buddy and they said that

fuckin’ they’re taking over.” Alcantara and Grimolfson agreed that they should meet with

Grimolfson’s friend. Alcantara said: “Just the three of us. I don’t need to bring. I don’t need

to bring the big guy.”

[680] In my view, Alcantara in this discussion was raising concerns about a member of a rival

organization threatening to take over the sale of drugs in Fort McMurray. The reference to nine

would be consistent with $900, which would have been a significantly cheaper price for an ounce

of cocaine. Alcantara was exhorting Grimolfson to assist in Alcantara and Grimolfson’s buddy

coming to an agreement concerning the sale of drugs in Fort McMurray. Alcantara referred to his

own “buddy.” The discussion was about the business of selling drugs in Fort McMurray.

Therefore, I conclude he was referring to Caines and his cocaine organization, and that Alcantara

was looking for an agreement for a common price and weight for cocaine in Fort McMurray so

that Caines’ customers would not start buying from Maleek’s group. Alcantara suggested that he,

Grimolfson and the other guy sit down for starters. He did not need to bring in the “big guy.”

Alcantara agreed to Grimolfson’s proposal that “[w]e gotta lay down our boundaries and then they

can lay down theirs and then we can meet somewhere in the middle, you know what I mean?”

2012 ABQB 521 (CanLII)

Page: 156

[681] In the call at Tab 413, made on December 13, 2005, Alcantara learned from Grimolfson

that the “guys up there” the ones that included a black guy, were coming down the next day to

meet with Alcantara and Grimolfson to “figure it out.”

[682] In the call at Tab 416, made on Thursday, December 29, 2005, someone named Joe at the

Edmonton Remand Center called Alcantara. Alcantara told Joe: “My friends had tu... turn it off

for four days because fuckin’ people were gettin’ threatened.” Alcantara said to Joe: “well,

no, no one’s, no one’s sayin’ you can’t be there. I’m just sayin’ fuckin’ you know?... There’s

certain rules and ah, you know?” They talked about price fixing.

[683] In a call later that evening (Tab 417), Dean asked Alcantara if he had been at his guy’s

house that day. Alcantara said he talked with Dean’s brother earlier. Dean said that was not his

brother. Alcantara clarified: “From jail... he called me up,” by which I presume him to have

meant Joe. Dean then understood who he was talking about. Alcantara asked if Dean’s “boys...

are still doing, right?” Alcantara said it was all good, that he knew Dean’s guy and asked him to

have Sneeze call him. Given the timing and similar content to the calls at Tabs 411 and 412, I

conclude that this call was in reference to Alcantara’s “friends” in Fort McMurray, who had

stopped selling drugs (turned it off for four days) because they were being threatened. This

conversation, too, shows Alcantara in the role of front-line fixer of problems in the drug

trafficking business.

[684] Tabs 422 to 433 contain calls over the period January 5, 2006 to January 10, 2006, where

Alcantara and Caines arranged for all those who had been bullied by “buddy” to come to a

meeting in Edmonton. Initially, Alcantara thought it had just been one guy (possibly Felix - see

the calls at Tabs 424 and 431) who they had been “barkin’ at.” Caines told him it was four of

them who had been bullied. In the call at Tab 425, Alcantara told Caines “we” need to talk to all

of them, including the “guy that gave up a thing.” In the call at Tab 431, Alcantara assured

Caines: “It’ll be to your benefit buddy... Everybody that’s been, everyone that’s been

bullied...even Patty...” In the call at Tab 433, Alcantara reported to Knapczyk that their friends

would be there in a couple of hours.

[685] The calls at Tabs 434 to 458, made over the period January 10, 2006 to January 12, 2006,

concerned the gathering of Caines’ people that had been bullied for a meeting in Edmonton. One

person could not be found. Alcantara reported this to Knapczyk in the call at Tab 443. He told

Knapczyk that the “guy that turned around yesterday - last night. Can’t get a hold of him.” In

the call at Tab 444, Alcantara told Gregoire to “stick around” because “big guy just said,

fuckin’ make sure because we’ll, we’re gonna do somethin’ anyways.” In the call at Tab 449,

Alcantara told Knapczyk that he had instructed the guys to be here tomorrow with all their

numbers. In the call at Tab 457, Alcantara told Gregoire: “...you guys can just fuckin’ pack it

in.” In answer to Gregoire’s query as to whether “it all got taken care of,” Alcantara promised that

if Gregoire called him when he was heading to the north side, he would tell all. In the call at Tab

458, they agree to meet at a pizza place on the north side.

2012 ABQB 521 (CanLII)

Page: 157

[686] In the call at Tab 460, made on Friday, January 13, 2006, Alcantara and Caines spoke. In

response to Caines’ question about whether the sledding problem had been fixed, which I take to

be an inquiry as to whether the bullying problem had been solved, Alcantara said: “No. It’s just

fuckin’ one of those kids fuckin’ changed the story.” He identified the person as the one they

had not been able to get ahold of. He told Caines: “... somehow someone else got to him.”

Alcantara said: “I can’t tell anyone to be with it - to do or not to do anything. I’m not in any

position.” I conclude that Alcantara was referring to his status as a prospect with the HAMC.

[687] To summarize the pertinent calls from Tab 84 to Tab 458, Alcantara agreed to look after

the problem of removing “the bald guy” who had been mowing the lawn. Alcantara talked to

Grimolfson about the Maleek group undercutting prices and stealing people. He agreed that they

should meet and agreed with the suggestion that each side should lay down their boundaries and

then meet in the middle. Alcantara spoke to Joe at the Remand Centre about his friends having to

“turn it off” for four days because of being threatened. He indicated he was not saying the people

doing that could not be there, but there were rules. Alcantara arranged for Caines’ people that

were being bullied to come to Edmonton for a meeting. He reported to Gregoire, who was

organizing the meeting from the Caines’ end, on the outcome of the meeting. Alcantara continued

to meet with Caines in January 2006.

[688] Alcantara was a prospect of the HAMC during all of these events. This is relevant

because, as noted, during the discussion with Grimolfson, during the efforts to have Caines stay

on schedule, during the arrangements being made for the meeting of those being bullied,

Alcantara was taking instructions from and reporting to a higher authority, which I take to be

members in the Edmonton chapter of the HAMC with which he was associated. He took a

position with Caines that alternated between wooing him (Tab 5), advising him (Tabs 8, 9, 431)

and lording it over him (Tabs 4 and 58 ); and was the intermediary between his superiors and

Caines, ensuring that Caines kept to his end of the bargain. The bargain was that Caines would

pay money on behalf of his group and Alcantara would facilitate the fixing of problems that arose

in Caine’s cocaine trafficking business.

[689] During these events, Alcantara was not employed but rather spent his time meeting people

and talking on the phone. During the search of his Edmonton residence on February 9, 2006, the

police seized weapons and paraphernalia consistent with the drug trade, intimidation and violence.

(iii) Conclusion on Alcantara’s probable membership in

the conspiracy

[690] On the basis of evidence directly admissible against Alcantara, including surveillance

evidence, items seized from his house, and statements and admissions made by him as recorded in

the intercepted communications, I am satisfied beyond a reasonable doubt that he was a member

of the Caines drug trafficking conspiracy in the period August 2005 to January 2006. His role was

to provide protection for the group in their drug trafficking activities.

2012 ABQB 521 (CanLII)

Page: 158

(h) Evidence of Knapczyk’s probable membership in the

conspiracy

(i) Intercepted communications and surveillance

[691] In a call on Wednesday, August 24, 2005 (Tab 6), Alcantara told Knapczyk that: “... that

buddy (Caines) ...his phone’s been ringing...” and “... people wanted to get together...” Knapczyk

responded: “Fuck, I’m leaving at a wrong time, eh?” Alcantara said: “Kind of...I’ll make sure

he’s entertained.” Knapczyk said: “Yeah. Okay, man.”

[692] Alcantara reported to Knapczyk in a call on August 25, 2005 (Tab 12) that there had been

a big dinner and people were wondering where he was. He advised Knapczyk that “...he went and

had supper with them and stuff” [in context, referring to Caines] and that they “...were really

pissed off about the meal and the service.” He said that “buddy” (Caines) had told “Sarge” that he

had been doing what he had been told and “Sarge was pretty choked.” Knapczyk indicated that his

phone had not rung, and said: “I’ll deal with it when I get back.”

[693] In a call on August 25, 2005 (Tab 13), Knapczyk instructed Alcantara how to deal with

Neil (Cantrill). He told him: “Yeah just say, you know you gotta talk to me, man. Just explain

the situation though... Maybe I should wait... till I get home. Later that day, on learning

Alcantara was meeting Cantrill in ten minutes (Tab 15), Knapczyk told Alcantara: “If anything

happened phone me.” He also told Alcantara to “... explain it how, you know hey.” When

Alcantara said he would do his best, Knapczyk commented: “... you shouldn’t have to, you

should, they should be waiting...”

[694] As Alcantara approached the meeting with Cantrill, he and Knapczyk spoke again (Tab

16). Alcantara told Knapczyk that he would: “...tell him how it came from the beginning...”

Knapczyk agreed with this proposal, saying: “Yeah.” When Alcantara said he respected the guy

(Cantrill), Knapczyk reassured him: “He respects you too, you know.” Alcantara said that

Cantrill and Knapczyk were probably the two guys he respected the most. He said : “I’ll tell him

the truth...how things became...” Knapczyk said: “Yeah.” When Alcantara said he would “take a

lump” if necessary, Knapczyk replied: “No,no,no,no,no,no,no, no... For what reason right?...

There’s no need, you’re my prospect.” Alcantara said that he respected the patch the most out of

anything in life and that he would go the distance for “him,” meaning Cantrill. Knapczyk

responded: “Well yeah... remember...who got him started.”

[695] Hours later, in the call at Tab 18, Knapczyk called Alcantara and asked if he should come

home. Alcantara reported on the meeting of the previous evening and said that he would leave it

up to “[g]reater powers to decide.” Knapczyk agreed that he should.

[696] In context, it is clear from this series of calls that Alcantara and Knapczyk were discussing

Caines. Knapczyk’s response to the information that Caines’ phone had been ringing and people

2012 ABQB 521 (CanLII)

Page: 159

wanted to get together with him was that perhaps he was leaving at the wrong time. Knapczyk

agreed to Alcantara’s proposal that he look after Caines while Knapczyk was away. Alcantara

then reported to Knapczyk that Caines had gone to the meeting and “Sarge was pretty choked.” I

infer that Alcantara meant Cantrill by his reference to “Sarge.” There was some evidence

presented in this trial that Cantrill was a member of the HAMC, possibly the Nomads chapter.

Knapczyk said that he would deal with it when he got back. When it became apparent that

Alcantara was going to meet with Cantrill, Knapczyk appeared upset that Cantrill was not waiting

until he was back. He instructed Alcantara to simply explain the situation to Cantrill.

[697] Contrary to Knapczyk’s argument that he was simply mediating issues on behalf of his

prospect Alcantara, in my view these calls indicate that, in fact, he was in control of and involved

in the underlying issue, calling the shots in terms of Alcantara’s response to the problem and

intending to deal with Caines’ problem when he returned.

[698] In a call on Monday, August 29, 2005 (Tab 27), Knapczyk asked Alcantara if he had

talked to Big Head (Caines). On being advised that Caines did not know what was going on, and

in response to Alcantara’s question as to whether he had talked to anybody, Knapczyk said he was

“just talkin’ to him now.” Alcantara advised Knapczyk that Big Head wanted to know what he

should do. Knapczyk said: “Oh, Okay.” Alcantara asked: “So ...you wanna fill me in as soon as

you know bro?” Knapczyk said that he would.

[699] In my view, this call also shows that Knapczyk was involved in what was going on with

Caines, that he was dealing with the issue with a third party, and that he would inform Alcantara

of the outcome so that Alcantara could in turn advise Caines what had been decided.

[700] The following day, Knapczyk and Alcantara met. The next day (Tab 29), Knapczyk asked

Alcantara: “Is it cool?” Alcantara replied: “Yeah. What we talked about?...Okay.”

[701] In a call on Thursday, September 1, 2005 (Tab 40), Alcantara told Knapczyk that: “same

guy that was beaking before...called me a thief... guy who gave me shit... [and is] comin’ down

here.” Knapczyk said at first he was not free as he had his “little girl,” but then said: “... well, if

it’s important...I’m on my way.” Knapczyk’s response was to immediately go to Alcantara’s aid

when he was threatened.

[702] In a call on Tuesday, September 6, 2005 at 1:33 p.m. (Tab 49), Knapczyk responded to

Caines’ request, made through Alcantara, to meet him, agreeing that “Fuckin’ Head” (Caines)

could come to the clubhouse.

[703] On September 6, 2005, Knapczyk was observed by police surveillance members walking

around the HAMC Fort Road clubhouse parking lot at 1:37 p.m.. He was still walking around the

parking lot area at 1:46 p.m. At 2:33 p.m., Caines walked into the parking lot. He and Knapczyk

walked to the back door of the clubhouse at 2:38 p.m.. At 2:45 p.m., Caines got into the passenger

seat and Knapczyk into the driver’s seat of Knapczyk’s Yukon.

2012 ABQB 521 (CanLII)

Page: 160

[704] In a call on Wednesday, September 14, 2005 (Tab 59), when Alcantara said he was just

heading to Showgirls to talk to Lee (LePoidvin), Knapczyk said he would come along if Alcantara

wanted him to, but Alcantara said he should not have to worry about that. Knapczyk indicated he

was going to talk to “buddy” and thought Alcantara wanted to talk too. He then said: “... go do

what you have to do and then give me a call.”

[705] On September 29, 2005 (Tab 73), Knapczyk told Alcantara that he had just had a chat with

Neil (Cantrill), that Cantrill had conveyed some information about Alcantara, leading Knapczyk

to tell Alcantara that from now on he should just mind his business, to wait until he got “in” (from

the context, I take it he meant when he became a member of the HAMC), when he could “set guys

straight.” Knapczyk said: “...[the] Steve thing, and ...the Lee thing and like ...they’re all

playin” it off like its you, you, you, and you know.” In the call at Tab 74, Alcantara and

Knapczyk had a long discussion about Alcantara’s conduct. Eventually, Knapczyk said: “...There

was nothing wrong - what was wrong was you shoulda’ asked Lee.” Later in the call,

Knapczyk said: “ Honestly it should never be like this. We taking on all those guys has ruined

what we had in this province. You understand? ... What was something that was good is

something that isn’t that good. ...But in time it’ll fix itself....” Alcantara said he was glad that

Edmonton was tight and solid. Knapczyk commented that he would like Alcantara to be there to

make it right, that it had gone south, it had gone sour. He reminded Alcantara that he was a

prospect. Alcantara said Edmonton was going good, the way “...these guys are gettin’ groomed.”

Knapczyk said Alcantara was a big part of that, “...You’re just there with me man.” They ended

the conversation by Knapczyk saying “Love ya” and Alcantara saying “...Love you too bro.”

[706] In a call on October 8 (Tab 81), Alcantara reported to Knapczyk that “Fuckin’ Fathead

...Wants to punch buddy there. ‘Cause he’s gettin’ in his face and shit, calling him a liar.”

Knapczyk asked who Fathead wanted to punch out, and Alcantara said “buddy who’s... causin’.”

Knapczyk said that if he wanted to he could. He indicated he was fed up with the whole lot of

everything, “...I aint’ nobody’s babysitter man, you know?...I can’t believe I have to ...hold

everybody’s hand.”

[707] In the call at Tab 82, Alcantara phoned Knapczyk to report that Jeff (Caines) and Buddy

(LePoidvin) were going “toe to toe;” that is, fighting. Knapczyk said: “No way,” and Alcantara

told him that Neil (Cantrill) was there. Knapczyk responded: “Okay, let him go then. It is clear

that the fight was about LePoidvin having called Caines a liar. In my view, this call supports the

conclusion that Knapczyk had an authoritative role in the Caines’ conflict.

[708] In a call on Thursday, October 13, 2005 ( Tab 85), Knapczyk agreed to meet with

Alcantara. In a later call that day (Tab 86), Knapczyk again agreed to meet with Alcantara, having

been informed Alcantara had more “headaches.” To place these calls in context, they were both

made the day after Caines had complained to Alcantara (Tab 84) that the “guy that pissed me off

last week...The guy with the lawn mower... [t]he bald guy that I asked to leave. He’s not gone.”

[709] In a call on December 8, 2005 (Tab 369), Caines asked to meet with Knapczyk and

Knapczyk agreed to do so. This call marked the beginning of a series of intercepted calls in which

2012 ABQB 521 (CanLII)

Page: 161

Knapczyk dealt directly with Caines. Later on December 8 , in the call at Tab 372/373, Caines

called Knapczyk to tell him that: “... that guy... outside the club that night... he went to one of my

fuckin’ and took something that wasn’t his... He went to one of my guys last night and took

something that wasn’t his, one of my things... up there.” Knapczyk told him: “... just come talk to

me man.” This communication too indicates that Knapczyk was involved in solving problems for

Caines in relation to his cocaine business; in this case, the problem of theft.

[710] Knapczyk arranged to meet Caines at Boston Pizza after 11:00 p.m. that night (Tabs 374 -

375). Thirty minutes later, Knapczyk and Caines called Mannarino (Tab 376). Knapczyk,

presumably speaking to Caines in the background, said: “I know, and that’s why I said hey, go

see these guys, I - you know? And you went and seen ‘em, ‘cause I couldn’t you help you

anymore. Gotta get out of fuckin’ debt.” Mannarino advised that he had just left Showgirls.

Knapczyk said that he wanted to meet with him. Mannarino suggested Knapczyk’s “house.” I

infer that Knapczyk wanted to speak to Mannarino, who was probably associated with the

HAMC, possibly with the Nomad chapter, in order to discuss the theft from Caines’ guy.

[711] In my view, this call suggests that Knapczyk had been helping Caines, but was not

prepared to do so anymore because Caines was in debt. I infer that Caines had to pay, directly or

indirectly through Alcantara, for Knapczyk’s help.

[712] It is not clear what may have happened in the interim, but there is evidence that the next

day, December 9, 2005 (Tabs 378-379), Knapczyk continued to deal with Caines, who called to

tell him his guys were “freakin’” on him. He asked if Knapczyk had figured anything out. It is

reasonable to conclude that he was again talking about the theft. Knapczyk responded: “I’m

working on it right as I speak, man.”

[713] In my view, this series of calls show that Knapczyk was assisting Caines by working on

the problem of the theft from Caines’ guy.

[714] In a call later on December 9, 2005 (Tab 380), Knapczyk called Caines and told him to

keep his mouth shut and stay off the phone, not to make a big deal of nothing. In response to

Caines’ question as whether “it’s done,” Knapczyk said: “It will be, alright?” This call,

following on the last several, supports the conclusion that Knapczyk was solving the theft

problem for Caines. He assured Caines it would be looked after.

[715] In a call the next day (Tab 387) between Knapczyk, who was believed to be at the HAMC

Fort Road clubhouse in Edmonton, and Caines, who was in Fort McMurray, Caines asked

Knapczyk: “You coming tomorrow?” Knapczyk reassured Caines: “Oh yeah, I told you I

would.” Caines said: “Okay, right on... Perfect.” Knapczyk then asked: “But, ah, that really did

happen and all that, right?” Caines replied: “Yeah. Oh, fuck...” Knapczyk said: “Like exactly

like you said, ‘cause you’re there now, right, so you would know, right?” Caines replied:

“Exactly like I said, man.” Knapczyk said: “Alright, alright, cool.” Caines then explained:

“Remember that guy, that, that Josh?...He was the one who gave it all up....Like he was the one

who, who told them where to go. ...Josh, remember that kid?” Knapczyk replied: “Oh, yeah, yeah,

2012 ABQB 521 (CanLII)

Page: 162

yeah.” Caines continued: “Yeah, he was the one who told them... where to go.” Knapczyk said:

“....Oh, really, hey... Yeah, okay.” Caines said: “ ‘Cause he knew, right.” Knapczyk said: “Yeah,

okay, for sure. Thanks, man.” I interpret this call as Knapczyk seeking reassurances from Caines

about the theft before going to Fort McMurray to attempt to resolve the problem for Caines.

[716] The next day, December 11, 2005 (Tab 393), Knapczyk told Caines that his fuel pump had

broken, the implication being that he could not then go to Fort McMurray. Knapczyk asked

Caines: “Did uh did that “thing” came back your way?” Caines said it had not but he had been

“told... it was...” Knapczyk said: “Yeah, okay... I’m waiting... that’s what I’m waiting for, too,

here.” Caines asked: “What did he have to say about that?” Knapczyk got upset and told Caines:

“Hey, just shut up man... you got a lot of questions, man.” Caines said: “Well, I was just

wondering because I was just fuckin...” Knapczyk interjected and told him: “That’s why I wanna

come down there.” Caines says he knew and had been hoping for that night, “such a perfect

night.” Knapczyk agreed it would have been the perfect night. Caines provides the context: “...this

is a special occasion tonight, too ...It was a Showgirls fuckin’ party...” Knapczyk said:

“Yeah...what do you want me to do, you know?” Caines then asked: “...none of those guys are

around here, are they...your buddies?” Knapczyk said there were not and asked why. Caines

replied: “So I didn’t wanna fuckin’ have to get my shirt dirty...” Knapczyk responded: “I don’t

think anybody’s around there...they’re all out of town.” Later, Caines told Knapczyk: “...

remember when I seen you the other - left you the other day? ... I had to fuckin’ - I got shook

down for three fuckin’ hours, man.... on the highway. About two hours after I talked to you,

fuckin’, they brought the dog and everything. Fuckin’ cocksuckers... some young fuckin’

goofball...trying...to be the hero...” Knapczyk replied: “They’re so far off they don’t even

realize it, you know... phone me if there’s any problem, okay.”Knapczyk told Caines he would

see him on Monday.

[717] Caines in this call was referring back to the theft of the “thing,” the problem Knapczyk had

undertaken to work on. Caines and Knapczyk were waiting for “it” (“the thing”) to come back;

that is, be returned. The call again shows that Knapczyk was directly involved in solving Caines’

theft problem. Knapczyk got upset in this call and told Caines to shut up, that he had too many

questions. This admonition confirmed that Knapczyk was alive to the danger of talking about this

matter on the telephone. I infer the topic of discussion was an illicit matter.

[718] Caines was at the head of a cocaine trafficking conspiracy in Fort McMurray. There is

ample physical evidence of Caines’ “guys” handling and dealing in cocaine for Caines in Fort

McMurray. Among the distributors selling cocaine for him, Marche, McDonald and Cardinal were

apprehended by police with kilogram quantities of cocaine in their possession. They were among

Caines’ “guys.” The stolen “thing” caused Caines enough concern to contact Knapczyk, who then

took on the job of locating it. The seriousness with which the theft was treated leads me to

conclude that it is not of a cell phone, as suggested by the Defence that it might be. It was not

money, as Caines referred to a “thing.” It was a concrete object. Its theft caused Caines’ “guys” to

freak, as would theft of their product. I conclude it was a quantity of cocaine that was stolen

(likely the kilogram of cocaine that Marche heard had been stolen), that Knapczyk agreed to

pursue its return, that he was working on it and by December 11, 2005 was waiting for it to be

2012 ABQB 521 (CanLII)

Page: 163

returned and that he agreed to go to Fort McMurray to facilitate this in his role as fixer of Caines’

problems, under the agreement by which he provided Caines’ business with protection.

[719] Caines indicated that he wanted Knapczyk to be there for the Showgirls’ party. Knapczyk

agreed it was a perfect night for him to come. Caines implied that he wanted Knapczyk there so he

would not have to fight himself. I infer that Knapczyk understood this veiled reference to his

walking into the party at Showgirls as a member of the HAMC. Caines asked if any of

Knapczyk’s buddies were around. I take him to have meant any other HAMC members who could

serve the same purpose of making it evident that Caines had friends with a reputation for violence

and intimidation.

[720] The call on Thursday, January 5, 2006 between Caines and Alcantara and Knapczyk (Tab

425), although largely a conversation between Caines and Alcantara, was made in Knapczyk’s

presence. Alcantara was attempting to arrange with Caines for Knapczyk to meet with a group of

Caines’ guys from Fort McMurray, including the guy who “gave the thing up.”

[721] In the next series of calls at Tabs 430, 433, 437, 443, 448, 449 and 452, Alcantara

arranged for the meeting between Knapczyk and Caines’ guys, who came from Fort McMurray to

deal with problems, including the problem of the theft of cocaine.

(ii) Conclusion on Knapczyk’s probable membership in

the conspiracy

[722] In summary, although Knapczyk was very circumspect while using the telephone, there is

evidence that he was dealing with Caines either through Alcantara or directly in the period of late

August 2005 through to January 2006. At the end of August 2005, Knapczyk was working on

something for Caines (Tab 27). On Tuesday, September 6, 2005, Knapczyk agreed to meet with

Caines at the clubhouse (Tab 49). On December 8, 2005, Knapczyk again acceded to a request by

Caines to meet. Caines had reported the theft of a “thing” from one of his “guys” and Knapczyk

had told him to come and talk to him. They met late that night. In Knapczyk’s call to Mannarino,

for whom there is evidence of an association with the HAMC, possibly the Nomad chapter, he

was recorded telling Caines in the background that he could not help him anymore, that Caines

had to get out of debt. This was an admission that he had helped Caines, and that Caines’ debt was

an impediment to him helping any further. Knapczyk then arranged to meet with Mannarino.

[723] On December 9, 2005 (Tabs 378-379), Knapczyk told Caines he was working on the

problem that was causing Caines’ guys to “freak out.” I infer that he was talking about the theft of

drugs from one of Caines’ guys. In the call at Tab 380, he instructed Caines to keep his mouth

shut and to stay off the phone. Caines asked “it” was done and Knapczyk said: “It will be,

alright?” I take him to have meant that the issue would be dealt with and the stolen cocaine

returned. On December 11, 2005 (Tab 393), Knapczyk confirmed to Caines that he was waiting

for “the thing” to come back; that is, the stolen drugs. Knapczyk was to go to Fort McMurray to

deal with the problems Caines was having but his fuel pump broke. None of his “buddies” were

around to do it for him. Finally, starting with a call on January 9, 2006, Alcantara arranged for

2012 ABQB 521 (CanLII)

Page: 164

Knapczyk to having a meeting with Caines’ “guys,” including the one who gave the stolen

cocaine up.

[724] On the basis of the evidence directly admissible against Knapczyk, including surveillance

evidence and his own statements and admissions recorded in the intercepted communication, I

conclude on a balance of probabilities that he was a member of the Caines drug trafficking

conspiracy in the period August 2005 to January 2006.

E. Step Three - Proof Beyond a Reasonable Doubt of Membership

[725] I have concluded that Caines was at the head of a cocaine trafficking conspiracy operating

in Fort McMurray from at least July 2005 to March 31, 2006. I am satisfied beyond a reasonable

doubt that Marche was one of Caines’ cocaine distributors and was a member of the conspiracy. I

have concluded that Cardinal, Gregoire, McDonald, Geebs (Bird) and Penton probably were

members of the conspiracy, playing a similar role as Marche. I have also concluded that Flight and

Hoskins were probably members of the conspiracy and that they acted as cocaine couriers, and

collectors and couriers of drug proceeds. Further, I have determined that King and Kamran Sattar

were probably members of the conspiracy, acting as suppliers of cocaine to Caines or as

facilitators for the supply of cocaine to him. Further, I have found that Caines Sr. was probably a

member of the conspiracy in that he counted drug proceeds for Flight which Flight had collected

for Caines and agreed to attempt to collect drug proceeds from Penton for Flight, who was acting

under instructions from Caines.

[726] Based on the evidence directly admissible against him, including his own acts and

declarations as summarized above, I have found that Alcantara joined the Caines conspiracy to

traffic cocaine in Fort McMurray at least by the time he spoke with Caines in the call at Tab 31,

on August 30, 2005. In the guise of friendship, he shepherded the changeover from LePoidvin and

the Nomads to Alcantara’s own group, as the group providing protection to Caines’ group in

terms of its trafficking activities.

[727] In the event I am wrong that without use of the co-conspirator’s exception to the hearsay

rule, the evidence directly admissible against Alcantara shows beyond a reasonable doubt that he

was a member of the Caines cocaine conspiracy, I consider the additional evidence comprised of

statements and actions of co-conspirators in furtherance of the conspiracy admissible against

Alcantara.

[728] I have found that Knapczyk was probably a member of the Caines conspiracy. Below, I

consider the additional evidence comprised of statements and actions of co-conspirators in

furtherance of the conspiracy admissible against Knapczyk to determine whether the Crown has

proven his membership in the conspiracy beyond a reasonable doubt.

[729] A statement is in furtherance of the common enterprise if it has the purpose of "advancing

the objectives" of the common enterprise. In this case, the common enterprise was the trafficking

of cocaine in Alberta, primarily Fort McMurray.

2012 ABQB 521 (CanLII)

Page: 165

1. Tabs 1 to 18

(a) Arguments of the parties

[730] The Crown interprets the calls at Tabs 1 to 18 as a discussion about a dispute between the

Nomads chapter of the HAMC and the Edmonton chapter of the HAMC over the enforcement

agreement with the Caines cocaine operation. In particular, the Crown contends that LePoidvin, a

prospect with the Nomads chapter of the HAMC, and Alcantara, a prospect with the Edmonton

chapter, were the focus of the dispute, and that Knapczyk was Alcantara’s sponsor while Cantrill

was LePoidvin’s sponsor. The spoils of the dispute were the Caines operation. The Crown

maintains that in the time period reflected in these calls, the enforcement agreement changed from

the Nomads to the Edmonton chapter.

[731] Alcantara argues that in many of the conversations in which he and Caines discussed

meeting (Tabs 1, 41, 42, 43, 51, 109, 150, 210, 340, 343), there was no discussion about money or

payment and there is no surveillance or search evidence showing payment. Further, Alcantara

points to the following intercepted communications that he argues negate the Crown’s theory. He

submits that at Tab 3, LePoidvin confirmed: “...you didn’t go to them right?” Caines agreed that

he had not. At Tab 57, King said to Alcantara that he got “a piece of the action,” which Alcantara

says is inconsistent with an exclusivity agreement. He suggests that the conversation at Tab 58

about Gus having permission to “be up there” is inconsistent with an exclusivity agreement and

Caines’ unilateral change in the schedule is inconsistent with the Crown theory of the reputation

of the HAMC. Alcantara suggests that in the call at Tab 195, Caines’ discussion of assaulting a

competing drug dealer is inconsistent with the Crown theory of out-sourcing enforcement and at

Tab 214, the discussion of beating up Matty, who “burned” Penton, is inconsistent with any

protection or exclusivity agreement. At Tab 220, Marche apologized for buying cocaine from a

competitor. Alcantara contends this again negates the Crown theory of exclusivity. In the

November 2005 calls at Tabs 291 and 296, Caines encouraged Tarrant to go buy a gun and offered

to help kick in a door. Alcantara submits they were taking matters into their own hands, which is

inconsistent with an enforcement agreement.

[732] Alcantara then points to a number of calls he says are inconsistent with the theory of a

changeover from the Nomads to the HAMC. He argues that at Tab 12, where he discussed a “big

dinner,” the Crown’s theory that this was a meeting with Caines and LePoidvin’s group about a

changeover from the Nomads to the Edmonton chapter of the HAMC is mere speculation based

on further conjecture of a pre-existing protection agreement. Alcantara suggests that while it may

be possible to infer that the meeting with “Buddy” at the “house” referred to by him in

conversation with Knapczyk at Tab 15 was about a disagreement, anything more is conjecture. He

submits that the call at Tab 16, which the Crown suggests is him telling Knapczyk how the

exclusivity agreement “came from the beginning,” could not be a correct interpretation since

Cantrill already would have known the origins of the agreement. As to Tab 18, the Crown’s theory

is that the meeting is about the change, but Alcantara contends it was about him, and anything else

is speculation.

2012 ABQB 521 (CanLII)

Page: 166

[733] Knapczyk argues that the calls at Tabs 1 to 18 can equally be interpreted as him becoming

involved in a dispute which Alcantara had with the Nomads chapter. He contends that there is no

evidence he was involved in the underlying issue (the change in the group associated with the

alleged protection agreement with Caines) giving rise to the dispute. He submits that the evidence

is consistent with him looking out for his “prospect” in terms of Alcantara’s dealings with Caines

and any conflict with the Nomads.

(b) Analysis

[734] The calls found at Tabs 1 to 18 occurred between Wednesday, August 24, 2005 at 10:46

a.m. and Thursday, August 25 at 4:02 p.m. In the call at Tab 3, Caines, the head of a cocaine

trafficking conspiracy, reported to Alcantara, a prospect with the Edmonton chapter of the

HAMC, that Lee (LePoidvin), a prospect with the Nomads, had called him, threatening that

“things are going to get changed back” and seeking assurances that Caines “didn’t go to them;”

that is, to Alcantara and others (“them”). Alcantara told Caines not to worry about it. Caines said

he responded to LePoidvin: “... well you guys figure it out... right now I’m doing what I’m told.”

Alcantara responded: “That’s what you do.”

[735] The context of the call at Tab 4 is that Caines was reporting to Alcantara that LePoidvin

had called back and wanted to go for a drink. Alcantara told Caines he had been told not to and

“that’s how you’re going to keep it.” He said: “The guy’s not even supposed to talk to you... We

told him not to.” Alcantara advised Caines that LePoidvin was not the guy to talk to “out of

them,” by which I take him to have meant the Nomads. Alcantara was upset and yelling by that

point in the conversation. He told Caines that LePoidvin was “not ah thing... It’s like me” (a

prospect). He said LePoidvin knew who to talk to and it was not Caines, and that Caines should

tell LePoidvin “when buddy will be back.” In my view, Alcantara’s statements here show that he

had the authority to tell Caines how to deal with the problem of alliance presented by LePoidvin,

and that there was a chain of command to deal with the issue of alliance with Caines, which I take

to be within the hierarchy of the two chapters of the HAMC. It is clear from Tab 6 that “buddy”

was Knapczyk, who was going away.

[736] In the call at Tab 5, Alcantara called Caines to check if there were more problems. He told

Caines: “...when the one ...that I trust...I’m gonna listen to what he says before what anyone else

says.” Alcantara confirmed that “he” was, “...the one guy that you trust the most, right?” He

encouraged Caines to trust “him” too. Within the hour, Knapczyk called (Tab 6) and Alcantara

said his ears must have been ringing. Given Alcantara’s reference in the call at Tab 4 to “when

buddy will be back” and Knapczyk mentioning in the call at Tab 6 that he was leaving at the

wrong time, I conclude that Alcantara was speaking about Knapczyk in his conversation with

Caines as the one he and Caines trusted the most and that “they” should be talking to. Alcantara

offered in the call at Tab 6 to keep Caines entertained.

[737] In the call at Tab 8, Caines advised Alcantara that he would go for that beer. Alcantara told

him not to answer any questions. Caines said he would tell LePoidvin “you guys

2012 ABQB 521 (CanLII)

Page: 167

decide...your...selves what the fuck’s goin’ on.” Alcantara approved that approach, again showing

he had both an interest in the outcome of the Caines - LePoidvin talk, and authority to direct how

Caines should deal with the situation.

[738] The call at Tab 9 confirms that Alcantara was telling Caines how to manage LePoidvin

and pressing Caines to listen to “people you know and trust,” in this context, him and Knapczyk.

[739] In the call at Tab 12, at 2:14 a.m. on August 25, 2005, Alcantara reported to Knapczyk,

that Caines (“Buddy”) had said he was doing what he was told and Sarge (Cantrill, a probable

member of the HAMC, possibly with the Nomad chapter) “was pretty choked.” Knapczyk advised

he would deal with it when he got back. In my view, this conversation confirms that Alcantara had

a subservient relationship to Knapczyk and that it was Knapczyk who would deal with the

situation on his return. The situation he was talking about was the question of who would have the

alliance with Caines, who was running a cocaine trafficking business in Fort McMurray. This

calls again shows that both Alcantara and Knapczyk had an interest in the resolution of this

question.

[740] In the call at Tab 13, Knapczyk advised Alcantara to have Cantrill call him, then to give

him a call and see what he wanted. Alcantara and Cantrill subsequently agreed to meet at the

HAMC clubhouse. In the call at Tab 16, Alcantara advised Knapczyk he would tell Cantrill “how

things became,” again confirming his involvement in the question of who would be allied with

Caines. They confirmed their relationship of HAMC member (Knapczyk) and prospect

(Alcantara). Alcantara said he would “take a lump” if necessary, by which I take him to have

meant that he would accept punishment if he was in the wrong, given his “respect for the patch.”

This shows that the HAMC chapters were involved in the matter at issue; that is, the alliance with

Caines.

[741] In the call at Tab 18, Knapczyk asked if he should come home, indicating the degree of

importance he attached to the dispute being played out between Alcantara and himself on the one

hand, and LePoidvin and Cantrill on the other, or between the Edmonton chapter and the Nomads

chapter of the HAMC, over the alliance with the Caines operation. Alcantara said he would leave

it up to “[g]reater powers to decide,” again showing that he played a lesser role commensurate

with his position as a HAMC prospect.

2. Tabs 19 to 31

(a) Arguments of the parties

[742] The Crown contends that the discussion at Tab 21 concerned the schedule of chores at the

HAMC clubhouse in Edmonton, consistent with the evidence of Mr. Lemieux that such menial

tasks at the clubhouse are done by the prospects. It says the fact that Alcantara was complaining

about the chores to Saunders and the reference in the call to Kozzi being on the schedule as well,

is evidence that Saunders and Kossowan were part of the HAMC organization. It argues that this

2012 ABQB 521 (CanLII)

Page: 168

is reinforced by the mention of Tony and Kozzi in the call at Tab 23, in which Lanski and

Alcantara were discussing an upcoming HAMC run.

[743] The Crown relies on Tab 25, in which Caines asked Alcantara what was going on, and

Alcantara response that he hadn’t heard yet as relevant to the changeover from the Nomads to the

Edmonton chapter of the HAMC. The Crown argues this shows that Alcantara was not in control

of the issue; that it was someone at a higher level who would decide. The Crown maintains that

the call at Tab 26 was a continuation of the same discussion and the call at Tab 27 is further

confirmation of this course of events, now discussed by Alcantara and Knapczyk. It says that in

the call at Tab 28, Caines was looking for an update and Alcantara answering “Yes” to Caines’

question: “So did those guys have dinner today?”

[744] The Crown argues that the call at Tab 31 is important as it confirms that the issue being

resolved was control over an exclusivity agreement. The Crown submits that it was guarded and

in code, and that Alcantara was indicating a desire to speak in person, suggesting the subject was

illegal in nature. The Crown says that on hearing things would stay the same as since the change,

Caines advised Alcantara he had problems that need to be solved; the is, the presence of Webb in

Fort McMurray. Caines asked Alcantara to find out what the terms of the agreement were, and

made reference to wanting to do it on his own. The Crown points out that the reference to the

supper is in conjunction with the question of whether things would remain the same since the

change, showing that the “supper” was code for a meeting. The Crown suggests that Caines’

“waiting” involved waiting for the problem between the two HAMC chapters to be solved.

[745] Alcantara argues that there is no evidence that the reference to “Webb” in the call at Tab

31 was to Chad Webber (Marche gave evidence about a Chad who was another cocaine trafficker

in Fort McMurray) and there could not have been an exclusivity agreement given that Caines did

not know the terms and Caines was prepared to act on his own.

[746] Knapczyk suggests an interpretation of the calls at Tabs 18-22 which is consistent with his

theory that the “change” involved only Alcantara and the Nomads chapter. He submits that to the

extent there is any evidence against him, it should be interpreted as only showing he was involved

in trying to resolve a dispute as Alcantara’s champion.

[747] As to the call at Tab 31, which the Crown alleges demonstrates the protection agreement,

Knapczyk questions why Caines would have paid for a protection agreement if he was willing and

able to take care of things himself. He too asks how there could be an “agreement” when Caines

did not know the terms.

(b) Analysis

[748] The calls at Tabs 19 to 24 provide insight into Alcantara’s day-to-day activities. He spoke

about seeking advice from Lanski concerning talking to “Sarge,” who I accept was Cantrill, a

probable member of the HAMC, possibly of the Nomads chapter. He spoke to Saunders about the

2012 ABQB 521 (CanLII)

Page: 169

schedule of tasks at the HAMC Edmonton clubhouse. He and Saunders were both HAMC

prospects at the time.

[749] In the call at Tab 25, Caines asked Alcantara: “What’s going on to, what’s going on to...”

Alcantara responded: “I haven’t heard yet...” In my view, this conversation related to the

changeover of the alliance of the Caines drug business in Fort McMurray from the Nomads to the

Edmonton chapter of the HAMC. Alcantara’s words show that he was not the decision-maker; he

was awaiting word from others. In the context of the organization to which he belonged, and the

ample evidence of its hierarchical structure, I interpret this scenario as Alcantara waiting for word

on the outcome of discussions between superiors in the HAMC. The call at Tab 26, a continuation

of the same discussion, is further confirmation of this interpretation. Alcantara said: “No one’s

called you?” Caines answered: “No” Alcantara said: “Oh, okay. Nothin’ yet I guess.”

[750] In the conversation at Tab 27, Knapczyk phoned Alcantara to determine if he had talked to

“Big Head,” who I conclude was Caines. Alcantara asked if Knapczyk had spoken with anyone as

Caines wanted to know what he was “supposed to do.” Alcantara asked Knapczyk to tell him as

soon as he knew. This, together with the ample evidence of the superior/inferior relationship

between Alcantara as prospect and Knapczyk as HAMC member, shows Knapczyk was part of

the decision-making as to which group would be in alliance with Caines. Caines was again

looking for an update in the call at Tab 28, on Monday, August 29, 2005, when he asked: “So did

those guys have dinner today?” Alcantara affirmed that they had, which I take it to mean that the

two sides had met to discuss the issue of which group would be allied with the Caines cocaine

business.

[751] At this stage, the nature of the alliance that the HAMC Edmonton chapter would have with

the Caines’ cocaine trafficking business is not yet evident, but begins to be clear in the next call,

at Tab 31. Caines asked if they went for supper. Alcantara says they had, although he had missed

the meeting. Alcantara told Caines it was “staying the same since the last time” and that was all he

needed to know for now. In my view, Alcantara was conveying to Caines that his group, the

Edmonton HAMC chapter, would be involved with Caines. Immediately on being advised of this,

Caines said he needed a problem solved, he needed Webb removed. When Alcantara asked him if

it could wait, Caines said he wanted to “take care of this guy.” He then inquired about the terms of

the arrangement. The role of Alcantara’s group is confirmed in this call. It was to deal with

problems Caines had in relation to his cocaine trafficking business in Fort McMurray, problems

such as Webb.

3. Tabs 38-65

(a) Arguments of the parties

[752] The Crown argues that in the call at Tab 38, made on September 1, 2005, Alcantara

adverted to the payment schedule (further demonstrated in Tab 58). Caines called Alcantara and

said he would not make it there that day. Alcantara pointed out: “Well you’re gonna overlap

2012 ABQB 521 (CanLII)

Page: 170

buddy. Fuckin’ Monday’s rolling around quick.” Caines said he would see him tomorrow for sure.

[753] The Crown argues that the call at Tab 40 confirms the exclusivity agreement, as Alcantara

said LePoidvin called him a thief, which the Crown says was a reference to his loss of the

exclusivity agreement. Alcantara also said that Sarge, who “gave him shit” (Cantrill), was coming

to meet with him, prompting Knapczyk to offer to come as well. The Crown contends this shows

Knapczyk’s interest in the changeover.

[754] The Crown relies on the call at Tab 44, in which Knapczyk referred to Caines, who

Alcantara was then with, as “buddy,” evidencing the fact he knew Caines by the date of this call,

September 3, 2005.

[755] The Crown relies on the call at Tab 57, in which King indicated that “you guys said what

you had to and got a piece of the action right,” and Alcantara saying, “Yeah,” as confirmatory of

this arrangement.

[756] The Crown relies on the call at Tab 58 as evidence of the exclusivity arrangement now

being with the HAMC Edmonton chapter. It says the call is important in a number of respects.

First, the Crown submits that Caines was asking whether Gus was with the HAMC Edmonton

chapter, and was telling Alcantara was in Fort McMurray to traffic in cocaine. Alcantara asked if

he was in the “club,” part of the “family;” that is, with the HAMC. The Crown contends that one

of Caines’ guys took a phone belonging to Gus, a phone being a valuable commodity in the drug

trade as it contains customer lists. The Crown argues this call shows that Alcantara was in the

business of granting permission to people to traffic cocaine in Fort McMurray.

[757] Second, the Crown argues that the call makes it clear there was a payment schedule that

Caines was on to pay for the services of the HAMC Edmonton chapter. The Crown says this call

relates back to the call at Tab 38, where Alcantara and Caines talked, inferentially, about payment,

and Alcantara told Caines that Monday was rolling around pretty quick.

[758] Third, the Crown argues that the “schedule” was for Caines to make a monetary payment

to Alcantara, who was responsible for collection on behalf of his group, the HAMC Edmonton

chapter. It suggest that the “prorate” referred to the amount Caines had to make up for being four

days late.

[759] Fourth, the Crown argues that Caines must have been receiving services for payment. It

maintains that other evidence shows that Caines obtained a exclusivity/protection guarantee for

the payments to the HAMC.

[760] Fifth, the Crown argues that Alcantara showed in this call he was responsible to collect

from Caines, and that late payments made him look bad, showing he was involved in the

agreement.

2012 ABQB 521 (CanLII)

Page: 171

[761] Sixth, the Crown argues that the words used by Alcantara show others were watching.

Alcantara said he was told to get on Caines and asked if anybody okayed the change, showing

others were involved and only they could approve a change to the agreement.

[762] Seventh, the Crown argues that Caines confirmed in the call he would deliver the next

payment on the upcoming Thursday, September 15, 2005, which coordinates with the ensuing six

calls (Tabs 60, 61, 62, 63, 64, 65) and surveillance.

[763] Eight, the Crown relies on Alcantara’s comments: “If we’re gonna be the new what’s it

called then fuckin’ if things are messin’ up it’s gonna fuckin’ make me look bad right? Both of

us.” It argues these words show that his group was the “new” party to the agreement, confirming

the change, and that he was not alone, implying involvement of his group, the HAMC Edmonton

chapter.

[764] The Crown also refers to Tab 59, in which it is clear Alcantara was going to meet

LePoidvin, who was not happy with the change.

[765] Alcantara responds to the Crown argument respecting Tab 40 by relying on Mr. Lemieux’s

evidence that a prospect would not have such authority and submits that, in any event, the

Crown’s interpretation is speculative. As to Tab 56, concerning “the guys” who “dealt with J.C.,”

Alcantara contends that the Crown suggestion that this reference is to the Nomads also is

speculative, as is the Crown interpretation of Tab 54. As to the calls that discussed the schedule

(Tabs 38, 58), Alcantara argues that it is speculation to suggest that this was a payment schedule

for a protection agreement. Tabs 60 to 65 deal with the intercepts of Caines and Alcantara for

Alcantara to pick up a package from Flight. Alcantara argues it is speculation to suggest it is a

payment for the protection agreement. Similarly, he argues there is no evidence that the

McDonald seizure affected the payment schedule for a protection agreement.

[766] Knapczyk argues that the calls at Tabs 39 and 40 are supportive of a finding that his only

role was to “protect and support” Alcantara, and that the change involved Alcantara and not

Knapczyk or others at the Edmonton chapter. He says that Mr. Lemieux’s evidence would support

Knapczyk’s intervention only if the “guy that gave me [Alcantara] shit” was Cantrill, and if

Cantrill was a full member of the Nomad chapter.

[767] Knapczyk points out that in the calls at Tabs 41 to 50, there was no mention of money or

payment.

[768] Knapczyk submits that the evidence suggests Alcantara was selling drugs, unrelated to

Knapczyk or the HAMC, as evidenced by the phone calls from Caines requesting joints of

marijuana and Alcantara’s arrest on two warrants - Koker A and B. He contends that a “piece” of

the action does not denote exclusivity. Knapczyk also submits that the “big loss” referenced in the

September 10, 2005 phone call at Tab 57 could not be the McDonald seizure as that occurred on

September 15, 2005.

2012 ABQB 521 (CanLII)

Page: 172

[769] In terms of the call at Tab 58, Knapczyk argues that the presence of “Gus” in Fort

McMurray belies the idea of exclusivity. He says the schedule evidence is vague and inconclusive

and that this shows Caines was not the least bit afraid in the situation.

[770] Knapczyk submits that in the call at Tab 59, the issue with “Lee” involved only Alcantara,

with him in a support role. As to the reference to a “schedule” in the call at Tab 68, Knapczyk

points out that “schedule” could simply have referred to drug trafficking.

(b) Analysis

[771] In the call at Tab 38, made right after the arrangement between Alcantara and Caines was

confirmed in the call at Tab 31, Alcantara asked to meet with Caines for a purpose. He said: “Well

you’re gonna overlap buddy. Fuckin’ Monday’s rolling around quick.” This call takes on meaning

in conjunction with the call at Tab 58, in which Alcantara told Caines he must stay on schedule,

and Caines said he had moved the schedule “from Monday to Thursday.”

[772] In the call at Tab 39, Cantrill told Alcantara that he might pop down to the HAMC

clubhouse, presumably to talk with Alcantara.

[773] In the call at Tab 40, Alcantara told Knapczyk he had just come back from Showgirls and

“the same guy” as was “beaking” at him before called him a thief. I agree with the Crown that this

was a reference to LePoidvin being unhappy with Alcantara, and I accept that the issue between

them was which group would be assisting the Caines operation, hence the reference to “theft.”

Alcantara said he was at the “house.” He spoke of the “guy who gave me shit ... before ...comin’

down here.” I also agree with the Crown that this reference was to Cantrill. His statement

prompted Knapczyk to say: “I’m on my way.” I agree that Knapczyk’s reaction was that of a

person involved in the underlying issue, rather than one simply involved in dispute resolution.

[774] The calls at Tabs 41, 42, 43, and 44 show that Caines and Alcantara met. In the call at Tab

46, Alcantara confirmed that he had been there when LePoidvin called the prospects or perhaps

just him “bitches,”and that he wanted to fight him but his member; that is, Knapczyk, had said

“no, not here.”

[775] In the call at Tab 47, Caines asked Alcantara to arrange a meeting for him with the guy he

could not get ahold of the other night. I take it he meant Knapczyk given that in the call at Tab 49,

Alcantara told Knapczyk that the guy who had come by the house that one time, the guy

Knapczyk wanted Alcantara to talk to, “Fuckin’ Head” (Caines), wanted to meet with him.

Alcantara told Caines where to meet Knapczyk in the call at Tab 50.

[776] The call at Tab 56, between Alcantara and King on September 6, 2005, provides further

evidence of the changeover from the Nomads to Alcantara’s group being allied with Caines’

operation. Alcantara asked King if Paul had talked to him. King said: “Those guys...from down

there ...the ones that used to deal with J.C.?” Alcantara said: “Yeah...they said they were hearing

stuff.” Based on the evidence of Det. Greaves showing that Paul Sukys was a prospect with the

2012 ABQB 521 (CanLII)

Page: 173

Nomads on April 17, 2005 and a member by June 2006, given that Alcantara confirmed that the

“Paul” in this conversation was “one of those guys from down there,” by which I infer he meant

Red Deer, and that he “used to deal with J.C.,” and given that Caines had Sukys’ name and

number in the contact list of his phone, I interpret the call as Alcantara acknowledging that the

Nomads used to work with Caines’ operation.

[777] In the call at Tab 57, King and Alcantara continued talking about who King was supposed

to call. Alcantara said he was a friend of King’s. Alcantara denied knowledge of what Paul

wanted to discuss, but said Paul would get in touch with King. They discussed what the subject of

the conversation might be. Alcantara speculated that it might stem from the past - “the big loss” -

or be about “... fat head ready to ...Tear it up and using your friends...”Alcantara asked if King had

heard what happened, and King said: “... you guys said what you had to say and you got a piece of

the action right?” Alcantara agreed. I interpret this conversation as an acknowledgment by

Alcantara that Caines had changed over to King’s friends; that is, the Alcantara group, as his

allies. Alcantara also agreed that he and his group had said what they had to say and gotten a piece

of the action. This is further confirmation that Alcantara and his group had gotten a part of

Caines’ business, the protection part, as already evidenced in the call at Tab 31.

[778] In the call at Tab 58, Caines asked Alcantara if “Gus” was a member of the HAMC.

Caines said that Gus indicated he had “permission from you guys to be up there.” Alcantara asked

if he was part of the “club” or part of the “family,” the implication being that if he was one of

them, if was ok. This exchange, in particular Alcantara’s question, proves that it was the HAMC

which was doling out permission to be in Fort McMurray. Alcantara agreed to see if he can find

out. In this exchange, Alcantara confirmed he was in a position to determine if Gus was part of the

“family” and had permission to be “there.” Given that it was Caines asking the question, the

permission related to being in Fort McMurray and taking part in the cocaine trafficking business.

[779] Next, Alcantara told Caines he was supposed to get on Caines about the schedule, he had

to stay on schedule. If he did not, it would make them both look bad. I interpret this to mean a

schedule of payment for services rendered by Alcantara and his group (the Edmonton HAMC) to

the Caines’ trafficking operation. Alcantara was concerned about them looking bad to others.

Given that the Gus exchange ties the question of permission to the HAMC, Edmonton chapter, I

infer that Alcantara was told to get on Caines about the schedule by his superiors in the HAMC.

Several conversations show that Alcantara was answering to superiors in his group. In this call, he

said: “I already fuckin’ been told.” This confirms he was not alone in assisting the Caines

organization. He was answerable to the group and eager to please them, commensurate with his

status as a prospect within the hierarchy. I infer that Alcantara was talking about looking bad to

his chapter, in particular Knapczyk, given his obsequious attitude towards Knapczyk in their

respective roles as prospect and member.

[780] Caines had changed the schedule from Monday to Thursday (the call at Tab 38 shows the

schedule was formerly Monday). Alcantara asked if anybody okayed the change, again showing

that others were in charge. Alcantara told Caines he had to stay on schedule, “do the prorate.”

Caines indicated they would have to have another “sit down;” that is, a meeting. I infer that “do

2012 ABQB 521 (CanLII)

Page: 174

the prorate” refers to paying the proportionate additional amount to cover off the four extra days

between Monday and Thursday. The evidence suggests it was payment for services rendered,

particularly as the conversation unfolded, making reference to Alcantara’s group being the “new”

ones. I have already found, based on Alcantara’s accession to the statements in Tab 31, that his

group was providing protection to the Caines cocaine trafficking operation.

[781] The follow up to the call at Tab 58 was Caines meeting the schedule by sending a package

to Alcantara with Flight, as evidenced by the calls at Tabs 60 and following, as well as

surveillance.

[782] In the call at Tab 59, it is apparent Alcantara was going to meet LePoidvin. Knapczyk

offered to go with him, again showing the two of them were in this dispute with LePoidvin (of the

HAMC Nomads) together. In the call at Tab 60 on Thursday, September 15, 2005, Alcantara

called Caines and asked if he would be in town. Caines’ reply was that his “guy” would be later.

Alcantara said to tell him to call. In the call at Tab 61, Caines told Alcantara to stop by and see his

“old man,” that is, Caines Sr. Flight called Alcantara (Tab 62) and said he had a little package for

him. Alcantara then went to meet with Flight. Alcantara was observed approaching the rear door

of Flight’s apartment building. He had nothing in his hands at the time. He appeared to be

“engaging” someone at the rear door. Shortly after that, he returned alone to the vehicle carrying a

white plastic bag, which appeared to have something in it. He then went to the HAMC Fort Road

clubhouse, and finally returned to his own residence, empty-handed.

[783] In the context of the finding that a conspiracy to sell cocaine in Fort McMurray was

underway, that Alcantara and his group were providing services to Caines that previously had

been provided by LePoidvin and his group, that Alcantara had sought a meeting with Caines but

instead agreed to receive a package from Caines through Flight, after Alcantara had insisted

Caines stay on schedule, I conclude that Alcantara was receiving money from Caines for the

services provided and that he took the package with money to the HAMC clubhouse on Fort

Road.

4. Tabs 66 to 68

(a) Arguments of the parties

[784] The Crown points out that the payment from Caines through Flight to Alcantara was made

on Thursday, September, 15, 2005. It says the next payment would have been on Thursday,

September 22, 2005. It says the call at Tab 67 refers to the drug seizure at McDonald’s residence,

when two one-kilogram bricks of cocaine were seized along with additional cocaine, money and

other items. The Crown notes that in the call at Tab 68, on Monday, September 19, 2005,

Alcantara asked Caines: “Are you gonna stay on schedule?” Caines said: “Fuck no.” The Crown

argues this was a reminder on the Monday before the next scheduled payment, Thursday,

September 22, and shows the payments were on a weekly basis, every Thursday.

2012 ABQB 521 (CanLII)

Page: 175

[785] Alcantara and Knapczyk argue that the evidence suggests Caines’ income was based on

cocaine sales so his income would have been affected by the seizures regardless of any alleged

schedule. Further, the call does not provide evidence of payments for an exclusivity agreement.

(b) Analysis

[786] In the call at Tab 66, Alcantara voiced consternation at the news of the McDonald seizure.

In the call at Tab 67, Alcantara asked Caines what had happened to McDonald. Caines answered:

“Big time... I had - they kicked his door in.” Caines’ use of the pronoun “I” suggests the seizure

affected him. Caines told Alcantara: “He had three or four of ‘em.” Alcantara started to ask: “You

still...,” by which I take him to have meant was Caines still on schedule. Caines said: “Not good

though.” He said he would call when he came through.

[787] Two days later, in the call at Tab 68, Alcantara asked if Caines was still on schedule, and

Caines responded: “Fuck no.” From this, it is clear that Alcantara was in charge of seeing that

Caines made his payments on schedule. Caines wanted “one of you” to come meet with him

because he was “done,” suggesting that Caines was dealing with more than just Alcantara, that the

loss was affecting him and them. He asked Alcantara to refer to the news for the explanation as to

why he was not on schedule.

5. Tab 73 to 85

(a) Arguments of the parties

[788] Alcantara submits that the call at Tab 80 that refers to the “purple shirt” likely does not

refer to cocaine, but rather marijuana or percocet that Alcantara provided Caines. He points out

that others sold cocaine to Caines, such as the Sattars and Van Den Hurk, while other calls seem

to show that Alcantara was a supplier of marijuana to Caines (Tabs 26, 51).

[789] Knapczyk argues that Tab 73, a long call between himself and Alcantara, shows him

meeting with Cantrill concerning the conduct of his prospect; and shows ongoing and numerous

issues between Alcantara and Cantrill and also between the Edmonton and Nomads chapters.

[790] Knapczyk submits that the calls at Tabs 76-80 concern social arrangements after the

Alcantara wedding. At Tabs 81 and 82, Alcantara was describing for Knapczyk a fight at a strip

club between LePoidvin and Caines. Knapczyk contends these calls show Caines taking matters

into his own hands rather than having a protection agreement with him and Alcantara. He says his

comment that he was fed up with “babysitting” supports the idea that he stepped in to prevent

problems rather than was a party to a protection agreement. He says the call at Tab 84, in which

Caines appears to ask Alcantara for help with “the bald guy,” does not involve him. He submits

the term “Baldy” could refer to other people with a bald head, and that “lawn mower” and “lawn”

might refer to marijuana. Knapczyk says that the “headaches” mentioned in the call at Tab 86

about which Alcantara wanted to speak to him may have been caused by issues or problems other

2012 ABQB 521 (CanLII)

Page: 176

than Caines, as Alcantara had several. He notes there were 16 other calls on Alcantara’s phone

between Tabs 84 and 85.

(b) Analysis

[791] In a call between Alcantara and Knapczyk on September 29, 3005 (Tab 73), Knapczyk

told Alcantara to mind his own business, not “to set guys straight” until after he was “in;” that is ,

a full member of the HAMC. Knapczyk advised Alcantara that he was being blamed for things

like the “Lee thing” (the LePoidvin conflict). This statement amounts to an admission by

Knapczyk that the conflict between LePoidvin and Alcantara involved the HAMC chapters.

[792] In a discussion about the HAMC in the call at Tab 74, Knapczyk told Alcantara that “we

taking on those guys;” that is, the Edmonton chapter taking on the Nomads, “ has ruined what we

had in this province.” This is further confirmation that the previously discussed LePoidvin issue

was a conflict between the two chapters, an admission that indeed the HAMC Edmonton chapter

had taken on the Nomads. The evidence derived from the statements made in calls between

Caines and Alcantara confirms the inference drawn above that the conflict was between the two

chapters over the rights to provide enforcement services to the Caines cocaine trafficking

business.

[793] The calls at Tabs 81-84 concerned a fight between Caines and LePoidvin over LePoidvin

calling Caines a liar. Alcantara gave Knapczyk a play-by-play description of what was going on,

suggesting that both were interested in the situation and the outcome.

[794] A dispute between Caines and LePoidvin began in late August 2005, when LePoidvin

expressed anger to Caines concerning the changeover of the alliance with Caines from LePoidvin

(and the Nomads) to Alcantara (and the HAMC Edmonton chapter), as shown by the call at Tab 3.

In my view, the underlying dispute between LePoidvin and Caines related to this matter, hence the

interest that Alcantara and Knapczyk took in its outcome.

6. Tabs 84, 86, 129

(a) Arguments of the parties

[795] The Crown refers to the calls it says evidence the role of Alcantara in protecting the

Caines’ operation: the removal of Chad Webber (Tab 31); the removal of the “bald guy” (Tabs

84, 86, 129); the problem of Maleek undercutting the Caines operation (Tabs 411, 412, 413); the

protection of the Caines operation from aggression (Tabs 367, 369); the protection of Caines’

operation from theft (Tabs 372, 374, 376, 378, 380, 387, 389, 391, 393, 399, 460); the protection

of Caines’ operation from aggression (Tabs 418, 419, 422, 424, 425, 429, 430, 431, 432, 433,

439-460), and payment by Caines to Alcantara (Tabs 38, 41-44, 60-65, 68, 70, 208).

[796] The Crown says the call at Tab 84, in which Caines insisted that Alcantara communicate

he understood what was being asked, was a guarded call whereby Caines was asking Alcantara to

2012 ABQB 521 (CanLII)

Page: 177

have the “bald guy” removed. The Crown maintains that the bald guy was Sekulich. The Crown

alleges that in Tab 85, Alcantara wanted to talk to Knapczyk about that matter. Knapczyk told him

he would meet him (the subject being the removal of the bald guy). The Crown argues this series

of calls implicates Knapczyk in the enforcement agreement

[797] Alcantara argues that the Crown’s interpretation of the intercepted calls at Tabs 86, 87-90,

70, 208, 456-459, is all based on speculation.

[798] Knapczyk says that in the call at Tab 87, where Alcantara and Caines discussed Caines’

other telephone number, the suggestion of illegal purpose does not evidence an exclusivity

agreement.

[799] Knapczyk submits that the texts at Tab 129 are ambiguous and it is speculative to suggest

Caines’ reference to “the boys” meant the HAMC, and that “Baldy” was a reference to Sekulich.

(b) Analysis

[800] At Tab 84, Caines explained to Alcantara that the guy that “pissed him off last week,” the

guy “with the lawnmower,” the “bald guy,” had not left. Alcantara confirmed that he understand

what Caines was saying. Caines told him the guy they were discussing “hurt” one of his friends,

and Alcantara again acknowledged he understood by saying “Okay.” In my view, Alcantara in this

call was agreeing to be involved in the job of removing this problem for Caines. I agree with the

Crown that “lawn mower” in the context of this cocaine trafficking business was a reference to

unfairly taking someone else’s business; in ordinary parlance, “mowing someone’s grass.”

[801] The following day, in the call at Tab 85, Knapczyk said to let “him” know he would not be

there. Alcantara expressed his disappointment. Given the sequence, I deduce that Knapczyk was

to go to Fort McMurray to deal with Caines problems, and that Alcantara was his go-between,

insulating Knapczyk from direct contact. Alcantara requested that they meet, and Knapczyk

agreed. Alcantara wanted to discuss the matter in person, and I deduce it was a discussion they did

not want anyone to hear.

[802] A few minutes later, in the call at Tab 86, Alcantara said he had more headaches, which in

context I find related to Caines’ problems, one of which was the presence of the “bald guy.” I find

this call shows Alcantara’s involvement with Caines problems, and Knapczyk’s important role in

getting the problems solved. Alcantara appeared to be agitated about his “headaches.” I infer that

the previous call from Caines described one such headache. Alcantara wanted to discuss the

headaches with Knapczyk, who responded to the urgency of the call by agreeing to meet

Alcantara.

2012 ABQB 521 (CanLII)

Page: 178

7. Tab 129

(a) Arguments of the parties

[803] The Crown argues, and I accept on the evidence, that the text at Tab 129 was between

Caines and Cardinal. In the context of the preceding calls about the removal of the “bald guy,” the

Crown argues this text too referred to Sekulich. The Crown says that the text at Tab 129 confirms

the interpretation of the call at Tab 84 as Caines asking Alcantara to have Sekulich removed. In

the text at Tab 129, Caines told Cardinal he had asked “the boys” to have him removed from Fort

McMurray; that is, as part of the exclusivity agreement.

[804] Alcantara and Knapczyk argue that the Crown’s suggestion that “Baldy” was Sekulich and

that “the boys” were members of the HAMC, is speculation. They say the “boys” is a reference

used to describe a group of males, such as Cardinal referring to the CD boys, meaning the Crazy

Dragons group. Another use of the term is found in the call at Tab 291, and the Crown does not

allege that the reference there was to the HAMC. They note that in the call at Tab 367, Caines

uses the term to refer to the Sattars.

(b) Analysis

[805] Cardinal was one of Caines’ distributors. The text at Tab 129 provides evidence that

Caines had asked the “boys” to tell “Baldy” to leave. I deduce, given the backdrop of the previous

calls, the “boys” were Alcantara and his cohorts from the HAMC Edmonton chapter, the people

who were trouble shooting the problems that interfered with Caines’ cocaine trafficking business.

I further conclude that “Baldy” was a drug dealer who had been competing with Caines’ group,

but was someone who Cardinal wanted to use as one of his dealers. That individual may have

been Sekulich.

8. Tabs 175, 190, 195, 197

(a) Arguments of the parties

[806] Alcantara argues that in the call at Tab 197, King was relating a past event to Caines and

not stating something in furtherance of the alleged conspiracy. Accordingly, King’s statements to

Caines are not admissible against Alcantara.

[807] Knapczyk argues that at Tab 175, Penton told Caines he was “driving up to Mac to smash

some fucking heads.” He says this suggests that one of Caines’ regular buyers was taking care of

violence or protection himself, and this is inconsistent with an exclusivity agreement. He contends

the call at Tab 180 is also, since there was a discussion of buying cocaine from someone else.

[808] Tab 190 is a call between an unknown male and Caines, a discussion of threatened

violence because money was owed or to “get that fat fuckin’ Indian... back on the team.”

Knapczyk points out that the unknown male was calling from a number ascribed to Josh in

2012 ABQB 521 (CanLII)

Page: 179

Caines’ and Weiss’ phones. Knapczyk submits this was not Josh Penton, whose voice was

identified and who had a different phone number. It was someone providing services to Caines,

possibly the problem solver referred to by Marche.

[809] In the call at Tab 195 between Penton and Caines, there was a discussion of them

assaulting a person named “Mobily,” who Knapczyk argues must have been a competing drug

dealer getting a kilogram of cocaine for 27 ($27,000), again contrary to the Crown theory of an

exclusivity or protection agreement.

[810] The call at Tab 197 was between King and Caines, made on November 3, 2005. King

reported that he had a “huge fuckin’ meeting with a bunch of patches,” that everything was going

to be fine because explanations are made again. King said that “Little R” needs Caines to phone

him. Caines responded that “I’m not talking to them anymore.” Knapczyk suggests that this call

together with the calls at Tabs 194 and 200, suggest that if Caines did have a prior agreement, it

involved Keefe, who appears to have had a relationship with some Nomads, and not the Nomads

as a group.

(b) Analysis

[811] Several calls made in the month of November 2005 (Tabs 175, 190 and 195) show that

Caines did involve others within his organization in violence to effect his purposes. That fact does

not negate the role that has been shown to have been played by Alcantara and Knapczyk.

[812] In the call between Caines and King on November 3, 2005 (Tab 197). King told Caines

that he had met with a bunch of patches (members and/or prospects of the HAMC, according to

Mr. Lemieux’s evidence). He conveyed to Caines that explanations were made and Little R, by

whom I take him to have meant Alcantara, in “E Town,” a reference to Edmonton, “needs” Caines

to phone him “pretty quick.” Caines said he was not talking to them anymore. However, as the

calls at Tabs 208 and 210 show, Caines did continue to talk to “them;” that is, Alcantara and his

group.

[813] The statements in the call at Tab 197 were made by co-conspirators and are admissible

since King was reporting on a meeting he had attended with members of the HAMC in which

Caines had been discussed. As a result of the meeting, he was urging Caines to get ahold of

Alcantara, who was the front man with the Edmonton chapter of the HAMC, which had an

agreement to provide enforcement services to Caines. The statements in calls at Tabs 208 and 210

also were in furtherance of the conspiracy in that they revealed plans for Caines and Alcantara to

get together the day after the meeting of the “patches,” where Caines and Alcantara were the

subject of discussion.

2012 ABQB 521 (CanLII)

Page: 180

9. Tabs 214, 220, 235, 255, 256, 258, 272, 291

(a) Arguments of the parties

[814] Knapczyk suggests that in the call at Tab 208, when Alcantara asked Caines: “... don’t you

love me no more,” he was referring to payment for drugs, not protection, as the term “love” means

money.

[815] In Tab 214, Caines and Penton talked about beating people up. Knapczyk argues this is

further evidence negating an exclusivity agreement.

[816] Knapczyk submits that the call at Tab 220, where Marche apologized to Caines for buying

from another source, shows that no exclusivity agreement existed and that the calls at Tabs 235,

248, 250, 253, 255, 256 and 258, culminating in Caines being arrested in Red Deer with at least

$95,620, after passing through Edmonton, show the money was not destined for Alcantara and

Knapczyk.

[817] In the call at Tab 291, a November 16, 2005 call between Tarrant and Caines, Tarrant

indicated he was having trouble with some people. Caines told him to “go buy a gun.” Knapczyk

again argues this is inconsistent with a protection agreement, as is the call at Tab 296, where

Caines offered assistance to kick a door in.

(b) Analysis

[818] In the call at Tab 220, Marche apologized to Caines for going to someone else to buy

drugs, and explained that: “...we’ve been sitting in the weeds.” In my view, this call confirms the

Caines cocaine conspiracy was operating on the basis that those in the organization would sell

exclusively for Caines.

10. Tabs 305 to 369

(a) Arguments of the parties

[819] Alcantara points out that in the calls at Tabs 340 and 343, there was no discussion about

money. Further, the call at Tab 367 between King and Caines included a statement that was not

made in furtherance of an alleged conspiracy and, therefore, it is not admissible against him.

[820] Knapczyk acknowledges that in the calls at Tabs 305 to 311, Caines appeared to be afraid

of some HAMC members, although not Alcantara.

2012 ABQB 521 (CanLII)

Page: 181

(b) Analysis

[821] As Knapczyk argues, the call at Tab 367 between Caines and King indicates that a group

was in Fort McMurray threatening Caines’ people, although it is unclear who they were. King

suggested that he and Caines meet in 15 minutes.

11. Tabs 369 to 399

(a) Arguments of the parties

[822] Alcantara argues that in the call at Tab 387, Knapczyk and Caines were discussing a past

event; that these statements were not in furtherance of an alleged conspiracy and, therefore, they

are inadmissible against Alcantara. He takes the same position with respect to the call at Tab 398,

where Caines confirmed with Sattar that whatever “that” was, he already did “that;” and Tab 399,

where Caines supposedly related a past event to Sattar.

[823] In the call at Tab 369, made on December 8, 2005, Caines wanted to meet Knapczyk while

Alcantara was in the Bahamas for his honeymoon. Knapczyk argues the Crown is speculating

about this being about an exclusivity agreement when it was more likely a meeting with him over

Caines’ recurring problems with LePoidvin, a prospect with the Nomads. He says it would be

natural for Caines to want to discuss the problems with another HAMC member with whom he

was friendly.

[824] Knapczyk argues that in the call at Tab 371, where Caines told Sukys that someone took

something from him that belonged to someone else, that Caines owed for it, and asked Sukys to

fix it and call him back, there is no indication as to what was taken. In the call at Tab 372, Caines

told Knapczyk about the theft and Knapczyk told him to come talk to him. Knapczyk says the

calls at Tabs 374 and 376 show that they got together. Knapczyk said to Caines that he had told

him to go see some guys as “I couldn’t help you anymore.” Knapczyk asserts that if there was an

agreement, it was over. He argues that the purpose for his meeting with Mannarino has not been

established. In the call at Tab 378, Caines said his guys were freakin’ on him and asked if

Knapczyk had figured anything out. Knapczyk said he was working on it. Knapczyk argues that if

there was a concern that Lee would harm someone, it would make sense for Caines to discuss this

and the stolen item with his friend in the club.

[825] Knapczyk argues that the call at Tab 380 confirms that he did not like HAMC issues to be

discussed, and the call at Tab 383 shows that Caines had others helping with his problems. In the

call at Tab 387, Knapczyk asked Caines: “... that really did happen.” Knapczyk submits that this

shows he did not take Caines’ word at face value. He says the call at Tab 393 was part of the on-

going dialogue between himself and Caines. He advised Caines that he could not make it to Fort

McMurray due to truck problems. Knapczyk argues that Caines was disappointed because he was

afraid he would be beaten up if he went to the party at Showgirls. Knapczyk contends that his

asking if the stolen thing had been returned shows he was not intimately involved.

2012 ABQB 521 (CanLII)

Page: 182

[826] Tab 396 was a call between Kamran Sattar and Caines. Sattar asked if he “... got his thing

back.” Sattar said he needed payment. Caines indicated he needed to find Lee for that. Knapczyk

argues this call does not identify the thing that was missing. Concerning the call at Tab 397

between Alcantara and King, Knapczyk argues that if the issue at the meeting with Alcantara,

King, Mannarino, Keefe and Vos related to Lee’s conduct, it is consistent with Mr. Lemieux’s

evidence that he and Alcantara would be concerned about the conduct of another member of the

HAMC, given that the reputation of the HAMC could be affected. He says the context suggests it

was Caines who needed a loan. Knapczyk argues that if that is so, it does not make sense that he

would be paying a large amount of money for an exclusivity agreement.

[827] In the call at Tab 398, Caines and Kamran Sattar discussed the “thing.” Knapczyk suggests

this shows that Kamran Sattar had control over it. He notes the “thing” was not identified in the

intercepted communications at Tab 399.

(b) Analysis

[828] In a call at Tab 369 on December 8, 2005 at 15:27 p.m., Caines asked to meet with

Knapczyk and Knapczyk agreed.

[829] The call at Tab 371 was between Caines and Sukys, who was a prospect or member of the

Nomads at the time. Caines told Sukys that something had been taken from him and Caines owed

for it. He asked Sukys if he can fix that for him and call him back. I interpret this call to be about

the theft of drugs, although, as Knapczyk points out, there is no clear evidence of what was stolen.

Caines was in the business of trafficking in cocaine, and he said “it” belonged to someone else

and he owed for it. “It” may refer to a kilogram of cocaine. Marche testified that Caines told him

about a kilogram of cocaine having been stolen from one of his dealers. It would be consistent

with the theft having been of cocaine supplied by a third party that Caines still owed the third

party for the drugs. The fact that Caines was asking someone associated with the Nomads to fix

the problem suggests that it was also someone in the Nomads who took the drugs. Subsequent

calls support this view.

[830] Later on December 8, 2005, in the call at Tab 372, Caines reported the theft to Knapczyk.

He told Knapczyk that: “... the guy from outside the club that night” ( LePoidvin) took “something

that wasn’t his... one of my things.” Knapczyk’s response to Caines’ complaint about the theft, “

Oh ga, just come talk to me man,” is evidence that Knapczyk was involved in solving problems

for Caines in his cocaine business, in this case the problem being the theft of drugs.

[831] The fact that “it” had been taken from one of Caines’ “guys” supports the conclusion that

the “it” was cocaine, since Caines’ guys sold cocaine with and for him. Caines dealt in kilograms

of cocaine, as did his distributors. The theft occurred “up there,” which I take to mean Fort

McMurray, where Caines’ cocaine business operated.

[832] Knapczyk told Caines to come and talk to him. In the call at Tab 376, Knapczyk and

Caines contacted Mannarino, who agreed to meet them at Knapczyk’s house. I infer that

2012 ABQB 521 (CanLII)

Page: 183

Knapczyk was intervening to solve the theft problem for Caines. There is evidence that

Mannarino was associated with the HAMC, possibly with the Nomads.

[833] Knapczyk in the background of the call at Tab 376 was speaking to someone, presumably

Caines who he was with, about Caines being in debt. Contrary to Knapczyk’s argument

concerning this statement, I have concluded that Knapczyk shows here that he had helped Caines

in the past, but was threatening that he could no longer do so due to the fact that Caines was in

debt. He said: “... ‘cause I couldn’t help you anymore. Gotta get out of fuckin’ debt.” However,

succeeding calls show that he continued to help Caines.

[834] The next day, in the calls at Tabs 378 and 379, Caines reported to Knapczyk that his “guys

are freakin’ on him,” this in the aftermath of the theft that Knapczyk was trying to resolve.

Knapczyk responded by saying that he was “working on it” as they spoke. The content of this call

suggests it was the drug theft that Knapczyk was working on.

[835] These calls too show Knapczyk was part of the Caines conspiracy to sell cocaine in Fort

McMurray. They were not, as Knapczyk would argue, merely about him resolving Alcantara’s

internecine disputes with prospect LePoidvin. They were also about the underlying problem,

which was looking after interference with Caines’ supply of drugs, a theft of drugs that left Caines

owing money. In the call at Tab 380, Knapczyk told Caines in forceful language to keep quiet and

stay off the phone. When asked if “its done,” Knapczyk said: “It will be, alright?” This again

confirms his role in solving Caines’ problems associated with his cocaine business; in this case,

the theft of drugs.

[836] In the call at Tab 387 (December 10, 2005), Knapczyk confirmed his trip to Fort

McMurray, and confirmed the information Caines had given him about the theft. Caines said it

was Josh who “gave it all up...told them where to go,” which I interpret to mean, told them where

to go to take the drugs. I conclude from the proximity in time and the contents of this call that

Knapczyk was going up to Fort McMurray to solve the problem of the theft of the “thing,”

Caines’ cocaine.

[837] In the call at Tab 389, Alcantara confirmed he was aware of “what’s going on.” Alcantara

answered Caines’ query as to whether “he’s” still coming up, saying “he’s” delayed. A subsequent

call at Tab 393 reveals that it was Knapczyk who was delayed because his fuel pump was broken.

Knapczyk asked if the “... thing came back his way;” that is, the stolen drugs, showing again that

Knapczyk was involved in the underlying problem, not just the relationship issues between

Alcantara and others as Knapczyk submits. Again, Knapczyk aggressively reminded Caines to

“shut up,” revealing that Knapczyk had an active rather than a passive involvement in what was

going on, again confounding the Defence theory that he was playing merely a big brother, mentor,

relationship-mender role for his prospect, Alcantara, in an internecine dispute between the two

HAMC Alberta chapters.

2012 ABQB 521 (CanLII)

Page: 184

[838] In the call at Tab 389, Alcantara said he just got back from the Bahamas, which could

explain the emergence of Knapczyk in the preceding weeks openly interfacing with Caines and his

problems (Tabs 372, 374, 376, 378, 379, 380, 387 and 393).

[839] The discussion continued in the call at Tab 393, with Caines expressing disappointment

that Knapczyk could not make it up because there was a party at Showgirls. Caines then asked if

Knapczyk’s buddies were around, which I take to mean other members of the Edmonton chapter

of the HAMC. Knapczyk asked why and Caines said he “...didn’t want to have to get his shirt

dirty,” which I interpret to mean he had wanted a show of force with a member of the HAMC at

his side and instead would have to fight his own battles.

[840] Tab 396 is a text between Kamran Sattar and Caines on the subject of the stolen drugs.

Sattar was looking for payment. Caines indicated they needed to find Lee (LePoidvin) for

payment, meaning that Caines was of the view LePoidvin was responsible for the theft.

[841] The call at Tab 397 between Alcantara and King makes clear it was Caines who was

asking for a loan because of problems he was having, leading Alcantara to say: “Pay the bills. No.

Feed the guy some supper.” In my view, Alcantara in this call confirmed his ongoing involvement

with the Caines, telling King not to give him a loan (“pay the bills”) but rather to supply him with

product.

[842] The text messages at Tab 399 confirm that it was Caines’ opinion that LePoidvin took his

drugs. He said that he would have had the money to pay junior “if Lee didn’t steal it.”

12. Tabs 409 to 413

(a) Arguments of the parties

[843] The Crown argues that the calls at Tabs 411-413 involve Alcantara arranging an

agreement with rival cocaine traffickers in a Fort McMurray area adjacent to Caines not to

compete with the prices at which the Caines’ trafficking operation sold cocaine. The Crown says

that in the call at Tab 411, Alcantara called Trevor Grimolfson and was arranging to meet

someone through Grimolfson in relation to Alcantara’s belief that a group of males was

threatening to take over something. The Crown argues that based on the guarded nature of the

call, he was concerned about interception and the subject was illegal. The precise subject of the

conversation was not identified. Rather, Alcantara asked if he remembered the “stuff” he asked

him about in the “neighborhood.” When Grimolfson sought clarification if it was Grand Prairie or

Fort McMurray, Alcantara said: “The Mac, Maleek.”

[844] The Crown argues that the call at Tab 412 is a continuation of the call at Tab 411, with a

continuing concern over detection, and concerning an illegal subject matter, inferentially the

trafficking of cocaine. The Crown argues that Alcantara was arranging a meeting with Maleek’s

group concerning an agreement on the price of cocaine. Alcantara said in the call that he did not

care about “G,” in the context of the previous inquiry, Grand Prairie. The Crown says that

2012 ABQB 521 (CanLII)

Page: 185

confirmation the problem was Maleek was confirmed when Alcantara said: “It’s that nigger

Maleek (phonetic) that’s fuckin’ saying that this and that, right?” The Crown argues that the call

at Tab 412 also make it clear that Alcantara was calling on behalf of his friend, Caines, who he

described as “not even fuckin’ involved in anything,” meaning not on the program for

membership in the HAMC, although “people think he is.” The discussion was of the problem that

“he’s doing them up for nine up there” and “going a step bigger on the big ones.... stealing fuckin’

people.” The Crown interprets this to mean selling an ounce of cocaine for $900 rather than the

standard price of $1300 to $1400. It suggest that going a step bigger would attract or “steal”

customers. The Crown suggests Alcantara was looking to come to an agreement. He agreed to

Grimolfson’s proposal that they lay down boundaries and meet somewhere in the middle.

[845] Finally, the Crown says that this call shows others senior to Alcantara were involved. He

proposed a sit down with the three of them, and said he did not need to bring in the “big guy,” a

reference to Knapczyk.

[846] Alcantara argues that there is no evidence of who Grimolfson was, there is no context to

the call so it cannot even be said that the discussion concerned cocaine, and what the call does is

to negate any finding of an exclusivity agreement to the extent it was drug trafficking they were

talking about.

[847] Knapczyk argues that while the calls at Tabs 412 and 413 concerned drug prices, there is

no evidence it was cocaine. In Tab 412, Alcantara said: “...they’re ... beginning to import more

guys up there” and said that he was not “saying don’t be here don’t be there.” He stated he was

just trying to come to an agreement and no one was keeping up their end of the agreement.

Knapczyk argues this negates the finding of an exclusivity agreement.

[848] Knapczyk also argues that it is speculative to suggest that the term “Big Guy” here meant

him as the nickname “Big Guy” could refer to physical stature, position or other features.

(b) Analysis

[849] In the call at Tab 409, on Thursday, December 15, 2005, Alcantara agreed to Caines’

proposal to stop by the clubhouse in Edmonton.

[850] In the call at Tab 411, Alcantara told Grimolfson that “his” guys were making threats to

take over up North. In the call at Tab 412, Grimolfson asked if it was Grand Prairie or Fort

McMurray, and Alcantara said it was “the Mac. Maleek,” whom he later identified as “that nigger

Maleek.” Alcantara told Grimolfson that they were selling drugs for a cheaper price and stealing

people. Grimolfson said one of his top guys was coming to see him and they would get to the

bottom of it, that they did not have permission to do that; that is, sell for the lower price.

Alcantara said he was not saying don’t be here, don’t be there, just come to an agreement.

[851] I accept that Alcantara was talking about an enforceable agreement to control the sale of

drugs in Fort McMurray. In this conversation, he was referring to prices, undercutting to steal

2012 ABQB 521 (CanLII)

Page: 186

“people” or customers, and the discussion concerned the two men meeting to find a way to co-

exist with another drug business. While the Defence argues this discussion of Maleek is

inconsistent with there having been an exclusivity agreement, it may be that the term ”exclusivity”

is too narrow. The term “protection” agreement fits the various scenarios that are featured in the

phone calls. It is the smooth operation of the Caines cocaine trafficking business that Alcantara

was protecting, The nature of the protection took several forms, and this price fixing overture was

but one. This conversation clearly illustrates Alcantara’s intervention to assist Caines with the

smooth operation of his cocaine trafficking business by what might euphemistically be called

dispute resolution. On this occasion, the dispute was about prices, about a threatened take over up

north, about stealing cocaine trafficking business.

[852] In my view, it does not matter who grimolfson is. His statements are not relied on, as he

has not been found to have been a co-conspirator. Rather, Alcantara’s role in the conversation

provides evidence and is in furtherance of the conspiracy.

[853] Alcantara used the term “agreement.” He wanted the two groups to agree on price fixing

for the stability of the market. He wanted terms of an agreement that traffickers would live by, to

avoid the prediction by Grimolfson that “things are gonna get worse.”

[854] Alcantara said: “... they walked up to my buddy and said they’re takin’ over.” Given the

discussion was about Fort McMurray and the drug trade, Alcantara was talking here about Caines

and his cocaine business. This is yet further evidence of Alcantara’s efforts on Caines’ behalf to

solve problems that were impeding the conduct of his business. Grimolfson agreed to look into it.

He said that they were his “bro’s” on both sides of the fence and they needed to sit down, which I

take to be at a meeting. Alcantara agreed to that, adopting the expressed view..

[855] Alcantara indicated that there was no need to bring in the “big guy.” It is obvious that

Grimolfson knew who he was referring to. Given that Alcantara was Knapczyk’s prospect, I am of

the view that this reference was to Knapczyk. His use of this nickname for Knapczyk is very clear

in the call at Tab 444.

[856] In the call at Tab 413, they concluded the conversation with Grimolfson agreeing that

“those guys are comin’ down... ‘Cause there is a black guy up there, right?... But they only have a

couple guys up there.”

[857] Alcantara agreed to Grimolfson’s proposal that “[we] gotta lay gown our boundaries and

then they can lay down theirs and then we can meet somewhere in the middle.:

13. Tabs 414 to 417

(a) Arguments of the parties

[858] Knapczyk points out that the person issuing the directive to Caines through Alcantara in

the calls at Tabs 414 and 415 was not identified. Alcantara told Caines to “sit tight” and not to

2012 ABQB 521 (CanLII)

Page: 187

talk to anyone that called. As to the call at 417, Knapczyk contends it shows that Alcantara

became involved because people were being threatened, and the phrase “no one’s sayin’ you can’t

be there” suggests the opposite of exclusivity.

[859] As to the call at Tab 419 made January 2, 2006, Knapczyk suggests that the indication he

was meeting Caines can be interpreted as his investigating LePoidvin’s conduct after the “thing”

has been stolen. He argues one possible explanation is that the time lapse would have given the

Nomads time to look into the problem of Lee’s conduct.

(b) Analysis

[860] In the call at Tab 414, on December 29, 2005, Alcantara conveyed to Corey that he was

“told” to tell “dirty cock” to sit tight and not meet with anyone right now as “things are being

worked out as they speak.” Later that day, in speaking with Caines, Alcantara told him not to

speak with anyone who called him. I infer that he meant Caines by his reference to “dirty cock.” it

is clear that Alcantara was acting on instructions, and things were being worked out for him.

[861] In the call at Tab 416, Alcantara spoke to “Joe” at the Remand Centre. Several aspects of

this conversation provide evidence as to the role played by Alcantara (and his group) in the drug

trade in Fort McMurray. Alcantara said: “My friends had to - my friends had to turn it off for four

days because fuckin’ people were gettin’ threatened.” Alcantara also made reference to the rules

of conduct among the drug traffickers. He said: “... nobody is saying he can’t be there - there are

certain rules.” Alcantara confirmed a statement by Joe about price fixing. Joe said: “... the basics

tell those guys not to be droppin’ anything... ah price and shit.” Alcantara said he knew - he told

them that, adopting Joe’s statement. These statements are in furtherance of the conspiracy as

Alcantara was negotiating with another trafficker.

14. Tabs 422 - 464

(a) Arguments of the parties

[862] The Crown argues that in the call at Tab 422, Alcantara was trying to arrange a meeting

with people who were being threatened - being “barked at.” The Crown submits that originally

Alcantara thought it was the guy that looked like Caines’ little brother, who it suggests was Pat

Felix. The Crown says Alcantara’s follow up call with Yakimishyn at Tab 423 confirmed it was

Felix who was meant. However, Caines indicated it was three other people and Alcantara then

told Caines to arrange for a meeting. The Crown argues that the calls at Tabs 423 and 431 confirm

that Alcantara was arranging a meeting with all of the guys from Caines’ trafficking operation

who had been threatened.

[863] The Crown points to the call at Tab 429 as evidence that Knapczyk was in charge of the

meeting. Caines confirming that the meeting was still going to take place. Alcantara asked Caines

to get ahold of “buddy” to see, and Alcantara then agreed to do it himself. He then called

Knapczyk at Tab 430 and asked. Knapczyk suggested: “How about tomorrow.” The Crown relies

2012 ABQB 521 (CanLII)

Page: 188

on this call to show that Knapczyk was actively involved in the enforcement of the exclusivity

agreement. It shows that “buddy” in the previous call was Knapczyk, who was orchestrating the

meeting to investigate the problems facing the Caines trafficking business and to enforce the

exclusivity agreement.

[864] The Crown argues that in the call at Tab 431, Alcantara told Caines to bring everyone who

had been bullied, including Felix, that “it’ll be to your benefit.” It says the calls at tabs 432 and

433 confirm the guys were in Edmonton, Caines was coming later, and Knapczyk said it was too

late to meet that night (January 10, 2006), he would “get the low down tomorrow.”

[865] Alcantara suggests that his comment to Caines that “[i]t’ll be to your benefit buddy,” is

consistent with him and Knapczyk investigating LePoidvin’s conduct as it would have reflected

adversely on the reputation of the HAMC. As S/Sgt. Lemieux testified: “... the Hells Angels have

a rule that states...no burns of any kind that would reflect badly on the club.”

[866] According to Knapczyk, if he and Alcantara were gathering individuals together for the

purpose of looking into the conduct of Lee, for the benefit of their club, it was only incidentally to

the benefit of Caines. He maintains that the statement: “... they want to meet everyone that Lee

bullied,” again shows their concern was not only the stolen “thing” but Lee’s bad conduct in

general. Knapczyk suggests that he, as a HAMC Edmonton member, may have been looking into

the bad conduct of an HAMC Nomads prospect, similar to Cantrill previously having looked into

Alcantara’s conduct. He argues that Alcantara stating it would be “to your benefit buddy” to send

everybody “that’s been bullied” did not mean that was the reason Alcantara and Knapczyk wanted

to meet with them. It was said to convince Caines to send them.

[867] Knapczyk argues that the call at Tab 433 confirms that he and Alcantara and Knapczyk

were obtaining information and not enforcing anything.

(b) Analysis

[868] In the call at Tab 422, Alcantara asked Caines: “... what’s the chances of your little brother

comin’ over here?... Well the one that looks like your little brother. Just seen on the weekend...

Yeah because whatever buddy was barkin’ at out, about, wanted to clarify a few things.” Caines

said it wasn’t the guy who looked like his little brother “they” were barking at. It was a couple of

other guys. Alcantara told Caines to round them up and have them come then. He indicated: “...

my... buddies will be there.” By that I take him to have meant that there would be guys from the

HAMC at the meeting.

[869] Immediately after that call, Alcantara phoned Yakimishyn (Tab 423) and asked him if he

remembered “that time at Showgirls... at Crazy Horse North... [when] buddy was fuckin’ uh

yellin’ at buddy there?” He asked Yakimishyn who “buddy” had been yelling at. Yakimishyn said:

“Pat.” Alcantara asked whether it had been one of the buddies that Pat had been with. Yakimishyn

said that he did not think so; it was just Pat who had been yelled at but “then all his buddies were

2012 ABQB 521 (CanLII)

Page: 189

standing around Pat... buddy’s buddies were all standin’ around in a circle.” I interpret this call as

an attempt by Alcantara to check on the accuracy of what Caines had told him.

[870] Shortly after the call at Tab 423, Caines called Alcantara (Tab 425). Knapczyk was with

Alcantara at the time. Alcantara commented: “... it was your little brother too eh? In a separate

incident. At the strippers.” Caines said that Alcantara was right. Alcantara advised that it would

“really help” if “he,” meaning the guy who looked like Caines’ little brother, was there the next

day. Caines reiterated that there were three guys and “that other guy.” Alcantara said he also

wanted to talk to “the guy that gave up a thing.” They decided that Caines would have the four

guys, including his “little brother” there for Monday.

[871] In my view, these calls show that Alcantara was invested in solving the problems with

Caines’ cocaine business in Fort McMurray. In the call at Tab 425, he was taking control of the

situation. He wanted to talk to the “guy who gave the thing up” in terms of the theft incident, and

the guy who looked like Caines’ little brother in reference to the bullying incident.

[872] In the call at Tab 428, Alcantara assured King that: “... we’re not those guys... fucking

buddy fr - up north there. He doesn’t know - seems like he doesn’t know the difference or

something ‘cause fuck we’re not like those guys you know... But like - we could still fucking act

like themself around me. Not fucking he’s gotta hold his lip or nothing...” I interpret this as

Alcantara distinguishing his group from another group with dealings in Fort McMurray who were

causing problems for Caines’ group. Alcantara described his group as “pretty decent guys... We’re

like you... We’re just in you know... We’re just doing our thing.” He appears to have been telling

King that his group were just regular guys: they just happened to be in the HAMC. King reassured

Alcantara he did not think Alcantara’s group was anything like “those guys,” and that his (King’s)

friends had the same opinion. He advised Alcantara that he had told his friends a long time ago

“who they can trust and who they can’t.” His comment about liking to “fuck around with buddy’s

head up North there sometimes” and “buddy” deserving a “ball breaking” was a way of saying

that he was in a position to keep Caines under control.

[873] On Monday, January 9, 2006, Caines called Alcantara (Tab 429) to see if he still wanted

“those guys” to show up. Alcantara suggested that he get in touch with “buddy” to see what he

would say, but Caines asked him to do it. Alcantara’s next call (Tab 43) was to Knapczyk, which

suggests Knapczyk was the “buddy” referred to in the previous call. Alcantara asked whether he

wanted those guys to come here (Edmonton) that day. Knapczyk suggested the next day. This call

again shows that it was Knapczyk who was in charge of sorting out the problem.

[874] The following day, Caines asked (Tab 431) whether the guys were still wanted. Alcantara

said “everybody that’s been bullied,” and told Caines it would be to his benefit. This is further

evidence of Alcantara’s role as a fixer or enforcer/protector of Caines’ cocaine operation: he

wanted to talk to everyone who had been bullied.

[875] Alcantara reported the status of the situation to Knapczyk (Tab 433), who indicated he did

not want to meet the “[f]uckin’ friends” that night as it was too late. He said he would get the

2012 ABQB 521 (CanLII)

Page: 190

lowdown the next day when they met. This demonstrates Knapczyk’s involvement in the problem

solving in Caines’ cocaine trafficking organization.

15. Tabs 434 to 464

(a) Arguments of the parties

[876] The Crown argues that in the call at Tab 439, made on January 11, 2006, Alcantara told

Caines he was checking with Knapczyk about when he wanted to meet and would let him know.

At Tab 440, Alcantara called Caines and arranged to meet him at Tony’s. In the call att Tab 441,

Alcantara confirmed they were all in town. Gregoire told Alcantara that one guy “had to turn

around there.” The Crown argues that this call shows two things: Caines arranged for his guys to

attend the meeting; and Alcantara confirmed they were all in town. In the call att Tab 442,

Gregoire said he was having trouble finding the one guy. Alcantara instructed him to find the guy.

The Crown argues that Knapczyk was updated about the situation in the call at Tab 443.

Knapczyk said they were going to deal with it anyway, showing he was in charge of the meeting

and enforcement of the agreement.

[877] The Crown points to the call at Tab 444, in which Alcantara assured Gregoire, who was

getting tired of waiting, that it would be worth it (i.e. to get these problems of theft and bullying

solved). The Crown emphasized in oral argument Alcantara’s words: “But you gotta stay, those

guy - big guy just said, fuckin’ make sure because we’ll, we’re gonna do somethin’ anyways.” It

contends Alcantara was referring to Knapczyk is the “big guy” and this call shows that Knapczyk

was in control.

[878] The Crown says that in the call at Tab 445, Caines was reporting to Alcantara that he had

given his “brother” (that is, the guy who looked like his little brother) permission to go for a job

interview, but he could get him back. The Crown says this was code for drug related business. In

the call at Tab 446, Alcantara said he was waiting for the “big guy,” who the Crown again submits

was Knapczyk. The Crown suggests that this series of calls confirms Knapczyk’s involvement

with the Caines drug trafficking business.

[879] In Tab 447, a call between Gregoire and Alcantara, Alcantara was updated by Gregoire,

who said “Paddy” went back with Jeff (Caines), but he and Jody were still there. Alcantara

directed them to stick around. The Crown contends that the statements of Alcantara and Knapczyk

in the call at Tab 448 confirm the meeting was to assist the members of the Caines drug

trafficking operation. The Crown asserts that in the recording at Tab 449, Alcantara is heard

telling Knapczyk he told them all in strong terms to be there “tomorrow;” that he had their

numbers in his phone. The Crown notes that Alcantara’s phone seized on January 19, 2006

contained numbers associated in one of Caines’ seized phones to Kal (Gregoire), Jody, Patty (Pat

Felix) and Austin.

[880] In the call at Tab 450, Alcantara instructed Caines to send “junior” back right now. The

Crown argues this demonstrates the importance of having them all there: the meeting was

2012 ABQB 521 (CanLII)

Page: 191

designed to deal with harm to the trafficking operation. The Crown says that the call at Tab 451

documents Alcantara meeting with Gregoire, and the call at Tab 452 confirms Knapczyk had met

with the members of Caines’ organization the previous night but wanted to again. The Crown says

that in the next call (Tab 453), Alcantara advised Yakimishyn he was going to “[t]alk to those

guys,” proving he was involved in the meeting with the Caines’ group and actively involved in the

exclusivity agreement. In the call at Tab 455, Alcantara, who was information gathering,

confirmed he was meeting with Cal and Jody at the time of the call. The Crown says that the call

at Tab 456, where Alcantara advised Caines they were not done yet, is further confirmation of the

nature of the meeting given Caines’ interest in it. The Crown says the call at Tab 457 between

Gregoire and Alcantara confirms that the meeting took place, although Alcantara did not want to

discuss the results over the phone. In the call at Tab 458, they arranged to meet, confirming

Alcantara reported the outcome.

[881] The Crown refers to the call at Tab 459 and contends it was a call between Saunders and

Alcantara in which they discussed a situation pertinent to the Caines operation, in particular,

someone “same as us;” that is, a prospect (LePoidvin) and why he was not at the meeting. Further,

the Crown says the evidence shows the problem related to LePoidvin having stolen the kilogram

of cocaine: the person making the accusations was not at the meeting.

[882] Alcantara argues that the Crown’s assertion that this meeting involved senior members of

the HAMC Edmonton and the Nomads over the theft of a kilogram of cocaine and shows “the use

of the HAMC name as part of the cocaine conspiracy” is speculation and says there is no evidence

that the HAMC was involved.

[883] Knapczyk argues that in the calls at Tabs 434-436, Alcantara and Caines arranged to meet.

In the calls at Tabs 437-440, Alcantara and Knapczyk arranged to meet with Caines. In the calls at

Tabs 441 to 455, Alcantara and Knapczyk arranged to meet with Caines’ friends and later

Yakimishyn. Knapczyk argues that in the call at Tab 448, he and Alcantara may have been

discussing the HAMC Nomads members and their frustration with the lack of attention to the

LePoidvin problem.

[884] Knapczyk argues that the Crown is merely speculating in suggesting that the meeting

discussed by Saunders and Alcantara in the call at Tab 459 confirms the HAMC name was used as

part of an exclusivity agreement. Further, he submits that the meeting might have included

possible members of the Nomads for the purpose of looking into LePoidvin’s behavior.

[885] Knapczyk submits that in terms of the call at Tab 460, the HAMC meeting was to discuss

LePoidvin’s conduct, and was not in regard to the stolen thing. He contends that if there had been

a protection agreement, the meeting would have been about returning “the thing.” Rather, the

meeting was information gathering so they could go to the Nomads regarding improper conduct of

one of their members. Further, he suggests that if Alcantara was in a conspiracy with Caines, he

would have cared more about the return of the “thing.”

2012 ABQB 521 (CanLII)

Page: 192

[886] In the call at Tab 461, Caines and Alcantara discussed the Cardinal seizure, which Caines

described as happening to him. Knapczyk argues that Alcantara did not appear personally affected

by this seizure.

[887] Knapczyk submits there are a number of possible explanations for his guarded behaviour

on the phone: awareness of police interest in the HAMC and guarding his privacy; awareness of

Caines’ and Alcantara’s activity that he did not want to be associated with; dealing in matters of

his own he did not want revealed.

[888] Knapczyk points to instances of Caines’ arguable dishonesty: Tabs 67 and 264. Knapczyk

also argues that there is evidence Alcantara and caines supplied drugs to each other: Tab 7 (video

games), Tab 26 (timmy), Tab 28 (joint), Tab 51 (joint), Tab 80 (purple shirt); and Tabs 87- 91. He

suggest that there is evidence of Alcantara’s involvement in other illegal activity unrelated to the

present charges, to him, to Caines, or to the HAMC.

[889] submits that the evidence is consistent with him not being involved in any “agreement,”

but using his position as a respected member of the HAMC to prevent conflict and look into

improper conduct on the part of prospects.

[890] Knapczyk emphasizes there is no evidence that the stolen “thing” was a kilogram of

cocaine. There are a number of other possibilities. Further, if there was an agreement, there is no

evidence as to what it would be for, since the evidence shows Caines was not the exclusive

cocaine supplier to Fort McMurray, and he took his protection into his own hands.

(b) Analysis

[891] In the calls at Tabs 434-438, Alcantara arranged for a meeting with Caines. In the call at

Tab 439, Alcantara said he was meeting “buddy” at 8:30. He then called Caines and told him

“what they figured out.” Given the preceding calls, I understand that Alcantara was talking about

meeting Knapczyk, with whom he was in league over the current problems of the Caines

organization.

[892] The calls at Tabs 441-442 concerned Gregoire looking for the guy that “had to turn

around,” who might be “scared.” Alcantara commented that if that guy was scared, he was an

“idiot.” He instructed him to keep looking.

[893] In the call at Tab 443, Alcantara reported to Knapczyk that “buddy” could not get ahold of

the guy who turned around the previous night. Knapczyk expressed the view that there was

something fishy there, but said if the other guys were still in town they would with “this” anyway.

Knapczyk had the authority in the situation to direct that they would deal with the problem in

caines’ drug organization even though one guy was missing.

[894] In the next call at Tab 444, Alcantara reported his conversation with Knapczyk to

Gregoire. I agree with the Crown that he meant Knapczyk when he referred to “the big guy” who

2012 ABQB 521 (CanLII)

Page: 193

said they were going ahead anyway. This call proves that Knapczyk had an active role, together

with Alcantara, as problem fixers for the Caines organization. He was “the big guy,” which in this

context was Alcantara’s slang for “the boss.”

[895] In the calls at Tabs 445 to 449, Alcantara, Caines, Gregoire and Knapczyk discussed

getting Caines’ people together for the meeting. In the call at Tab 449 Alcantara reported to

Knapczyk that he had said: “... you guys be here tomorrow with all your numbers.” I understand

that to be a reference to the accounting of drugs and money, since the people attending were

distributors for the Caines cocaine trafficking ring, and Alcantara and Knapczyk were

investigating an alleged theft of cocaine from them. In the call at Tab 448, Gregoire told Alcantara

that Paddy (Felix) had gone back with Jeff (Caines), but that he and Jodi (Smith) were still there.

[896] In the call at Tab 450, Alcantara instructed Caines to send “junior” back. I take him to

have meant Caines’ little brother look-alike, possibly Felix, who went back to Fort McMurray

with Caines. There was urgency and authority to Alcantara’s instruction. In the call at Tab 451, he

told Gregoire he was going to talk to “those buddies from last night,” then talk to his other buddy.

[897] The call at Tab 452, in which Alcantara reported to Knapczyk, shows he met with Caines’

people the night before, he was going to talk to them again, and his “other buddy there right

after.” He asked Knapczyk if he wanted to talk to them too. Knapczyk agreed he might. The other

buddy “on the phone right now” appears to have been gregoire.

[898] In the next series of calls, Alcantara confirmed to Yakimishyn that he was then meeting

with Gregoire and Smith. Later, in the call at Tab 457, he told Gregoire they could pack it up and

go. When asked if “its all taken care of,”Alcantara said he would call Gregoire when he was

heading to the north side and tell him. In the call at Tab 458, they arranged to meet.

[899] In the call at Tab 459 with Saunders, Alcantara mentioned: “Yeah, that’s quite the

evening.” They had both been in attendance. Both were prospects with the Edmonton chapter of

the HAMC. Saunders asked why the guy “the same as them” was not there. I infer he meant

LePoidvin, given the issue under discussion at the meeting concerned the theft of cocaine that was

attributed to him.

[900] In the call at Tab 460, Caines asked if the sled had been fixed, in other words, whether the

problem had been. Alcantara said: “... one of those fuckin’ kids changed the story... remember we

couldn’t get a hold of him... someone else got to him.” Caines said the guy was timid. This call

shows a frank discussion between Alcantara and Caines about the fear engendered by this meeting

with the members of the HAMC. They speculated about how “he” (the guy they could not get

ahold of) knew who he was to meet; that is Knapczyk (a member of the HAMC).

[901] In summary, the evidence against Alcantara and Knapczyk admissible under the co-

conspirator’s exception to the hearsay rule includes (but is not limited to):

2012 ABQB 521 (CanLII)

Page: 194

(a) Tabs 1-18 - Statements made by Caines and Alcantara in which Alcantara was

wooing Caines to enter into an agreement with Alcantara and his group rather than

LePoidvin and his group, were in furtherance of the conspiracy as relating to an

agreement to protect the Caines group in their trafficking activities and are

evidence admissible against both Accused.

(b) Tabs 12-16 - Statements made by Alcantara and Knapczyk about how to

placate Cantrill were in furtherance of the conspiracy as necessary to effectuate a

peaceful transition to the HAMC Edmonton chapter, and are evidence admissible

against both Accused.

arrangements to take over the protection agreement and the statements of Caines

indicating he is looking to them to advise what is going on and what he should do,

were in furtherance of the conspiracy as necessary to effectuate a peaceful

transition to Alcantara and Knapczyk, members of the HAMC Edmonton chapter,

and are admissible against both Accused.

(d) Tab 31 - Statements by Alcantara confirming the changeover of the agreement

to him and his group by Alcantara and Caines relating to the nature of the

agreement were in furtherance of the conspiracy as they concerned the protection

agreement and services to be performed, and are admissible against both Accused.

(e) Tabs 38, 40 and 58 - Statements by Alcantara and Caines regarding overlapping

and the schedule of payments were in furtherance of the conspiracy as effecting the

agreement between Caines and Alcantara’s group, and are admissible against both

Accused. Statements by Alcantara and Knapczyk about LePoidvin and Cantrill are

in furtherance of the conspiracy as they relate to the continuing friction caused by

the changeover. Alcantara’s close relationship to and intermediary role with Caines

is the lifeblood of the agreement with Caines. The statements are admissible

against both Accused.

(f) Tabs 56 and 57 - Statements made by King, while in part retrospective,

encouraged Alcantara to find out who wanted to speak with him and relating to

resolving the on-going dispute which was having an effect on the Caines’ drug

trafficking organization. The importuning of Alcantara to call King was in

furtherance of the conspiracy as maintaining control in these internecine disputes

and appears to have been crucial to the stability necessary for the business to

function. These statements are therefore admissible against both Accused.

(g) Tab 58 - Statements of Caines show that Alcantara had been told to keep on top

of Caines and the payments by those to whom he was answerable. They are in

furtherance of the conspiracy in that they confirm the changeover to the HAMC

Edmonton chapter, that Alcantara was answerable to others, and that regular

2012 ABQB 521 (CanLII)

Page: 195

payment was required from Caines in exchange for the services provided by

Alcantara and his group. The statements in this discussion are therefore in

furtherance of the conspiracy and admissible against both Accused. The succeeding

calls at Tabs 60- 65 and the surveillance of Alcantara picking up the package

(money) from Flight are similarly acts and utterances in furtherance of the

conspiracy and admissible against both Accused for the same reasons.

(h) Tabs 66-68 - The statements of Alcantara and Caines concerning the seizure of

drugs and money from McDonald and the impact on Caines’ ability to keep on the

payment schedule were in furtherance of the conspiracy and are admissible against

both Accused.

(i) Tabs 84, 86, 129 - Caines statements were in furtherance of the conspiracy as

they dealt with the role of Alcantara and his group to get rid of problems

(competition) faced by the Caines group in terms of its cocaine trafficking. They

were in furtherance of the conspiracy as relating to the on-going agreement and are

admissible against both Accused.

(j) Tab 197 - Statements of King and Caines deal with an issue which is affecting

the Caines group in terms of its cocaine trafficking. They were in furtherance of the

conspiracy and are admissible against both Accused.

(k) Tabs 367-369 - Statements made by Caines, Knapczyk and others relating to

threats Caines and his people were receiving were in furtherance of the conspiracy

and are admissible against both Accused.

(l) Tabs 370-399 - Statements of Caines and Knapczyk relating to the stolen

kilogram of cocaine were in furtherance of the conspiracy and are admissible

against both Accused.

(m) Tabs 411 ff - Statements of Alcantara, Caines etc. concerning the problem of

Maleek undercutting the Caines group were in furtherance of the conspiracy and

are admissible against both Accused.

(n) Tabs 422-464 - Statements of Caines, Alcantara, Gregoire and Knapczyk

relating to the meeting of Caines’ guys with Knapczyk over the stolen kilogram of

cocaine and bullying of Caines “guys” were in furtherance of the conspiracy and

are admissible against both Accused.

F. Conclusion on Whether Alcantara and Knapczyk were Members of the

Conspiracy

[902] I conclude that the evidence in this trial shows beyond a reasonable doubt that Alcantara

and Knapczyk, both of whom were affiliated with the Edmonton chapter of the HAMC, were

2012 ABQB 521 (CanLII)

Page: 196

members of the Caines conspiracy to traffic in cocaine in Alberta from August 2005 until at least

January 2006. Their role was to provide protection to the Caines group in its trafficking activities,

including dealing with the removal of people interfering with its trafficking business, undertaking

and working on the problem of theft of cocaine from Caines’ traffickers, and dealing with the

problem of bullying of members of the Caines’ group. Their intention was to further the common

design of trafficking cocaine in Alberta, particularly Fort McMurray.

[903] I accept Mr. Lemieux’s opinion that, within the criminal milieu

...[people] know exactly what the Hells Angels stand for and what the Hells Angels

can do, what their reputation is all about;” that “...[t]hey know that if they try to --

how could I say -- take the Hells Angels to task that the Hells Angels will be able

to do whatever they mean because again they know that the Hells Angels are not

just one individual, but they are a very big organization and that individuals can

count on the organization to assist them. So if you are dealing with a member of

the Hells Angels, you know that this individual can take care of business, meaning

that whenever you deal with them, they can produce what they have told you that

they will produce or they will be able to act upon anything that they told you that

they would act on, and they will go to great lengths to defend this reputation where

their colours or the patch is the power of the organization which demonstrates that

the individual doesn’t even have to say who he is. He just has to wear the colours

of the club to identify himself, and within the milieu they know what level this

individual is at and what he stands for, what the organization stands for -- again, as

I said, a reputation of violence and intimidation and capable of taking care of

business.

[904] I accept that Alcantara and Knapczyk brought not only their individual agreement to

protect the Caines conspiracy to the table, but also, by virtue of their membership in the HAMC,

they brought the reputation of the HAMC to the table to carry out these protection activities for

the Caines organization.

[905] Alcantara is correct in his observations that the evidence does not show regular instances

of payment by Caines to him and to Knapczyk, nor any evidence of significant amounts of money

in their hands. However, there is evidence that Caines was on a payment schedule to them, that

payment changed hands, and that Alcantara made sure Caines stayed on schedule. The absence of

evidence on the amounts of money paid, or where the money ended up, does not detract from the

evidence of an enforcement agreement, and that the agreement included payment of money by

Caines to Alcantara and Knapczyk, who brought to the agreement their association with the

HAMC Edmonton chapter.

[906] Knapczyk deftly argues that his involvement in the dispute between Alcantara and

LePoidvin over the Caines alliance had another, equally plausible, explanation; that this

alternative construction of the evidence shows the Crown has not proven the charges beyond a

reasonable doubt. The argument is that the evidence is equally consistent with him being involved

2012 ABQB 521 (CanLII)

Page: 197

in these events to protect the reputation of the HAMC from the rogue conduct of LePoidvin, a

prospect with the Nomads, because of his protective, mentor role with his prospect, Alcantara.

[907] However, this theory does not account for the evidence implicating both him and

Alcantara in taking care of business for the Caines organization, in the removal of interlopers

(Webb, Gus), price fixing, theft of cocaine, and bullying of Caines’ “guys.” Some of these events

do not involve LePoidvin. The evidence in total goes far beyond being credibly explained on the

basis that Alcantara was simply being groomed and protected by his HAMC member, with

Knapczyk gratuitously running an internecine dispute resolution system for the HAMC in Alberta.

Rather, the evidence shows that the involvement of Alcantara and Knapczyk with the Caines

group was criminal in nature and intended to further the group’s drug trafficking business.

[908] The Crown has proven beyond a reasonable doubt that Alcantara was a member of the

conspiracy. He was the front line person receiving Caines’ requests for assistance with problems

that would impede the smooth flow of drugs from the Caines organization to the street; and dealt

with those problems by taking them to his superior for intervention and effectuation of strategies

to solve the problems.

[909] The Crown also has proven beyond a reasonable doubt that Knapczyk was a member of

the conspiracy. He was the superior to whom Alcantara turned for advice and resolution of the

problems encountered by Caines in terms of his drug trafficking operation in Fort McMurray.

When Alcantara was unavailable, Caines sought out Knapczyk directly to deal with these

problems.

[910] I conclude that Alcantara and Knapczyk, together with Caines and others, had an intention

to enter into an agreement to unlawfully traffic in cocaine contrary to s 5(1) of the CDSA and they

did in fact enter into such an agreement between August 30, 2005 and March 31, 2006, at or near

Fort McMurray, Calgary, Edmonton and elsewhere in Alberta. The Crown has proven not only

that they intended to put their common design into effect but that they did so, thereby committing

an offence contrary to s 465(1)(c) of the Code.

[911] I find Alcantara and Knapczyk guilty of Count #1 in the Indictment.

VII. Count # 2 - Trafficking in Cocaine

A. The Law

[912] Section 5(1) of the CDSA states:

5(1) No person shall traffic in a substance included in Schedule I, II, III or IV or

in any substance represented or held out by that person to be such a

substance.

2012 ABQB 521 (CanLII)

Page: 198

[913] Cocaine is one of the prohibited substances listed in Schedule I.

[914] To "traffic" is defined in s. 2(1) of the Act as meaning, in respect of a substance included

in any of Schedules I to IV:

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) to sell an authorization to obtain the substance, or

otherwise than under the authority of the regulations.

[915] A person does not actually have to carry out the physical act of trafficking in cocaine in

order to be guilty of an offence under s 5(1) of the CDSA. Section 21 of the Code states:

21(1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to

commit it; or

(2) Where two or more persons form an intention in common to carry out an

unlawful purpose and to assist each other therein and any one of them, in

carrying out the common purpose, commits an offence, each of them who

knew or ought to have known that the commission of the offence would be

a probable consequence of carrying out the common purpose is a party to

that offence.

[916] In R v Greyeyes, [1997] 2 SCR 825 at para 26, L'Heureux-Dubé J, who delivered the

majority judgment, distinguished the concepts of aiding and abetting, stating:

The terms "aiding" and "abetting" are often used together in the context of

determining whether persons are parties to an offence. Although the meanings of

these terms are similar, they are separate concepts: R. v. Meston (1975), 28 C.C.C.

(2d) 497 (Ont. C.A.), at pp. 503-4. To aid under s. 21(1)(b) means to assist or help

the actor: Mewett & Manning on Criminal Law (3rd ed. 1994), at p. 272; E. G.

Ewaschuk, Criminal Pleadings & Practice in Canada (2nd ed. 1987 (loose-leaf)),

at p. 15-7, para. 15:2020 (release May 1997). To abet within the meaning of s.

21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be

committed: Mewett & Manning on Criminal Law, supra, at p. 272; Criminal

2012 ABQB 521 (CanLII)

Page: 199

Pleadings & Practice in Canada, supra, at p. 15-11, para. 15:3010 (release

December 1996).

B. Arguments of the Crown

[917] The Crown submits that the evidence relied on in Count #1 establishes that significant

quantities of cocaine were trafficked in Caines’ cocaine trafficking organization. It points to

evidence that Caines used couriers to transport kilograms of cocaine to Fort McMurray. Caines

sold that cocaine to his distributors. Whichever one of Caines’ distributors who picked up the

shipment of cocaine would then divvy it up among the other distributors. The Crown says that all

of these were acts of trafficking.

[918] The Crown contends that evidence was presented that cocaine actually was trafficked

during the course of the investigation, noting that Marche testified about obtaining a kilogram of

cocaine from McDonald at Caines’ instruction, and that additional cocaine was found in

McDonald’s residence during the police search on September 15, 2005. The Crown also points to

the cocaine seized as a result of the Flight vehicle stop and the evidence Flight was transporting

the cocaine from British Columbia at Caines’ instructions. It also notes that Marche was found

with three kilograms of cocaine when he and Weiss were stopped by the police on November 24,

2005 and Marche testified that he was transporting the cocaine at Caines’ request. The Crown

further relies on the cocaine seizure from Cardinal’s residence and Marche’s evidence that he had

earlier obtained a kilogram of cocaine from Cardinal at Caines’ instruction.

[919] The Crown argues that the evidence establishes that Alcantara and Knapczyk assisted

Caines’ trafficking organization to traffic in cocaine. They assisted by entering into the exclusivity

agreement with Caines, which involved the HAMC enforcing Caines’ exclusive right to supply

cocaine in a geographical area in Fort McMurray or, at the very least, Alcantara and Knapczyk

used the reputation of the HAMC in the criminal milieu to discourage any competition.

[920] The Crown maintains that Alcantara took steps to enforce the exclusivity agreement in

mid-December 2005 when it appeared that other traffickers in Fort McMurray were selling

cocaine at a cheaper price and providing more grams per ounce in an attempt to steal customers

away from Caines’ distributors (Tabs 412 and 413).

[921] The Crown says that Knapczyk also took steps to enforce the exclusivity agreement in

early December 2005 after a kilogram of cocaine was stolen by LePoidvin from a dealer working

for one of Caines’ distributors. He did so by meeting with Mannarino to resolve the theft issue and

to have the cocaine returned to Caines.

[922] The Crown asserts that Alcantara and Knapczyk took active steps in enforcing the

agreement in early January 2006 by arranging to meet with members of Caines’ organization who

had been affected by the theft and who had been bullied (Tab 431 and 433).

2012 ABQB 521 (CanLII)

Page: 200

C. Arguments of the Defence

[923] Knapczyk submits that the actus reus of aiding is the performance of an act that in fact

assists the principal actor to commit the offence. The mens rea requires knowledge that the

principal intends to commit the crime and the intention to assist the principal in the commission

of the offence (R v Briscoe, 2010 SCC 13 at paras 14, 16-18, [2010] 1 SCR 411). He maintains

that accessorial liability is not inchoate and that criminal liability is only appropriate if there is a

nexus between an offence committed and the action which allegedly assisted.

[924] Knapczyk argues that to establish liability for aiding in trafficking cocaine, the Crown

must prove an accused facilitated the sale rather than the purchase of cocaine, as the purchase of

controlled substances has not been criminalized (Greyeyes at paras 2-3, 8).

[925] Knapczyk notes that the Crown alleges he provided assistance to Caines’ cocaine

trafficking organization but argues that the Crown has failed to prove he performed any act which

in fact assisted anyone in trafficking cocaine. He says that the Crown’s generalized allegation that

he assisted Caines’ trafficking organization cannot establish liability for trafficking.

[926] Knapczyk submits that while the Crown has suggested certain acts which could, in theory,

have assisted in the commission of an offence, it has failed to prove the actions did in fact do so.

As a result, there is no nexus between the actions of the alleged aider and a particular offence

committed by a particular offender.

[927] Knapczyk argues that the Crown has not established that he was connected in any way

with the first set of communications relied on by it which involve Alcantara and Grimolfson.

Further, the Crown does not suggest these communications were connected to the McDonald,

Flight, Marche or Cardinal incidents of trafficking.

[928] Knapczyk submits that the Crown’s theory in regard to the second set of communications

relating to the stolen kilogram of cocaine, is based on impermissible speculation and, in any event,

the Crown has failed to link any action by him to the alleged incidents of trafficking.

[929] Knapczyk argues that even if the Crown proves he and Caines entered into an agreement,

it has not pointed to any evidence that agreement actually had an effect on a third party’s ability to

commit a crime.

[930] Knapczyk contends there is a lack of evidence that he did anything with the purpose of

assisting Caines’ trafficking activities.

[931] Alcantara adopts these arguments.

2012 ABQB 521 (CanLII)

Page: 201

D. The Evidence of Trafficking

[932] I have concluded that Caines was at the head of a cocaine trafficking conspiracy operating

in Fort McMurray, including from July 1, 2005 to March 31, 2006.

[933] With respect to McDonald, the evidence is that on September 15, 2005 his residence was

searched and two bricks of cocaine were found, one weighing 980 grams and the other 983 grams,

as well as other quantities of cocaine, drug paraphernalia, cells phones, score sheets, a .45 calibre

Colt handgun, and more cocaine in his vehicles.

[934] With respect to Flight, the evidence is that on October 27, 2005, the RCMP arrested him

on the highway and searched his vehicle, finding six pounds of marijuana, as well as four bricks

of cocaine, cell phones, and money. There is also evidence that Flight was gathering drug

proceeds for Caines.

[935] With respect to Caines, on November 10, 2005, the RCMP stopped Caines in his vehicle

at Red Deer and found about $92,000 as well as two cell phones and a tick sheet in his possession.

When RCMP searched his Fort McMurray residence on December 14, 2005, they seized a royal

Sovereign money counter. On May 31, 2006, the police searched Caines’ fifth wheel trailer and

found another money counter. When they searched his Fort McMurray residence that same day,

they seized items suggestive of affluence (gold jewellery, diamond jewellery, watches, vehicles,

skidoos, snowmobiles etc.), as well as a money counter. On May 31, 2006, the police searched

Caines’ Calgary residence and seized various items, including a Chevrolet Corvette, a cash

counting machine box, cash, and a Rolex watch. The Crown has proven that Caines had

significant money, personal property, and real property (two residences), yet no job (although he

did have an occupation).

[936] The money counters are suggestive of someone who had to count significant quantities of

cash and are consistent with a cocaine supplier counting drug proceeds.

[937] The tick sheets found during the searches of Caines’ Calgary and Fort McMurray

residences, and as a result of the November 10, 2005 stop of his vehicle near Red Deer, are

consistent with a cocaine supplier keeping track of money owed to him.

[938] With respect to Cardinal, on January 17, 2005 the police searched his residence and seized

over 700 grams of cocaine, cocaine packaging paraphernalia, twelve cell phones, a large bundle of

Canadian currency, a cash counting machine, and about $12,000 in cash.

[939] With respect to Alcantara, on February 9, 2006, the police searched his residence and

seized a hot shot taser, a floor safe, four butterfly knives, a Luger pistol, a machete, a Muscleman

taser, cell phones, a radio frequency jammer, various pieces of false identification, a contact list

for the HAMC Edmonton chapter, a Cadillac and a Harley Davidson motorbike.

2012 ABQB 521 (CanLII)

Page: 202

[940] Marche testified that he agreed to obtain large quantities of cocaine from Caines for the

purpose of trafficking in Fort McMurray, to store it on occasion for Caines and other members of

the group and to distribute it not only to his own dealers but other members of the group on

Caines’ instructions.

[941] On November 24, 2005, he and Weiss were stopped by the police near Red Deer on their

way back from Calgary. His truck was searched and the police found three bricks of cocaine,

further cocaine, and three cell phones. Marche testified about his trip with Weiss to Calgary on

November 23, 2005 on Caines’ behalf, carrying a bag of money with them provided by Caines,

and waiting at Caines’ residence and then at their hotel, where three kilograms of cocaine were

delivered to them for Caines. His evidence was corroborated by police surveillance, Weiss’ trial

evidence and the photograph he took of the money.

[942] There is evidence that Gregoire was involved in drug transactions with Caines (Tab 255,

Tab 364).

[943] Marche testified that Hoskins transported cocaine from Calgary for Caines and that he

drove Hoskins to Calgary with drug proceeds from Caines. There is other evidence detailed above

showing that Hoskins was involved in trafficking. In addition, there is evidence of Penton

handling drugs for Caines. King, as noted above, is implicated in the events of November 23 to

24, 2005, where Marche and Weiss picked up cocaine in Calgary for transportation back to Fort

McMurray. There is evidence that Kamran Sattar also was involved in trafficking in cocaine.

[944] In my view, there is evidence of incidents of trafficking by Caines, Marche, Cardinal,

Gregoire, Hoskins, McDonald, Flight, Penton, Kamran Sattar and King within the definition of

trafficking, which includes “...to sell, administer, give, transfer, transport, send or deliver the

substance.”

E. The Evidence Against Alcantara

[945] The evidence proves beyond a reasonable doubt that Alcantara was a member of the

Caines’ conspiracy to traffic cocaine in Fort McMurray. He agreed to protect Caines’ drug

business by removing unwanted interlopers, by facilitating Knapczyk’s involvement in dealing

with the problems of LePoidvin’s theft of cocaine from Josh, by arranging for Knapczyk to meet

with Caines’ “guys” to deal with the theft and the bullying.

[946] However, there is no evidence that Alcantara’s activities aided the trafficking activities of

Caines, Marche, McDonald, Cardinal, Gregoire, Hoskins, Penton, Flight, King and Kamran

Sattar. There is an absence of evidence showing a link between Alcantara’s agreement to carry out

the protection, and the actual trafficking activities of Caines and the co-conspirators.

2012 ABQB 521 (CanLII)

Page: 203

F. The Evidence Against Knapczyk

[947] The evidence establishes beyond a reasonable doubt that Knapczyk was a member of the

Caines’ conspiracy to traffic cocaine in Fort McMurray. He participated by agreeing to protect

Caines’ drug business. He was involved in removing unwanted interlopers, in dealing with the

problems of LePoidvin’s theft of cocaine from Josh, and in meeting with Caines’ “guys” to deal

with the theft and the bullying of Caines’ “guys.”

[948] However, there is no evidence that Knapczyk’s activities aided the trafficking activities of

Caines, Marche, McDonald, Cardinal, Gregoire, Hoskins, Penton, Flight, King and Kamran

Sattar. There is an absence of evidence showing a link between Knapczyk’s carrying out the

agreement to provide protection, and the trafficking activities of the co-conspirators.

[949] The law on this point is set out in the decision of R v Dooley, 2009 ONCA 910 at paras

120-124, 249 CCC (3d) 449, leave to appeal to SCC den’d [2010] SCCA No 179. Doherty JA,

writing for the court, noted at para 123 that:

Any act or omission that occurs before or during the commission of the crime, and

which somehow and to some extent furthers, facilitates, promotes, assists or

encourages the perpetrator in the commission of the crime will suffice, irrespective

of any causative role in the commission of the crime. The necessary connection

between the accessory's conduct and the perpetrator's commission of the crime is

captured by phrases such as "actual assistance or encouragement" or "assistance or

encouragement in fact" or as the appellants argue, conduct that "has the effect" of

aiding or abetting...

[950] Counsel for the Defence also rely on the R v Venneri, 2012 SCC 33, arguing that in that

case Fish J, for the Supreme Court of Canada, held that Venneri’s convictions for possession were

unreasonable as there was no evidence establishing a nexus between Venneri and the seized

cocaine (at para 21).

[951] In my view, the required nexus between the activities of Alcantara and Knapczyk in

protecting the Caines group’s business of trafficking in cocaine, and the acts of trafficking by

Caines, Marche, McDonald, Cardinal, Gregoire, Hoskins, Penton, Flight, King and Kamran

Sattar, has not been established.

G. Conclusion on Whether Alcantara or Knapczyk Trafficked in Cocaine

[952] I agree with the arguments of Knapczyk and Alcantara that, while the Crown has

suggested certain acts which could, in theory, have assisted in the commission of an offence, it has

failed to prove the actions did in fact do so. As a result, there is no nexus between the actions of

the alleged aiders and any particular offence committed by any particular offender.

2012 ABQB 521 (CanLII)

Page: 204

[953] In the result, the Crown has failed to prove beyond a reasonable doubt that Alcantara or

Knapczyk aided in the trafficking of cocaine. Each is acquitted of Count #2 in the Indictment.

VI. Count #3 - Committing an Indictable Offence for the Benefit of a Criminal

Organization

A. The Law

[954] Alcantara and Knapczyk are charged under the criminal organization provision in s 467.12

of the Code, which states:

467.12(1) Every person who commits an indictable offence under this or any other

Act of Parliament for the benefit of, at the direction of, or in association with, a

criminal organization is guilty of an indictable offence and liable to imprisonment

for a term not exceeding fourteen years.

(2) In a prosecution for an offence under subsection (1), it is not necessary for the

prosecutor to prove that the accused knew the identity of any of the persons who

constitute the criminal organization.

[955] "Criminal organization" is defined in s 467.1(1) of the Code as:

"criminal organization" means a group, however organized, that

(a) is composed of three or persons in or outside Canada; and

(b) has as one of its main purposes or main activities the facilitation or

commission of one or more serious offences that, if committed, would

likely result in the direct or indirect receipt of a material benefit, including a

financial benefit, by the group or by any of the persons who constitute the

group.

It does not include a group of persons that forms randomly for the immediate

commission of a single offence.

[956] A "serious offence" is defined in s 467.1(1) of the Code as "an indictable offence under

this or any other Act of Parliament for which the maximum punishment is imprisonment for five

years or more, or another offence that is prescribed by regulation.” For greater certainty, ss

467.1(2) and 467.1(3) of the Code clarify that "facilitation of an offence does not require

knowledge of a particular offence the commission of which is facilitated, or that an offence

actually be committed" and "committing an offence means being a party to it or counselling any

person to be a party to it."

2012 ABQB 521 (CanLII)

Page: 205

1. Elements of the offence

[957] Essentially, there are three elements of the offence which the Crown must establish:

(1) the existence of a criminal organization within the meaning of s 467.1;

(2) the accused committed an indictable offence; and

(3) the accused committed the indictable offence for the benefit of, at the

direction of, or in association with the criminal organization.

[958] Each of these elements has several sub-elements which the Crown must prove.

[959] In this case, the underlying charges on which the criminal organization charge rests are: (1)

conspiracy to traffic in cocaine contrary to s 465(1)(c) of the Code; and (2) trafficking in cocaine

contrary to s 5(1) of the CDSA. Both of these offences are indictable offences and both qualify as

"serious offences" in terms of the definition of “criminal organization” for purposes of 467.12 of

the Code. As such, the finding of guilt in respect of the conspiracy charge would support a

conviction under s 467.12 of the Code provided the other elements of the offence are satisfied.

(a) Existence of a criminal organization

[960] In R v Atkins, 2010 ONCJ 262, a preliminary inquiry decision, Harris J held at para 25:

Consequently, any three persons who associate more than once, mainly to buy, sell,

transfer or distribute drugs or firearms to and from each other for the benefit of any

one associate in terms of profit, security, enforcement or any other type of benefit -

are all part of a criminal organization according to the Code definition. Maximum

flexibility is achieved by the use of the words, "however organized". There are no

requirements for (a) formally defined roles; (b) continuity of association; or (c) a

developed structure. While it is helpful if the group obligingly adopts a name

associated with some notoriety, or dresses in a certain manner with coloured

accessories or "patches", or establishes a territory, the fact is that no particular

group structure or organization is actually required. Nonetheless, the persons who

constitute "the group, however organized", are only associates of a criminal

organization to the extent they share its criminal objectives.

[961] On the other hand, in R v Sharifi, [2011] OJ No 3985, 2011 CarswellOnt 9044 (SCJ),

Maranger J found that a loose grouping of individuals, with a few people directing drug

trafficking activities, was not an organized group for the purposes of s 467.1. Maranger J stated at

para 38:

2012 ABQB 521 (CanLII)

Page: 206

In my view, the evidence presented at trial did not establish the existence of an

organization regardless of how flexible that definition may be in the Criminal

Code. The evidence or lack of evidence allows for the following conclusions:

a) A group of individuals were involved in trying to obtain cocaine during a

short timeframe: November, December, January 2006/2007.

b) It is not possible to say how they were going to benefit each other.

c) There was no structure to the group.

d) It cannot be said with any certainty who exactly knew who, or for that

matter who was responsible for what.

e) There was no name to the group, no evidence that they considered

themselves to be members of a group or organization.

f) There was no evidence of any records of their activity.

g) I cannot say the accused thought he was going to benefit anyone in the

group or only going to benefit himself.

h) Finally, there is no evidence to support the proposition that the accused

"committed the predicate offence with the intent to do so in association

with the group he knew had the composition of a criminal organization."

[962] Venneri was released after final submissions in this trial had been made. However, the

parties were given an opportunity to comment on the impact of the decision.

[963] The facts in Venneri were similar in many respects to those in the present case. A police

investigation revealed a large cocaine trafficking network in the Montreal area operated by

Dauphin. One of his accomplices, Russell, transported the drugs from British Columbia to Quebec

at his direction. Two other co-conspirators, Marchand and Bilodeau, stored the drugs at their

homes. Venneri, the accused, purchased drugs from Dauphin. Following drug seizures from the

homes of Marchand and Bilodeau and the refusal of Dauphin’s source to continue to supply him

with cocaine, Venneri became Dauphin’s supplier. Eventually, Venneri was convicted of

conspiracy to traffic in cocaine, being a member of a criminal organization and knowingly

instructing another person to commit an offence for the benefit of the criminal organization (s

467.13 of the Code), and committing an indictable offence for the benefit of a criminal

organization (s 467.12 of the Code).

[964] The parties in Venneri disagreed on the amount of structure required to support a finding

that a group of three or more persons constituted a criminal organization under the Code. Fish J,

2012 ABQB 521 (CanLII)

Page: 207

who delivered the judgment of the court, favoured the approach taken in Sharifi over that in

Atkins, commenting at para 27:

Some trial courts have found that very little or no organization is required before a

group of individuals are potentially captured by the regime: see R. v. Atkins, 2010

ONCJ 262 (CanLII); R. v. Speak, 2005 CanLII 51121 (Ont. S.C.J.). Others,

properly in my view, have held that while the definition must be applied "flexibly",

structure and continuity are still important features that differentiate criminal

organizations from other groups of offenders who sometimes act in concert: see R.

v. Sharifi, [2011] O.J. No. 3985 (QL) (S.C.J.), at paras. 37 and 39; R. v. Battista,

2011 ONSC 4771, No. 08-G30391, August 9, 2011, at para. 16.

[965] Fish J emphasized that a criminal organization must have some degree of cohesion and

endurance. Serious crime committed by a group of three or more persons for a material benefit

already has been criminalized through the offences of conspiracy, aiding and abetting, and the

"common intention" provisions of the Code. It is the structured nature of criminal organizations

that sets them apart from criminal conspiracies (para 35).

[966] At para 36, Fish J identified the risk sought to be addressed by the criminal organization

provisions of the Code:

Working collectively rather than alone carries with it advantages to criminals who

form or join organized groups of like-minded felons. Organized criminal entities

thrive and expand their reach by developing specializations and dividing labour

accordingly; fostering trust and loyalty within the organization; sharing customers,

financial resources, and insider knowledge; and, in some circumstances,

developing a reputation for violence. A group that operates with even a minimal

degree of organization over a period of time is bound to capitalize on these

advantages and acquire a level of sophistication and expertise that poses an

enhanced threat to the surrounding community. [Emphasis added.]

[967] Fish J rejected the use of a checklist approach in determining whether a group constitutes a

criminal organization, preferring instead to consider all evidence relevant to assessing whether the

group poses an elevated risk to society due to the ongoing and organized association of their

members.

[968] Fish J commented that the parties in Venneri, on appeal to the Supreme Court of Canada,

did not seriously contest the trial judge’s finding that Dauphin operated a large drug trafficking

organization. Fish J concluded that Venneri was an associate of Dauphin’s rather than a member

of the organization as he was an autonomous customer of Dauphin’s and Dauphin was not his sole

supplier. Venneri operated with independence, showed little apparent loyalty to Dauphin and his

group, Dauphin did not exercise any degree of control over him, they did not share mutual clients

and Venneri did not have a financial interest in Dauphin's organization. In contrast, Russell,

Bilodeau and Marchand all acted under Dauphin’s direction and had clearly defined roles. As a

2012 ABQB 521 (CanLII)

Page: 208

supplier, Venneri was just exploiting a business opportunity rather than providing the drugs out of

loyalty to or an interest in Dauphin’s business.

(b) In association with, at the direction of, for the benefit of

[969] 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 (R v Pereira, 2008 BCSC 184; Venneri at

para 51).

[970] According to Fish J in Venneri at para 53, the phrases "in association with," "at the

direction of" and "for the benefit of" are not mutually exclusive. They target offences connected to

the activities of criminal organizations which advance their interests.

[971] Fish J endorsed (at para 55) the following comment on the phrase "in association with"

made by Fuerst J in Lindsay at para 59:

The phrase is intended to apply to those persons who commit criminal offences in

linkage with a criminal organization, even though they are not formal members of

the group.... The phrase "in association with" requires that the accused commit a

criminal offence in connection with the criminal organization. Whether the

particular connection is sufficient to satisfy the "in association with" requirement

will be for a court to determine, based on the facts of the case.

[972] The Crown must establish that the Accused knowingly dealt with a criminal organization

(Venneri at para 57).

2. Co-Conspirators' exception to hearsay in criminal organization

[973] I was not directed to any criminal organization cases that squarely address the question of

whether or not the co-conspirator’s exception to the hearsay rule applies in the proof of criminal

organization offences. There is no question that it applies to the underlying predicate offence of

conspiracy to traffic in cocaine contrary to s 465(1)(c) of the Code if the conditions set out in

Carter are satisfied.

[974] In Pereira, Romilly J considered a constitutional challenge to the criminal organization

provisions. In one section of the judgment, he set out defence counsel's concern with the

application of the Carter test on the issue of criminal organization. The Crown intended to call

evidence of intercepted statements as admissible evidence against the accused on the issue of

criminal organization, although they showed no common design. RomillyJ summarized the

defence objections to such admission as follows (at para 37):

2012 ABQB 521 (CanLII)

Page: 209

Defence counsel submit that the significant point for the purposes of this argument

is that traditionally there have been specific hoops, or reasoning stages, the jury

must go through before it is permissible for the acts and declarations of

coconspirators to be considered on the issue of the accused's guilt. These acts and

declarations are inadmissible for this purpose until the jury is satisfied of the

existence of the conspiracy beyond a reasonable doubt, that the accused is a

member of this conspiracy, and that the acts and declaration are done and made in

furtherance of the object of the conspiracy. As the Crown proposes to present its

case, these significant protective rules no longer operate in the criminal

organization context. Instead, again, the accused will be tarnished by the

statements and activities of the impugned group, even if there is no apparent link

between him and what was said or done by others.

[975] Romilly J went on to consider whether the evidence the Crown proposed to lead on the

existence of a criminal organization would be too prejudicial to the accused. The discussion,

however, focussed on the admissibility of bad character evidence. In the end result, Romilly J

went on to find that ss 467.1 and 467.11-467.13 of the Code are constitutional, but did not

comment on whether the Carter test applies or whether the criminal organization provisions allow

for the admissibility of hearsay using the co-conspirators' exception.

[976] In Atkins, the three accused were among a larger group that was charged as a result of an

investigation into an alleged drug trafficking organization. Harris J accepted the following

statement made in R v Koufis, [1941] SCR 481 as authority for the rule that it is not necessary

that a defendant be charged with conspiracy for the co-conspirator's exception to the hearsay rule

to apply to that defendant:

It is well settled law that any acts done or words spoken in furtherance of the

common design may be given in evidence against all (Paradis v. The King , [1934]

2 D.L.R. 88, S.C.R. 16, 61 Can. C.C. 184). This rule applies to all indictments for

crime, and not only when the indictment is for conspiracy, and it also applies even

if the conspirator whose words or acts are tendered as evidence has not been

indicted (Cloutier v. The King, [1940] 1 D.L.R. 553 at p. 558, S.C.R. at p. 137, 73

Can. C.C. at p. 7).

[977] At para 24 of Atkins, Harris J commented that: “[t]here is considerable speculation that

the criminal organization offences were ‘crafted intentionally to avoid the necessity of proving an

agreement between conspirators and other technicalities' (such as membership): R. v. Terezakis

(supra)."

[978] He concluded at para 27 that:

According to R. v. Sansalone, 2010 ONCA 281 (CanLII), 2010 ONCA 281 (Ont.

CA) when two individuals engage in the distribution of controlled drugs for

consideration, this meets the definition of trafficking contrary to s. 5(1) of the

2012 ABQB 521 (CanLII)

Page: 210

C.D.S.A. "In that sense they conspired in the offence for the purpose of s. 465

(1)(c) and s. 467.12(1) of the Criminal Code". Consequently, in the instant case,

any series of interrelated transactions involving the purchase and sale or

distribution of drugs or unauthorized firearms constitutes a chain of agreements

that amounts to a conspiracy and triggers the co-conspirators exception to the

hearsay rule with the result that the words and actions of others involved in the

conspiracy constitute evidence against each co-conspirator. Accordingly, since

there were a chain of agreements from supplier to Atkins, Dehaney and Wolfe,

hearsay evidence is admissible for the purpose of determining whether, on the

evidence, there existed a criminal organization.

[979] Other courts have considered whether hearsay evidence is admissible on the issue of the

existence of a criminal organization based on the principled approach (necessity and reliability).

In R v Giles, 2007 BCSC 1894, the accused faced charges of possession of cocaine for the

purpose of trafficking and possession of cocaine for the purpose of trafficking for the benefit of, at

the direction of, or in association with a criminal organization; that is, the East End chapter of the

HAMC, contrary to s.467.12(1) of the Code. Some of the accused also were charged with

trafficking in cocaine. The Crown proposed to rely on intercepted communications in proving the

criminal organization. The defence conceded that the evidence of those persons whose

communications were intercepted and who refused to testify were properly admissible under the

principled approach to hearsay. MacKenzie J determined that where the Crown did not make

reasonable efforts to obtain direct evidence from other individuals whose statements were sought

to be adduced, those statements were not admissible under the principled approach. He did not

consider Carter and the co-conspirator’s exception to the hearsay rule.

[980] 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 a 467.12 of the Code 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. As that analysis was undertaken to reach the conclusions respecting the predicate offence

of conspiracy to traffic in cocaine in the present case, it will not be repeated here.

B. Crown’s Arguments

[981] The Crown contends that the cocaine trafficking operation consisting of Caines, his

couriers Flight and Hoskins, and his distributors Marche, Geebs (Bird), Cardinal, McDonald,

Gregoire, Penton and others, constituted a criminal organization.

[982] The Crown submits the evidence establishes that over the course of the offence period

Caines purchased multi-kilogram cocaine shipments and sold the cocaine to his distributors

following an established system. He gave his couriers instructions for picking up the cocaine and

re-distributing it to the other main distributors in Fort McMurray. He selected the distributor he

used to re-distribute the cocaine based on availability, gave him little advance notice and

2012 ABQB 521 (CanLII)

Page: 211

instructed him on where to pick up the cocaine, how much to keep and how much to give to the

others.

[983] The Crown says that Marche testified to an understanding among Caines and his

distributors that they would assist Caines in re-distributing the cocaine among themselves and

they all relied on standard operating procedures.

[984] The Crown maintains that this ongoing agreement demonstrates an organized group with

members of the group having defined roles.

[985] It points to a number of intercepted communications which it contends establish a group

mentality (Tab 190 and 116).

[986] The Crown relies in part on the text messages at Tab 129. It suggests that these show that

Cardinal was seeking permission from Caines to add Sekulich to his team of dealers.

[987] The Crown also cites the call at Tab 460 as demonstrating that there was a hierarchy

within the organization and that Caines was possessive of his distributors, referring to them as

“my guys.”

[988] The Crown suggests that the calls at Tabs 277 and 291 establish that Caines’ relationship

with his distributors went beyond a retailer-customer relationship and that he would assist them in

their trafficking business when necessary.

C. Defence Arguments

[989] The main contention of the Accused on Count #3 is that the criteria for a criminal

organization are not met in this case.

[990] Knapczyk submits that there is no evidence of a conspiracy or trafficking engaged in by

him and there is insufficient evidence to establish the existence of a criminal organization.

[991] Knapczyk contends that Marche provided evidence that undermines any suggestion that

trafficking activities by Caines and others in Fort McMurray in 2005 were undertaken as a

criminal organization:

C Marche was not aware of or looking to join any type of group organized by

Caines when he first approached Caines as a supplier;

C Marche was not aware of any group Caines had organized at the time;

C His relationship with Caines was just to purchase drugs from him, as he did

with Sekulich;

2012 ABQB 521 (CanLII)

Page: 212

C Caines did not give him instructions on how to sell drugs;

C Caines did not ask who his customers were;

C Caines did not assign him an area in which to sell drugs;

C Caines had no direct influence on how Marche sold drugs;

C Caines did not instruct Marche to break the cocaine down into smaller

units;

C Caines did not place restrictions on what Marche could do with the drugs;

C Marche paid Caines based on the volume of drugs he received, not what he

sold them for;

C Marche was not aware of any arrangements for protection of group

members;

C Marche and members of the group did not share customer lists, nor help

each other to make a sale;

C members of the group did not pool their money and they did not share their

profits;

C there was no agreement among members of the group in terms of prices to

charge for drugs;

C the group did not have a name and did not meet as a group;

C Marche bought cocaine from others;

C Marche was not compensated for anything he did for Caines;

C Marche did not regard Caines as being in a position to force him to do

anything;

C favours that Marche did for Caines were for his own benefit; i.e. switching

the bad cocaine for better quality cocaine, meeting people bringing cocaine

into Fort McMurray, storing cocaine.

[992] The Accused argue that Caines’ operation displayed neither cohesiveness not endurance.

There was no fostering of loyalty or trust. Caines’ customers did not buy exclusively from him nor

did he sell exclusively to one group of customers. There was no sharing of customers, financial

2012 ABQB 521 (CanLII)

Page: 213

resources or insider knowledge. The operation did not have a reputation for violence. There was

no apparent expansion of the operation’s reach, nor intent to do so. At times, labour was divided

between customers and couriers, but not according to specialized skill acquired through

participation in the operation. No single courier remained with the operation for any length of

time and Caines’ customers sometimes acted as couriers.

[993] The Accused say that despite the operation enduring for some time, it remained

unsophisticated and the participants acquired no expertise.

[994] The Accused suggest that, based on Fish J’s reasons for finding that Venneri was not a

member of Dauphin’s organization in Venneri, it is doubtful that even Marche, Caines’ go-to guy,

would qualify as a “member” given there was no interdependence or loyalty apparent among those

involved in the operation. They argue that, as a result, there is no basis for a finding that Caines

and any two other individuals were members of a criminal organization.

[995] Knapczyk submits that there is no evidence he had knowledge of or an intention to assist a

criminal organization. He maintains that even if the Court accepts that he knew he was helping

Caines, that is not enough for a conviction of assisting a criminal organization.

[996] Knapczyk says that, on the evidence before the Court, it is reasonable to infer he interacted

with Caines for the sole purpose of investigating the alleged misconduct of HAMC members, but

there is no evidence he performed any act or committed any offence “with and for” Caines’

operation. Nor is there evidence he knew the degree of structure or continuity of the operation.

Therefore, he cannot be said to have “knowingly” dealt with a criminal organization

D. Analysis

1. Criminal organization

[997] Marche testified that he started to buy cocaine from Caines and to sell if to lower level

traffickers in the fall of 2004, after Sekulich returned to jail. Within a fairly short amount of time,

a pattern seemed to develop whereby he would receive a quantity of cocaine from Caines. He

would then be instructed by Caines to divide it up, keep a portion for himself and deliver the

remainder to another distributor. He would owe Caines for his portion but not for the other

person’s. Caines would select different distributors to divide up and deliver the cocaine. This

pattern continued until at least the time of the Cardinal seizure on January 17, 2006.

(a) Longevity

[998] While much of the evidence presented at trial dealt with the period July 2005 to January

2006, it is apparent from Marche’s evidence that the Caines’ trafficking group had an even greater

lifespan. In my view, the longevity or continuity necessary to find a criminal organization has

been established.

2012 ABQB 521 (CanLII)

Page: 214

(b) Structure and membership

[999] The second major criteria of a criminal organization is some form of structure. According

to Fish J in Venneri at para 31: "... the phrase ‘however organized’ is meant to capture differently

structured criminal organizations. But the group must nonetheless, at least to some degree, be

organized.” As was the situation in Venneri, the group in this case had someone at the head of it

who arranged for the supply of cocaine and instructed who was to store it and how it was to be

divided up among a number of distributors.

[1000] I have already found that Caines was the head of this cocaine trafficking conspiracy in Fort

McMurray and that Marche’s role in the conspiracy was to distribute the cocaine supplied by

Caines to street level dealers. I have accepted Marche’s evidence that, at Caines’ direction, he or

one of Caines’ other distributors would pick up kilograms of cocaine delivered to Fort McMurray,

store it temporarily and then distribute quantities of the cocaine to the other distributors. I agree

with the Crown that Caines followed more or less a standard operating procedure in that respect,

although he used different distributors at different times, depending on their availability. I have

determined that Cardinal, McDonald, Gregoire, Bird, and Penton were probably members of the

conspiracy and played a role similar to that of Marche. I have concluded that Flight and Hoskins

were probably members of the conspiracy, acting primarily or in part as couriers of cocaine and

drug proceeds. Marche and possibly the other distributors also acted as couriers for Caines on

occasion. Caines Sr. was probably a member of the conspiracy, although he appears to have had a

somewhat peripheral role as a counter and collector of drug proceeds.

[1001] Marche initially testified that from the time of the Showgirls incident to his first statement

to Sgt. Anderson on February 23, 2006, he considered himself to be part of a group comprised of

Caines, McDonald, Gregoire, Geebs (Bird), himself and, later, Cardinal. He said that others such

as Jody Smith, Chad and Cliff, came into the group and then left. In re-direct, he backtracked

somewhat and said “no” when asked whether, as far as he was concerned, he had entered a group,

explaining that he referred to himself, McDonald, Geebs and Cal and Cardinal as a group because

they all bought drugs from Caines.

[1002] Marche may not have been under the impression he was entering a group when he first

began to purchase large quantities of cocaine from Caines. That is to be expected. Caines would

not have been certain that Marche could be trusted. Caines appears to have tested Marche by

allowing him to purchase increasingly larger quantities of cocaine, first from someone in the

lower echelon and then directly from himself.

[1003] In any event, whether Marche considered himself to be part of a group or not is not

determinative.

[1004] Membership in the group was not necessarily static. It varied as new members, such as

Cardinal, joined and as other members of the group were arrested and jailed.

2012 ABQB 521 (CanLII)

Page: 215

[1005] There is no evidence that the Caines group had a name. They did not adopt a form of

uniform. Marche said that the members did not meet as a group. However, Caines and certain of

the individuals I have found were probably co-conspirators used the same form of coded language

when discussing drug transactions. They had nicknames for one another. Caines had his main

distributors and couriers listed in the phone book of one or more of his telephones. Marche

testified that Caines supplied him with his work phones - a Blackberry and pay-as-you go phone,

and Caines’ phone number was pre-programmed into the address book. Weiss’ cell phone, which

Marche admitted using, contained the phone numbers for Caines, Gregoire, Hoskins, Felix,

McDonald, Bird and Smith.

[1006] Calls and text messages to and from Caines and the individuals I have found to have been

his distributors and couriers were intercepted which implicated them in the conspiracy. Marche’s

testimony together with the evidence relating to the Gregoire and Cardinal seizures establish that

the distributors co-operated in receiving shipments of cocaine, storing it and ensuring that the

others obtained their share of the shipment, all at Caines’ instructions. Clearly, doing so was for

their own benefit. That does not negate the fact that their co-operation was of benefit to Caines

and the other distributors as well.

(d) Business and personal relationships

[1007] In a number of intercepted communications, Caines referred to “my friends” or “my guys.”

For example, in the call at Tab 84, Caines told Alcantara that the guy who had pissed him off last

week was not gone, that “...he just caused harm to one of my friends.” At Tab 224, a text

message was sent from Caines’ phone number to Bird’s phone number saying: “I need you to get

that paper to my guy before nine in the morning or else ill kick down on you.” In the call at

Tab 367, Caines told King: “... they went to all my guys yesterday and threatened them all, told

them I was fuckin’ dead and everything.” In the call at Tab 371, Caines complained to Sukys

about the stolen cocaine. He said: “Okay, well he went and fuckin’, fuckin’ seen one of my guys,

and fuckin’ took somethin’ that belonged to somebody else, and I owe for it. Now I’m in fuckin’

shit, and he’s pissed off, so.” In the call at Tabs 372 and 373, Caines told Knapczyk: “He fuckin’,

he went to one of my fuckin’ and took something that wasn’t his.” Also, in the call at Tab 460,

Alcantara asked Caines if someone in his camp had talked to “those guys.” Caines said “No... I

don’t even know this guy. I’ve met him once... One of my guy’s guys. He’s not one of my guys,

right? He’s... down the ladder like, a long ways.”

[1008] In my view, these calls indicate that Caines considered certain “guys” to be part of his

group. I am aware that in the call at Tab 350 with Scott Stafford Cortes, who was in the Grande

Cache Institution, Caines claimed that he just hung out with McDonald and Marche but barely

even knew them. This is not necessarily inconsistent with a finding that McDonald and Marche

were part of a structured group or organization with Caines at the head. It may simply be

reflective of Caines’ reluctance to admit a closer association with two individuals Cortes

considered stupid for having been caught “sitting on” such large quantities of cocaine.

2012 ABQB 521 (CanLII)

Page: 216

[1009] The Accused say that Marche’s relationship with Caines was simply that of purchaser to

supplier, as was his relationship with Sekulich. However, that is not what the evidence discloses.

Marche did more than buy drugs from Caines. He carried drug proceeds to Calgary at his request,

he picked up kilograms of cocaine in Calgary at his request, he exchanged a kilogram of bad

cocaine for cocaine of better quality in Calgary at his request, he met couriers arriving in Fort

McMurray with cocaine at his request, he stored cocaine at his request and he distributed cocaine

to other kilogram-level traffickers at his request.

(e) Profit

[1010] Marche initially testified that the purpose of the group was to profit from the sale of

cocaine. As noted by the Accused, Caines did not tell his distributors who they could sell the

cocaine to or dictate the price at which they could sell it. He obtained his profit from the sale of

cocaine to his distributors and I have no doubt that, to the extent he cared, he assumed they would

charge a price for the cocaine which would ensure them a profit. Marche said that the distributors

purchased from Caines since he had the best quality cocaine at the best price. It may have been out

of self-interest that distributors such as Marche belonged to the group, but Caines’ provision of

the best product for the price was a way in which to ensure a degree of loyalty, as was extending

credit to them. This is no different than any other business.

(f) Trust among members

[1011] There was a measure of trust within the group. According to Marche’s evidence, Caines

trusted him to take a backpack full of cash, $50,000 to $100,000, and meet a guy at the Sawridge

Hotel, who was to give him two to five kilograms of cocaine. Caines trusted Marche and Hoskins

to carry $80,000 to Calgary. He trusted Marche and Weiss to take a bag full of cash to Calgary in

order to pay for several kilograms of cocaine. He trusted Marche with the garage door code to his

Fort McMurray residence so that he could drop off drug proceeds. He trusted Flight to receive

drug proceeds on his behalf from the distributors. He trusted Marche to bring more than a

kilogram of bad cocaine down to Calgary and exchange it for better quality cocaine. On another

occasion, he trusted Marche to transport another three kilograms of cocaine from Calgary back to

Fort McMurray. He trusted Marche to meet girls who arrived in Fort McMurray by bus, someone

who arrived at the edge of the city, and a guy he was to meet at the Sawridge, with quantities of

cocaine. He trusted Marche, Gregoire and Cardinal to store cocaine until the other distributors

could pick up their share. He trusted them to deliver it to the other distributors. In addition, he

trusted them to pay their very large debts to him, which he kept track of using score sheets.

Clearly, it was a matter of trust as Caines was liable for the shipments of cocaine he arranged for

as evidenced by his concern he would be responsible for paying for the stolen kilogram of cocaine

(Tab 371).

2012 ABQB 521 (CanLII)

Page: 217

(g) Buying and selling cocaine outside of the group

[1012] Marche testified that other people purchased cocaine from Caines. Marche and, indeed, the

other distributors, may not have known all of the individuals with whom Caines did business.

That does not mean that this was not a criminal organization. It simply means that the

organization may have been larger than Marche realized or had a need to know about.

[1013] Marche also said that he bought cocaine from other suppliers. However, there is no

suggestion that this was routine and it is apparent from the only such incident disclosed by the

wiretaps that this was not acceptable to Caines. As noted above, in the call at Tab 220 on

November 4, 2005, Marche told Caines: “There’s about twenty-four and I got about ten

rolling in... I’ll, I’ll return fucking everything I got. I barely sold anything from him...I had

no idea.... I, I honestly thought that was alright, because fucking we’ve been sitting in the

weeds...” Caines said he could understand if Marche had borrowed a couple to get by, but...

Marche apologized. Caines said: “That guy’s gonna get smashed for doing that.” Caines told

Marche to quit trying to piss him off. Marche promised to clear everything with him first from

now on. Even if Caines did not directly threaten Marche, he did indicate that the other supplier

was going to suffer physical consequences for competing with him.

[1014] Marche immediately apologized to Caines for buying cocaine from another supplier and

said that he would clear everything with him from now on. As noted above, Marche testified that

he and the other distributors bought their cocaine from Caines because it was of better quality and

they were charged a lower price for it. Even if he did not apologize to Caines because he felt that

he was being threatened with physical violence, undoubtedly he would have known that Caines

could cut him off from the supply of superior, less expensive cocaine if he made a habit of buying

from anyone attempting to compete with Caines.

(h) Violence and threats of violence to protect the organization

and its business

[1015] The distributors appear to have looked to Caines to maintain order and Caines certainly

was prepared to directly or impliedly threaten violence to those who crossed him.

[1016] In the call at Tab 116, Penton asked Caines to call “fucking Mac ... and tell him to fuck

off...cause he’s tryin” to jack Jamie’s phone last night.” In the call at Tab 190, Caines directed an

unknown male to pass on a threat. The unknown male told Caines: “... I'm gonna go fuckin' chase

these fuckers down, the fuck. Chase these fuckers down... have a chat... So, I guess I should get a

hold of Pat in a bit. Are you with Pat?" Caines responded: "Go, uh, fuckin' get a hold of that fat

fuckin' Indian and tell him to fuckin' get his shit together or else I'm gonna fuckin', he's

gonna pay consequences." The unknown male asked: "Does he owe you?" Caines said: "Well,

not just that, but, get him back on the team." The unknown male said “okay” and he would see

what he could do.

2012 ABQB 521 (CanLII)

Page: 218

[1024] In Caines' call with Penton at Tab 195, Penton said: "... I heard some shit. And he's the -

this Robert guy that used to work for Mobily, I guess he still did offer in it, uh, one of my guys for

ten fifty... And I heard Mobily is getting them for twenty-seven." Caines responded: "Yeah. Well,

go knock him out.... Yeah. Well, I'm gonna meet up with him next week and knock him out

anyway." Penton offered to go with him and said he would try to find a couple of other people

too.

[1017] In his call at Tab 220 with Marche, Caines indicated that the guy who had sold cocaine to

Marche was “gonna get smashed for doing that.” In a call at Tab 277, someone by the name of

Tarrant complained to Caines about “some people around town” who were “getting in the way or

whatever...They’re hurting or whatever like that. They’re trying to roll me, roll up on me and

coming in my house and shit like that.” Caines told Tarrant: "Phone me tomorrow. I'll fix your

problem."

[1018] I have accepted Mr. Lemieux’s evidence that, within the criminal milieu, the HAMC has a

reputation of violence, intimidation and being capable of taking care of business.

[1019] In Caines' call with Knapczyk at Tab 393, he expressed disappointment that neither

Knapczyk nor his buddies would be at the party at Showgirls, as he "...didn't wanna fuckin'

have to get my shirt dirty...," which I take to mean that with members of the HAMC in

attendance with him, he would not have to fight his own battles. He would be telling the criminal

milieu and the community that he had HAMC associates.

[1020] I have accepted Mr. Walker’s evidence that in May or June 2005, Caines entered Cowboys

Saloon in the company of eight to ten men, two of whom were garbed in HAMC colours. Without

the need to say anything, that would have conveyed a message to anyone in the criminal milieu

who was in the saloon or who heard about the incident that Caines had powerful friends with a

reputation for violence.

[1021] Further, I have accepted Marche’s evidence concerning the Showgirl’s incident that in July

2005, Caines had him round up a number of troublemakers, including individuals who were

causing problems for his dealers or the dealers of the others in the group or who were selling

cocaine for cheaper and to bring them to Showgirls, where they were met by Caines and a group

of other men.

[1022] I have found that Alcantara and Knapczyk, a prospect and member of the HAMC

respectively, conspired with Caines and others in the cocaine trafficking business, by their

agreement to enforce and protect Caines’ cocaine trafficking business against competitors,

interlopers and other interference with the conduct of the business. I have concluded above that

the services of Alcantara and Knapczyk were engaged for solving the problem of theft of cocaine,

the bullying of Caines’ guys, the removal of unwanted competition and dealing with price fixing

(Alcantara).

2012 ABQB 521 (CanLII)

Page: 219

(i) Caines directing the organization

[1023] Marche testified about Caines instructing him to do certain things. During cross-

examination, he conceded that these were “requests” and that Caines did not force him to do

anything. The actions Marche undertook in picking up shipments of cocaine in Fort McMurray,

taking drug proceeds and a quantity of bad cocaine down to Calgary, transporting cocaine from

Calgary to Fort McMurray, storing the cocaine and ensuring that the other distributors received

their share, may have been in response to requests from Caines and motivated in part by self-

interest. Nevertheless, it is clear that Caines was orchestrating the purchase of multi-kilogram

quantities of cocaine, the transportation of that cocaine to Fort McMurray, the storage of that

cocaine and its division and distribution to Marche and his fellow distributors.

[1024] In my view, it is artificial to refer to the instructions from Caines as being “requests,”

given Marche and the other distributors were kept in debt to Caines, he was their main cocaine

supplier (or at least the supplier of the best cocaine for the price) and it appeared as though he was

prepared to use “muscle” when necessary to protect the efficacy of the business.

(j) Territory, price fixing and protection

[1025] As noted by the Accused, Marche did not say that Caines assigned his distributors discrete

areas in Fort McMurray within which to traffic cocaine. In my view, the Crown’s theory that there

was an exclusivity agreement in the form of a particular territory exclusively protected for the

Caines organization has not been proven. Large quantities of cocaine were being sold in Fort

McMurray. Assigning territories may not have been necessary. As Alcantara told “Joe” while

discussing price fixing (Tab 416): “Well. No. No one’s sayin’ you can’t be there...There’s

certain rules and ah, you know?”

[1026] Alcantara told Grimolfson (Tabs 411, 412): “I’m not saying don’t be here, don’t be there...

I’m just trying to come to an agreement.”

[1027] Knapczyk pointed out that Marche was not aware of any arrangements for protection of

group members. However, it was Marche’s understanding that Caines would pay for their legal

representation if any of the “group” was arrested, although the evidence is unclear as to whether

this occurred when Marche was arrested. Marche said there was no specific understanding among

the individuals in the group as to what would occur if one of them was harmed. However, he

believed that when Jody Smith was hit over the head with a bat by someone outside of the group,

phone calls were made. In other words, Marche understood that the conflict would be dealt with in

some fashion. Intercepted communications such as those at Tabs 116 and 277 indicate that

individuals involved in the organization looked to Caines as a problem solver.

(k) Conclusion on criminal organization

[1028] 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

2012 ABQB 521 (CanLII)

Page: 220

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 or their normal role.

[1029] Like Dauphin’s group in Venneri, I find that this was a large cocaine trafficking

organization. I am mindful of the direction from Fish J for the majority in Venneri at para 36 that

this type of collective group effort by like minded felons carries advantages: people are

responsible for different aspects of the organization, thereby developing their expertise, which

includes avoiding detection and sharing both the risks and the benefits of a large and lucrative

operation. It is no accident that this occurred in the community of Fort McMurray, which is well

known to have high income levels, the fruits of which are ripe for the felonious picking. Fish J

noted that a “... group that operates with even a minimal degree of organization over a period of

time is bound to capitalize on these advantages and acquire a level of sophistication and expertise

that poses an enhanced threat to the surrounding community.” I find those words are apt here: the

Caines criminal organization capitalized on the advantages of a collective endeavour and posed an

enhanced risk to the community of Fort McMurray because of it.

[1030] Although this is not a group that conformed to the stereotypical model of organized crime,

the Supreme Court of Canada in Venneri has made clear that the criminal organization provisions

of the Code cast a wider net. At para 41, Fish J stated:

Courts must not limit the scope of the provision to the stereotypical model of

organized crime -- that is, to the highly sophisticated, hierarchical and

monopolistic model. Some criminal entities that do not fit the conventional

paradigm of organized crime may nonetheless, on account of their cohesiveness

and endurance, pose the type of heightened threat contemplated by the legislative

scheme.

[1031] The Caines organization had a structure that facilitated bringing cocaine into Fort

McMurray at the multi-kilogram level for his distributors (Marche, McDonald, Gregoire, Bird,

Cardinal, Penton), who would then sell the cocaine to their own network of street level dealers.

He had couriers (Flight, Hoskins, and sometimes Marche ) who would transport the drugs and

payment and pick up the proceeds. He used threats of violence to enforce his will and protect his

business operation from competition and interference, as did people within his organization (such

as Penton). He also outsourced the enforcement and protection of his business operations to

others, including the unknown males who came to deal with the “riff raff’ during the Showgirls

incident, and Alcantara and Knapczyk, respectively a prospect and member of the HAMC. By its

alliance with Alcantara and Knapczyk, with their HAMC association, the Caines criminal

organization invoked the reputation of the HAMC for violence and intimidation as a warning to

the criminal milieu, including competitors in the drug trafficking world and others in the

community, that the organization had “muscle” to protect its trafficking activities.

2012 ABQB 521 (CanLII)

Page: 221

[1032] The Caines organization was a structured group that was composed of three or more

persons in Canada, and that had as one of its main purposes or activities the facilitation of a

serious offence, conspiring to traffic in cocaine, that resulted in the direct receipt of a financial

benefit by the group or by the persons who constituted the group.

2. In association with, at the direction of, for the benefit of

[1033] I have found that Alcantara and Knapczyk conspired with Caines and others to traffic in

cocaine in Fort McMurray. Alcantara and Knapczyk brought to the conspiracy their agreement to

enforce and protect the organization, to solve its problems (competition from unwanted people,

theft, bullying), and brought their membership as prospect and full member in the HAMC, along

with the reputation of the HAMC. It does not matter whether the reputation of the HAMC in the

criminal milieu is justified or not, since the implied message or threat carried by the reputation

would be sufficient to maintain order among the distributors, couriers, and the lower level

traffickers. The contribution of the Accused to the conspiracy, and to the criminal organization,

was to enforce and protect the business of Caines’ criminal organization in its trafficking

activities.

[1034] In my view, the Accused were acting "in association with" the Caines criminal

organization, they committed a criminal offence (conspiracy to traffic in cocaine) in linkage with

the Caines criminal organization, and their participation in the conspiracy was for the benefit of

the Caines criminal organization.

3. Mens rea

[1035] I find that Alcantara and Knapczyk knew they were dealing with a criminal organization.

They met with Caines, were told of problems that arose in the Caines trafficking organization,

including the theft of cocaine and the bullying of Caines’ guys, and they undertook to solve those

problems in association with and for the benefit of that organization.

4. Conclusion on Count #3

[1036] The Crown has proven beyond a reasonable doubt that Alcantara and Knapczyk are guilty

of conspiring with Caines, Marche and others to traffic in cocaine, and that Alcantara and

Knapczyk did so in association with and for the benefit of a criminal organization, between

August 2005 and January 2006.

VIII. Conclusions

[1037] I conclude:

Count #1 Alcantara and Knapczyk are guilty of conspiring to traffic in

cocaine between August 2005 and January 2006.

2012 ABQB 521 (CanLII)

Page: 222

Count #2 Alcantara or Knapczyk are acquitted on the charge of trafficking in

cocaine.

Count #3 Alcantara and Knapczyk are guilty of conspiring to traffic in

cocaine between August 2005 and January 2006, in association with

and for the benefit of a criminal organization.

Heard on December 10, 11, 15-17, 2009; January 23, 24, 25, 26, 30 and 31, 2012; February 1, 2,

7, 8, 27, 28 and 29, 2012; March 1, 5, 6, 7, 8, 12, 13, 14, 15, 26, 27, 28 and 29, 2012; April 3, 4,

5, 16, 17, 18 and 24, 2012; May 7, 8, 9, 10, 11, 15, 16 and 28, 2012; June 4, 5, 18, 19, 21, 25, 26

and 27, 2012 (not including voir dire sitting days).

Dated at the City of Edmonton, Alberta this 17 day of August, 2012.

S.J. Greckol

J.C.Q.B.A.

Appearances:

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 Respondent Crown

2012 ABQB 521 (CanLII)