IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ALBERTA COURT OF APPEAL) ALAN PETER KNAPCZYK. and HER MAJESTY THE QUEEN JOHN REGINALD ALCANTARA

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1 File Number: and BETWEEN: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ALBERTA COURT OF APPEAL) AND: ALAN PETER KNAPCZYK and HER MAJESTY THE QUEEN Appellant (Respondent) Respondent (Appellant) JOHN REGINALD ALCANTARA and HER MAJESTY THE QUEEN Appellant (Respondent) Respondent (Appellant) RESPONDENT S FACTUM (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) Public Prosecution Service of Canada Alberta Regional Office 700, Epcor Tower Street Edmonton, Alberta T5H 0E7 Ron Reimer and Jonathan Martin Telephone: Facsimile: ron.reimer@ppsc-sppc.gc.ca; jonathan.martin@ppsc-sppc.gc.ca Counsel for the respondent, Her Majesty the Queen Brian Saunders, Q.C. Director of Public Prosecutions 160 Elgin Street, 12th Floor Ottawa ON K1A 0H8 François Lacasse Tel: Fax: flacasse@ppsc-sppc.gc.ca Ottawa agent for the respondent, Her Majesty the Queen

2 ii Simon Renouf Professional Corporation 1710, A Avenue Edmonton, Alberta T5J 3G2 Simon Renouf, Q.C. Telephone: Facsimile: renouf@renouflaw.com Counsel for the appellant, Alan Peter Knapczyk Evans Fagan Rice McKay Barristers & Solicitors 1117 First Street SW, Suite 203 Calgary, Alberta T2R 0T9 A. Clayton Rice Telephone: Facsimile: claytonrice@claytonrice.com Counsel for the appellant, John Reginald Alcantara Supreme Advocacy LLP Barristers and Solicitors Gilmour Street Ottawa, ON K2P 0R3 Marie-France Major Tel: Ext: 102 Fax: mfmajor@supremeadvocacy.ca Ottawa agent for the appellant, Alan Peter Knapczyk Supreme Advocacy LLP Barristers and Solicitors Gilmour Street Ottawa, ON K2P 0R3 Marie-France Major Tel: Ext: 102 Fax: mfmajor@supremeadvocacy.ca Ottawa agent for the appellant, John Reginald Alcantara

3 i TABLE OF CONTENTS PART I FACTS AND OVERVIEW... 1 Overview... 1 Statement of Facts... 2 Reasons for Acquitting the Appellants of Trafficking The Crown s Appeal to the Alberta Court of Appeal The Unanimous Decision of the Alberta Court of Appeal PART II POSITION OF THE RESPONDENT ON THE QUESTIONS IN ISSUE Question raised by the appellant on which this as of right appeal arises A. Did the Court of Appeal correctly conclude that the trial judge erred in law by not convicting the appellants of trafficking for acts that assisted or encouraged the operation of Caines s cocaine distribution business despite a lack of evidence demonstrating that the appellants aided or abetted any specific instance of cocaine trafficking? Additional question raised by the respondent in support of the order convicting the appellants B. Did the trial judge err in law in failing to convict the appellants on the basis of s. 21(2) of the Criminal Code? PART III ARGUMENT A. The Court of Appeal was correct to convict the appellants of cocaine trafficking The trial judge s finding of insufficient nexus involved legal error about causation The trial judge also erred in law by not considering whether the appellants actions abetted the offence of trafficking by the Caines group It is unnecessary to relate the assistance and encouragement provided by the appellants to particular instances of trafficking; they aided and abetted the distribution enterprise as a whole The appellants are party to all cocaine transactions during their watch B. In the alternative, the conviction of the appellants is mandated by s. 21(2) of the Criminal Code Section 21(2) of the Criminal Code is relevant to this case PART IV COSTS PART V ORDER SOUGHT... 28

4 ii PART VI TABLE OF AUTHORITIES PART VII LEGISLATION... 31

5 1 PART I FACTS AND OVERVIEW Overview 1. The Court of Appeal was correct to allow this Crown appeal from acquittal because the trial judge found all of the facts necessary to conclude that the appellants were party to the offence of cocaine trafficking but reached the wrong legal conclusion in acquitting them of that offence. The trial judge convicted the appellants of conspiring to traffic cocaine and of committing that offence in association with a criminal (drug trafficking) organization. The trial judge found that the appellants performed their agreed role and that large-scale cocaine trafficking was actually carried out by their accomplices. Those fact findings mandate that the appellants also be convicted for their complicity in the substantive offence of cocaine trafficking perpetrated by their coconspirators. 2. The trial judge found the appellants guilty of conspiracy by virtue of their agreement to facilitate protection of a wholesale cocaine distribution business of a criminal organization headed by Jeff Caines operating in the then resource rich Alberta boomtown of Fort McMurray, during a nine-month period in 2005 and The gravamen of the offences for which the appellants were convicted was an arrangement whereby Caines, in return for a regular tax on his illicit operation, enjoyed the support of the Hells Angels Motorcycle Club ( HAMC ), with its reputation within the criminal milieu for ruthless violence. The appellants, Alcantara and Knapczyk, were members of the Edmonton Chapter of the HAMC and the trial judge found that both appellants not only agreed to facilitate HAMC support to advance Caines massive drug trafficking operation, but also took actions in furtherance of their agreed role. 3. In this case, the charge of aiding or abetting trafficking alleged against the appellants was the substantive flip side of the count of conspiracy of which they were found guilty. This was not a case of conspiracy thwarted by detection before it could be carried out; the existence of the agreement underlying the conspiracy was inferred from proof of what the appellants and their coconspirators had actually done. The criminal transaction alleged by the trafficking count reflected the achievement of the object of the conspiracy the operation of a wholesale cocaine distribution business over many months. Therefore, liability as a party to trafficking under s. 21 of the Criminal Code was logically mandated by the trial judge s findings of fact. The trial judge found that the appellants took actions to fulfill their agreement to provide HAMC-backing to support a criminal LEGAL_1:

6 2 organization that had the express purpose of distributing cocaine and which was shown to have distributed countless kilograms of that drug. Liability under s. 21(1) of the Criminal Code follows when acts are done that either assist or encourage the commission of the offence by perpetrators provided those acts are done for that purpose. The conclusion that the appellants were party to the distribution of cocaine by the Caines criminal organization is axiomatic based upon the facts found by the trial judge. 4. Alternatively, liability under s. 21(2) of the Criminal Code flows when the actual perpetrators commit offences reasonably foreseen as a result of a common unlawful purpose. The fact findings made by the trial judge show that the appellants formed an intention in common with Jeff Caines and members of his criminal organization to carry out several unlawful purposes and to assist each other therein, namely,: committing the crime of conspiracy, committing that crime in association with a criminal organization, possessing the proceeds of cocaine trafficking and, trafficking in those proceeds. The trial judge also found that Caines and the members of his criminal organization operated a cocaine distribution business and actually trafficked countless kilograms of cocaine over a period of several months duration. In light of these fact findings, the appellants are legally complicit in the cocaine trafficking as parties to the several common unlawful purposes because they well knew that cocaine trafficking by their co-actors was a plainly foreseeable consequence of their common unlawful purposes. 5. Therefore, the Court of Appeal was correct to substitute a conviction in these circumstances. The appeal to this Court should be dismissed. Statement of Facts 6. The appellants were jointly charged with Jeff Caines by an Indictment that alleged the following three counts against them: 1. Between the 1 st day of July, 2005, and the 31 st day of March, 2006, both dates inclusive, at or near the City of Fort McMurray, at or near the City of Edmonton, at or near the City of Calgary and elsewhere in the Province of Alberta, did conspire together and with Aaron Pat McDonald, Jody Smith, Michael Francis Marche, Cal Gregoire, Jeremy Cardinal, Charles Weston Flight, John Norman Caines, Ricco King, Melissa Diane King, Mark Andrew Hoskins, Farhan Sattar, Kamran Sattar, James Richard Correia, Patrick Felix, Anthony Saunders, Beau Yakimishyn, Josh Penton, Nicholas Bela Van Den Hurk and with persons unknown, the one with the other or others of them, to commit the indictable offence

7 3 of unlawfully trafficking in a controlled substance, to wit: Cocaine, contrary to Section 5(1) of the Controlled Drugs and Substance Act and did thereby commit an offence, contrary to Section 465(1)(c) of the Criminal Code. 2. Between the 1 st day of July, 2005, and the 31 st day of March, 2006, both dates inclusive, at or near the City of Fort McMurray, in [the] Province of Alberta, did unlawfully traffic in a controlled substance[e] to wit: Cocaine, contrary to Section 5(1) of the Controlled Drugs an[d] Substances Act. 3. Between the 22 nd day of August, 2005, and the 14 th day of February, 2006, both dates inclusive, at or near the City of Fort McMurray, at or near the City of Edmonton and elsewhere in the Province of Alberta, did commit the indictable offence of conspiracy, contrary to Section 465(1)(c) of the Criminal Code and the indictable offence of unlawfully trafficking in a controlled substance, to wit: Cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act, for the benefit of, at the direction of, or in association with a criminal organization of at least three of the following persons: Jeffrey Mark Caines, Aaron Patrick McDonald, Michael Francis Marche, Cal Gregoire, Jeremy Cardinal, Charles Weston Flight, Mark Andrew Hoskins and persons unknown and did thereby commit an offence contrary to Section of the Criminal Code The trial in this matter commenced on 10 December After many months of defence applications for Charter based relief, the Crown presented its evidence in support of the charges alleged in the indictment. The verdicts in this judge alone trial were delivered in a written decision of 213 pages on 17 August Both appellants were convicted on each of counts 1 (conspiracy to traffic cocaine) and 3 (committing that offence in association with a criminal organization). Both men were acquitted on count 2 (trafficking cocaine). 8. The Crown s case included hundreds of intercepted private communications, evidence of significant drug seizures, physical surveillance of the appellants and their co-conspirators, the testimony of two expert witnesses, 3 and the preliminary inquiry testimony of Michael Marche, since deceased, who had testified as a cooperating accomplice. During the period encompassed by 1 Joint Appellants Record [( JAR ), Tab 12]. 2 Reasons for Judgment of the Honourable Madam Justice SJ Greckol, 2012 ABQB 521, ( Reasons ), [JAR, Tab 2]. 3 A drug trafficking expert, Sgt. Stapleton, provided opinion evidence in support of the Crown s interpretation of drug jargon, distribution patterns, packaging and pricing in See Reasons JAR, supra note 2 at 62, para 97 to 65, para 116. Formerly Staff Sergeant Lemieux of the RCMP provided expert evidence on the nature and characteristics of the HAMC. See Reasons, JAR, supra note 2 at 67, para 121 to 74, para 155.

8 4 the indictment, Michael Marche was a significant participant in the Caines criminal organization. He was one of Caines s main cocaine distributors in Fort McMurray. He was also used by Caines to hold cocaine for other distributors and on some occasions he functioned as a courier to convey drug proceeds from himself and other distributors and to obtain cocaine from suppliers in Calgary. Marche was caught by police while attempting to bring three kilograms of cocaine back to Fort McMurray for distribution by the Caines criminal organization. He was also a police informer during the timeframe covered by the Indictment and his inside knowledge of the workings of cocaine business run by Caines was communicated to police and resulted in seizures of cocaine, cash or other incriminating evidence from various members of the Caines criminal organization, including Caines. He waived informer privilege for the purpose of testifying about his knowledge of these events The trial judge accepted that the totality of the evidence established a cocaine distribution business that was headed by Jeff Caines who maintained residences in both Fort McMurray and Calgary, Alberta. The cocaine business involved a group of several key distributors including Michael Marche, suppliers in Calgary from whom Caines obtained multi-kilogram quantities of cocaine, couriers who were used to move the drug proceeds and supplies of cocaine between the two cities and a network of lower level distributors who purchased their cocaine from members of the Caines group. The trial judge found that this conspiracy had been put into effect and was operating for many months as evinced by the several significant cocaine seizures carried out by the police, the testimony of Michael Marche, and interceptions of Jeff Caines directing this operation on a daily basis It was the theory of the Crown, ultimately accepted by the trial judge, that an important facet of the cocaine distribution conspiracy/criminal organization headed by Caines was a protection arrangement with the HAMC. By this arrangement, Caines paid a recurring tax to the HAMC for the right to distribute cocaine in Fort McMurray, Alberta and for some measure of protection against competition by rival drug traffickers and against violence or other interference by the criminal element. As to the appellants involvement, it was the theory of the Crown, also 4 The trial judge s analysis of Marche s evidence and the findings of credibility are described at Reasons, JAR, supra note 2 at 114, para 315 to 156, para These findings are summarized at Reasons, JAR, supra note 2 at 230, para 932 to 231, para 944.

9 5 accepted by the trial judge, that from about the end of August 2005 until sometime in January of 2006, the appellants were the HAMC members responsible for facilitating and maintaining the protection and support arrangement between Caines and the HAMC. During the relevant timeframe, the appellant Alcantara was a prospect member of the HAMC, Edmonton chapter, while the appellant Knapczyk was a full-colors-wearing member of that chapter. Both men were found to have used their status with the HAMC to enforce and maintain the arrangement with Caines in furtherance of his cocaine distribution business The interception of the appellants communications with Jeff Caines revealed the nature and history of the protection agreement between Caines and the HAMC. The trial judge found that while the arrangement did not provide Caines with an exclusive right to sell cocaine in Fort McMurray or in any particular part of Fort McMurray, it did provide him with some level of protection from competition by rival traffickers and also protected members of the Caines group from theft, violence and other interference by other criminals. Both the fact of the protection arrangement and the appellants involvement as facilitators of the arrangement were discussed among Caines and the appellants in August and September of At that time, there was an internecine struggle within the HAMC about who had the right to facilitate this lucrative arrangement with Caines. Based on these discussions, the trial judge found that at some earlier point in time, the arrangement had been facilitated by a prospect member of the HAMC Alberta Nomads chapter, Lee Lepoidvin, but that subsequently the appellants Alcantara and Knapczyk had wrested control of the arrangement for the benefit of the HAMC Edmonton chapter In late August of 2005, Caines reported to the appellant Alcantara that Lee Lepoidvin had told Caines that the protection arrangement would be reverting to his group and he wanted assurances that Caines would no longer be dealing with Alcantara and his group. Lepoidvin s assertion prompted discussion among the appellants and Caines in reaction to this crisis. It became apparent that Caines was taking instruction from the appellant Alcantara as to the appropriate 6 The evidence supporting these conclusions is detailed and analyzed in the first 187 pages of the Reasons, JAR, supra note 2. The trial judge s conclusion regarding the role of the appellants is summarized at Reasons, JAR, supra note 2, at 224, para 902 to 226, para 911. These paragraphs are reproduced below at para 14 of this factum. 7 The trial judge s analysis of the discussions revealing the history and nature of the arrangement between the Caines group and the HAMC are mainly set out in the analytical sections of the Reasons, JAR, supra note 2, at 195, para 734 to 207, para 805.

10 6 manner of responding to the situation. At the same time, it was shown that Alcantara as a prospect member of the HAMC deferred to his sponsor and full-fledged member Knapczyk for advice and direction about how to address the problem. In turn, Knapczyk became involved in the negotiation and decision-making within the HAMC about who would control this lucrative arrangement While the dispute within the HAMC was being resolved, Caines continued to check with the appellant Alcantara to determine who he was to deal with in relation to the protection arrangement. In turn, Alcantara sought advice from Knapczyk as to the status of discussions within the HAMC. The trial judge found that near the end of August, 2005, Alcantara advised Caines that he would be working with their group, the HAMC Edmonton chapter rather than with Lepoidvin and the Nomads. In the telephone conversation in which this news was reported to him, Caines responded in a manner that revealed what he expected to receive from the arrangement with the HAMC that was being facilitated by the appellants. Caines immediately told the appellant Alcantara that he had a problem that he needed to have solved. He needed a rival trafficker, who he referred to as Webb, removed. Caines also wanted to confirm specific terms of the arrangement. The appellant made it clear that he did not wish to discuss those details over the telephone. The trial judge found that this call revealed the role of Alcantara s group, which was to deal with problems Caines had in relation to his cocaine trafficking business in Fort McMurray, problems such as Webb. In this particular instance, there was no evidence that Alcantara did anything in relation to this request for assistance. However, he did offer encouragement by assuring Caines that the problem was being addressed In convicting the appellants of conspiracy to traffic in cocaine, the trial judge explicitly accepted the Crown s theory that the involvement of the appellants centered upon a protection agreement designed to ensure the smooth operation of Caines cocaine distribution scheme. The trial judge found that both men not only agreed to this criminal design but took steps in furtherance of the agreement. These findings are captured in the trial judge s summary of her reasons convicting them of conspiracy. The relevant portion of the judgment reads as follows: [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 8 Ibid. 9 Supra note 7.

11 7 HAMC, were members of the Caines conspiracy to traffic in cocaine in Alberta from August 2005 until at least January 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 colors 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 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.

12 8 [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 the 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 The trial judge found that the evidence directly admissible against the appellant Alcantara (his own acts and declarations) was sufficient by itself to prove beyond a reasonable doubt that he was a member of the Caines drug trafficking conspiracy between August 2005 and January She found that his role was to provide protection for the group in their drug trafficking activities. 11 Moreover, the trial judge found that the appellant Alcantara not only agreed to provide protection services but actually took steps in furtherance of that agreement. 12 The trial judge summarized her findings that the appellant Alcantara took action to support the Caines trafficking scheme as follows: [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. [reference 10 Reasons, JAR, supra note 2 at 224, para 902 to 226, para Reasons, JAR, supra note 2 at 177, para 652 to 187, para Reasons, JAR, supra note 2 at 183, para 672 to 186, para 687.

13 9 to a drug dealer competing with the Caines group] 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 [references to the separate matter of a competing drug trafficking organization operating in Fort McMurray]. 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 [a reference to alleged acts of bullying by the disgruntled HMAC Nomad prospect LePoidvin] Several intercepted private communications were relied upon by the Crown to demonstrate that Alcantara actively pursued a price-fixing arrangement between Caines and members of a competing drug trafficking group operating in Fort McMurray. The trial judge made a specific finding of fact with respect to these actions carried out by the appellant Alcantara in furtherance of the cocaine trafficking scheme. In this connection, the trial judge described the appellant Alcantara s actions as follows: [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 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 In the case of the appellant Knapczyk, the trial judge also found that he had not only intended to put the common design into effect but had actually done so. The trial judge summarized the active involvement of the appellant Knapczyk as follows: [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 13 Reasons, JAR, supra note 2 at 186, para Reasons, JAR, supra note 2 at 214, para 851.

14 10 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 In the case of the appellant Knapczyk, the Crown emphasized evidence showing his involvement in attempting to resolve the theft of a quantity of cocaine from one of Caines s distributors. Caines was claiming that LePoidvin, the disgruntled HAMC Nomad prospect, had been responsible for the theft. This event occurred during a period of time when the appellant Alcantara was out of the country on his honeymoon. That circumstance caused the appellant Knapczyk to become more directly involved in dealing with Caines s request for protective services rather than providing advice and direction to the appellant Alcantara who was the usual front man in respect of the arrangement. The theft of cocaine took place during this time and there were several conversations between Caines and Knapczyk that revealed the nature of the problem and actions taken by Knapczyk attempting to resolve the issue. In this connection, the trial judge made the following key findings about the actions of the appellant Knapczyk: [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 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. 15 Reasons, JAR, supra note 2 at 226, para 909.

15 11 [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. 16 Reasons for Acquitting the Appellants of Trafficking 19. The Crown relied upon s. 21 of the Criminal Code to support its contention that the proven actions of the appellants undertaken in furtherance of the cocaine trafficking conspiracy required that they also be convicted as parties to the offence of trafficking. The trial judge rejected this theory of criminal liability 20. The trial judge provided the following reasons for acquitting the appellant 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 16 Reasons, JAR, supra note 2 at 211, para 830 to 212, para 837.

16 12 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, [These five men were Caines s main cocaine distributors in Fort McMurray.] Hoskins, Penton, Flight, [Hoskins and Flight were the principal drug and money couriers assisting Caines.] King, and Kamran Sattar. [King and Sattar were supplying Caines with cocaine for distribution to his group in Fort McMurray.] 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. 21. The trial judge provided the following additional explanation for acquitting the appellant 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 coconspirators. [949] The law on this point is set out in the decision of R v Dooley, 2009 ONCA 910 at paras , 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 connections 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

17 13 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. [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. 17 The Crown s Appeal to the Alberta Court of Appeal 22. The Crown appealed the acquittals urging that the trial judge s application of s. 21(1) of the Criminal Code was legally flawed in the following three crucial respects: a) The trial judge wrongly required proof that the acts done by the appellant had a causal role in the cocaine trafficking carried out by their co-conspirators; b) The trial judge considered only whether the acts done by the appellants aided the commission of the offences and failed to consider whether those acts encouraged (abetted) the commission of those offences; c) The trial judge wrongly required proof that the appellants actions aided or abetted specific instances of cocaine trafficking rather than considering whether their actions aided or abetted their co-conspirators cocaine distribution business more generally. 23. The Crown also urged in the alternative that the trial judge erred in law by failing to consider that the appellants were parties to the cocaine trafficking offence by virtue of s. 21(2) of the Criminal Code. The operation of that cocaine distribution business by Caines and his cohorts was the plainly foreseeable consequence of the common unlawful purpose manifested by the conspiracy to traffic. 24. The appellants (as respondents in the Court of Appeal) argued that party liability could attach to them only if they are proven to have aided or abetted specific acts of trafficking. They 17 Reasons, JAR, supra note 2 at 231, para 945 to 232, para 951.

18 14 also argued that criminal liability for any contribution to this criminal enterprise on their part should arise pursuant to s of the Criminal Code (participating in the activities of a criminal organization) rather than under s. 21 of the Criminal Code. The Unanimous Decision of the Alberta Court of Appeal 25. On 13 August 2015, the Court of Appeal released its decision allowing the Crown s appeal. In a unanimous judgment, the Court implicitly accepted the Crown s submission that causation need not be proven and that acts of either assistance or encouragement are sufficient to establish liability under s. 21(1) of the Criminal Code. 18 They concluded that upon correct application of the legal principles to the facts found by the trial judge, it is an inescapable conclusion that the [appellants] aided and abetted the offence of trafficking through distribution, based on the fact that they provided protection and solved problems in order to allow the business to operate, emphasizing that the business was cocaine trafficking. 19 They rejected the proposition that party liability requires proof of aiding specific acts of trafficking as involving an unnecessarily narrow and incorrect approach The Court of Appeal also rejected the appellants argument that their potential liability under s of the Criminal Code for participating in the activities of a criminal organization barred conviction as parties to this offence. The Court of Appeal cited this Court s decision in Kienapple 21 to support the proposition that there is no prohibition against liability arising under more than one provision of the Criminal Code In allowing the appeal and substituting a conviction, the appeal court did not address the merits of the alternative ground of appeal advanced by the Crown based upon s. 21(2) of the Criminal Code. Their judgment addresses liability solely in relation to the application of s. 21(1) of the Criminal Code. 18 Reasons for Judgment, Court of Appeal, 2015 ABCA 259, ( CA Reasons ), at 261, paras [JAR, Tab 9]. 19 CA Reasons, JAR, supra note 18 at 261, paras CA Reasons, JAR, supra note 18 at 261, para R v Kienapple, [1975] 1 SCR 729, , 1 NR 322, paras [not reproduced]. 22 CA Reasons, JAR, supra note 18 at 261, para 16.

19 15 PART II POSITION OF THE RESPONDENT ON THE QUESTIONS IN ISSUE Question raised by the appellant on which this as of right appeal arises. 28. The Crown respondent s position on the question raised by the appellant in this as of right appeal is as follows: A. Did the Court of Appeal correctly conclude that the trial judge erred in law by not convicting the appellants of trafficking for acts that assisted or encouraged the operation of Caines s cocaine distribution business despite a lack of evidence demonstrating that the appellants aided or abetted any specific instance of cocaine trafficking? It is the position of the respondent Crown that the Court of Appeal was correct because the facts found by the trial judge showed that the appellants aided or abetted the operation of a cocaine distribution business by Caines and others, the very criminal transaction charged by the count of trafficking in issue. Additional question raised by the respondent in support of the order convicting the appellants 29. If this Court finds for the appellants on the above issue, then this Court should consider the respondent Crown s submissions, in support of the order convicting the appellants, on the following further ground, advanced by the Crown in the court below but not considered by that court: B. Did the trial judge err in law in failing to convict the appellants on the basis of s. 21(2) of the Criminal Code? It is the position of the respondent that the appellants formed an intention in common with Caines and his cohorts to carry out several unlawful purposes and to assist each other therein, as follows: a) committing the crime of conspiracy, b) committing the crime of conspiracy in association with a criminal organization, c) possessing the proceeds of drug trafficking, and d) trafficking the proceeds of drug trafficking. The appellants well knew that the foreseeable consequence of each and every one of these common unlawful purposes was that Caines and his cohorts would commit the offence of trafficking cocaine. The trial judge found that Caines and his cohorts trafficked cocaine as anticipated. Therefore, the proper application of s. 21(2) of the Criminal Code requires that the

20 16 appellants also be convicted as parties to the cocaine trafficking carried out by those persons. PART III ARGUMENT A. The Court of Appeal was correct to convict the appellants of cocaine trafficking. 30. Accessorial liability in Canada is primarily governed by s. 21(1) of the Criminal Code which reads as follows: 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 (c) abets any person in committing it. 21. (1) Participent à une infraction : a) quiconque la commet réellement; b) quiconque accomplit ou omet d accomplir quelque chose en vue d aider quelqu un à la commettre; c) quiconque encourage quelqu un à la commettre. 31. The jurisprudence considering this statutory provision supports a broad basis of accessorial liability. Any act or omission that occurs before or during the commission of the crime, and which somehow knowingly and to some extent furthers, facilitates, promotes, assists or encourages the perpetrator in the commission of a particular crime renders a person guilty as a party to that offence The findings made by the trial judge in convicting the appellants of conspiracy to traffic cocaine clearly establish their liability as parties to the offence of cocaine trafficking. In this case, count 2 of the Indictment embodied a broad criminal transaction that encompassed many specific instances of cocaine trafficking by the Caines criminal organization. In short, this global allegation of trafficking is best described as the operation of a cocaine distribution business or enterprise. 23 R v Mariani 2007 ONCA 329 (CanLII), (2007), 220 CCC (3d) 74 (Ont CA), at paras [Book of Authorities of Her Majesty the Queen, ( BOA ) Tab 11]; R v Calhaem, [1985] QB 808 (CA), at [BOA Tab 5]; R v Bryce, [2004] 2 Cr App R 592 (CA), at paras [BOA Tab 4]; A.G. v Able, [1984] QB 795, at 809 [BOA Tab 1]; R v Clarkson, [1971] 3 All ER 344 (Ct Martial App Ct), [1971] 1 WLR 1402 at [BOA Tab 6]; Peter Gillies, Criminal Law, 4th ed (North Ryde, Austl.: LBC Information Services, 1997), at [BOA Tab 24]; Brent Fisse, Howard s Criminal Law, 5th ed. (North Ryde, Austl.: Law Book Company, 1990), at 326 [BOA Tab 23]; V. Gordon Rose, Parties to an Offence (Toronto: Carswell Company, 1982), at 25 [BOA Tab 25].

21 17 The trial judge found that the appellants entered into a protection arrangement intended to ensure the smooth operation of this cocaine distribution business. Crucial to their liability as parties to the offence of distributing cocaine, the trial judge also found that they took active steps in fulfillment of that agreement. Their having done so, a conviction for trafficking must follow as those actions knowingly either assisted, encouraged or promoted that ongoing enterprise. 33. For example, the appellant Alcantara was found to have taken steps to negotiate a pricefixing arrangement with rival drug traffickers operating in the same geographic area. It is axiomatic that any kind of commercial operation involved in selling goods for money would be advanced by efforts directed at ensuring that a competing business could not offer better quality or cheaper goods in the same commercial territory. At the very least, the fact that the appellant Alcantara undertook those efforts (backed by the reputation of the HAMC for taking care of business) was a source of tremendous encouragement to Caines and his cohorts in their continuation of the cocaine distribution operation. 34. Likewise, the finding that the appellant Knapczyk acted upon a reported theft of cocaine from the Caines group made him a party to the offence of trafficking. The theft of a quantity of cocaine by another criminal necessarily involved a disruption in the smooth operation of Caines illicit cocaine distribution enterprise. It is significant that Knapczyk s assistance was specifically requested by Caines, the head of the cocaine distribution group pursuant to an agreement designed to protect that very business. In these circumstances, any action undertaken to fulfill that agreement must as a matter of law be considered to have aided or at least encouraged the commission of the offence. The trial judge s finding of insufficient nexus involved legal error about causation. 35. The approach taken by the trial judge erroneously interprets s. 21(1) of the Criminal Code as including a causative requirement. It is significant that the trial judge ultimately acquitted the appellants of this offence because of a lack of proof that their action had actually assisted the commission of the offence. In this connection, the trial judge stated: [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