Court File and Parties

COURT FILE NO.: CR-23-70000447-0000 DATE: 20240530 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JASON GEORGOPOULOS Defendant/Applicant

Counsel: Kate Matthews, for the Crown/Respondent Michael Bury and Tyler Alviano, for the Defendant/Applicant

HEARD: February 20, 21, and 22, 2024

Molloy J.:

REASONS FOR DECISION

A. Introduction

[1] Jason Georgopoulos is charged with dangerous driving causing bodily harm. On May 12, 2021, while driving his new Lamborghini at a high rate of speed on Queen Street East in downtown Toronto, he tried unsuccessfully to pass a streetcar. He crashed into cars parked on the side of the street, totaled the Lamborghini, and caused serious bodily harm to his administrative assistant, who was sitting in the passenger seat of his car. Mr. Georgopoulos was arrested and charged on June 8, 2021.

[2] The case arrived in the Superior Court on June 19, 2023, after the completion of the preliminary inquiry in the Ontario Court of Justice. The trial was set for February 20, 2024. I was the assigned trial judge. Mr. Georgopoulos re-elected to be tried by a judge sitting without a jury. The defence brought two pretrial applications: (1) an application to stay the proceedings for delay pursuant to s. 11(b) of the Charter, relying on the principles established in R. v. Jordan; [1] and (2) in the alternative, an application for a stay of proceedings based on the allegation that the police had lost evidence that jeopardized the accused’s ability to properly defend the charges against him.

[3] I heard the Jordan motion at the outset of the trial, and dismissed it, indicating that written reasons would be provided at a later date. I directed that I would hear the lost evidence application at the end of the trial, at which point I would be better positioned to determine the impact of any lost evidence on the accused’s defence. [2]

[4] The trial then proceeded, at the conclusion of which I heard the lost evidence application and reserved my decision on both the trial proper and the application. There was one remaining factual issue outstanding, which was the date upon which the Lamborghini (which was damaged beyond repair) had been disposed of by the insurer. With the consent of both parties, I directed that this information could be obtained from the insurance company and confirmation from the insurance company emailed to me. I received that email on February 28, 2024. The process for vehicle salvage transfer of the Lamborghini began on June 23, 2022, at which point Mr. Georgopoulos would no longer have had access to it.

[5] The lost evidence application is dismissed for the reasons set out below.

[6] Also, for the reasons that follow, I find Mr. Georgopoulos guilty as charged on the charge of dangerous driving causing bodily harm.

B. Application for Stay of Proceedings Based on Delay

The Test

[7] This proceeding started in the provincial court, proceeded to a preliminary hearing, and then was scheduled for trial in this court. The Supreme Court of Canada in Jordan established a ceiling of 30 months for the completion of a trial that followed this path, beyond which any delay would be presumptively unreasonable under s. 11(b) of the Charter. Once the presumptive ceiling is exceeded, the onus is on the Crown to rebut the presumption of unreasonableness by showing defence delay or by demonstrating “exceptional circumstances” that are unforeseen or reasonably unavoidable and which could not have been reasonably remedied. [3]

[8] The first step in the analysis is to calculate the total delay from the date the accused is charged with an offence to the anticipated end of the trial. Defence-caused delay and any periods for which s. 11(b) rights have been waived are then subtracted from the total. Generally speaking, if the Crown is ready to proceed on a particular date and the court is available to hear the matter, any period of time for which the defence is unable to proceed is considered to be defence delay. Deliberate and calculated defence tactics aimed at causing delay, such as frivolous applications or requests, may also be characterized as defence delay, but that issue does not arise here. [4]

[9] If the Crown has established exceptional circumstances, any resulting delay is also subtracted from the total. Exceptional circumstances can include discrete events such as medical emergencies, unexpectedly missing or recanting witnesses, or other unexpected events beyond the control of the parties. Appellate and trial courts alike have consistently held that court closures as a result of the COVID-19 pandemic are appropriately characterized as an exceptional circumstance. [5] The complexity of the case may also be considered an exceptional circumstance, but, again, that does not arise in the case before me. [6]

[10] These steps were helpfully summarized by the Court of Appeal for Ontario in R. v. Coulter as follows:

[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

[35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

[37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

[38] Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

[39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

[40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [7]

Step One: Calculate Total Delay

[11] In determining the total delay, the first issue that arises is when the clock starts to run. The defence submits that the delay is calculated from the date of the arrest, which was June 8, 2021. If calculated from that date, the total delay is about 32 months (before any deductions). The Crown submits that the clock should only start to run on August 31, 2021, which is when the information was sworn. If calculated from that date, the total delay is 30 months and 5 days.

[12] Although Mr. Georgopoulos is now charged with dangerous driving causing bodily harm, at the time he was first arrested on June 8, 2021, he was told he was being charged with criminal negligence causing bodily harm. He was released on an undertaking with a condition that he not leave Ontario. He appeared for the first court date on July 27, 2021, by which time no information had been sworn. On July 29, 2021, police attended at Mr. Georgopoulos’ home and he signed a further undertaking on the same terms, promising to appear on September 21, 2021.

[13] An information was sworn on August 31, 2021, charging Mr. Georgopoulos with criminal negligence causing bodily harm. That information was before the court at the next appearance on September 21, 2021.

[14] The Crown relies on the Supreme Court of Canada’s decision in R. v. Kalanj [8] and the decision of the Court of Appeal for Ontario in R. v. Allison [9] in support of its position that the time starts to run for purposes of s. 11(b) only when the information is sworn. Defence counsel acknowledges these two authorities, but refers to “conflicting jurisprudence” to support his position that the period of delay should be calculated from the time of the accused’s arrest. In support of that position, he cites four Ontario Court of Justice (OCJ) decisions: R. v. Luoma; R. v. Gill; R. v. Fonseca; and R. v. Sawh. [10] He also relies on s. 505 of the Criminal Code, [11] which stipulates that where an accused is released on an undertaking to appear or given an appearance notice, the information relating to the offence is required to be laid before a justice “as soon as practicable” thereafter, and “in any event, before the time stated in the appearance notice or undertaking for their appearance in court.” Defence counsel further argues that a purposive interpretation of the s. 11(b) jurisprudence would not permit the Crown to shield a period of delay from scrutiny under the Charter, by its own inaction, particularly where that inaction is itself a breach of the Criminal Code.

[15] The short answer to this argument is that it was rejected on April 26, 2022 by the Court of Appeal for Ontario in Allison, which is binding on me. All four of the OCJ decisions cited by the defence, pre-date the decision in Allison. The Court of Appeal in Allison held that this issue had been conclusively determined by the Supreme Court of Canada in Kalanj and that this principle could have been readdressed by the Supreme Court in Jordan, but was not. Defence counsel seeks to distinguish the decision in Kalanj on the basis that in that case the accused was arrested and then simply released without any charges. The police then commenced an investigation, resulting in charges that were laid about eight months later. This, it is argued, is a different situation from one where there was an arrest and an undertaking to appear with conditions restricting the liberty of the accused, followed by a period of delay as a result of inadvertence by the Crown.

[16] I agree that these are different situations and that the fact situation in Kalanj makes it fully understandable that for purposes of calculating delay the time should not run until the date of the information being sworn. The defence argues that Kalanj should be interpreted as meaning that the time runs from when the information is sworn or should have been sworn. I recognize the merit in that interpretation. However, this argument was expressly considered in Allison, and definitively rejected. [12]

[17] Accordingly, the s. 11(b) total delay calculation starts from August 31, 2021. I note, however, that even if I had accepted the defence argument about the time starting to run from the date the information “ought to have been sworn,” I would have taken that to be prior to the first appearance, which would be July 26, 2021. The difference between the starting date urged by the defence (June 8, 2021) and August 31, 2021 is 85 days. However, the time from July 26 to August 31 is only 37 days. In the final analysis, however, nothing turns on this as the period of delay after appropriate adjustments is under 30 months in any event.

[18] I have conducted this analysis based on the projected end of the trial, which was March 4, 2024. The total delay between August 31, 2021 and March 4, 2024 is 917 days. However, this estimate was based on a jury trial. By the time this application was argued, the accused had re-elected to be tried by a judge sitting alone. The trial began on February 20 and concluded on February 22. If February 22 is taken as the end of the trial, the total delay from the date the information was sworn is just under 30 months (as 30 months after the end of August 2021 would run to the end of February 2024). However, I had done the analysis based on the projected trial conclusion, and rendered my decision (albeit without reasons) before I knew the actual trial ending date.

[19] Before turning to that analysis, I wish to make a point about the proper arithmetical manner of calculation. When calculating the periods of time to be deducted from the total delay, it is necessary to base that on the number of days involved. It is not appropriate to use months or parts of months because of the difference in the length of some months. However, when it comes to the final calculation as to the extent by which the total delay exceeds the 30-month limit established in Jordan, the calculation is different. At that point, the 30-month point should be considered, and a calculation made as to the number of days between that point and the end of the trial.

[20] Thus, in this case, the 30-month period would expire on February 29, 2024. If the trial conclusion is taken as March 4, 2024, and the start date is the date the information was sworn, that is a total delay of only four days. The Crown in this case calculated the total delay in days as being 917 days, which was converted to 30.147 months. If the time starts to run from the date of arrest (as argued by the defence), the 30 months would run to December 8, 2023, which is 88 days of delay. Calculated by using days, this would be 1001 days (or approximately 32.909 months). It would be a rare case where the difference in these mathematical approaches would make a difference, but using the number of days after the expiry of the 30-month period is more accurate.

Step Two: Defence Delay

[21] There are three periods of delay alleged by the Crown to be attributable to the defence:

• November 16, 2021 to December 13, 2021 – 28 days
• January 18, 2022 to February 28, 2022 – 42 days
• July 4, 2023 to July 18, 2023 – 15 days

[22] The defence concedes that the 42 days commencing on January 18, 2022 are properly attributable to defence delay. I agree. Given the starting date I have applied for the s. 11(b) analysis, this delay alone is a sufficient basis to dismiss the application.

[23] I also find that the 28-day delay from November 16 to December 31, 2021 is properly characterized as defence delay. On the September 21, 2021 appearance, the Crown stated that they were “pushing through disclosure” and that once that was done, a Crown pre-trial should be arranged. On the October 5, 2021 appearance, disclosure had been made but the defence sought some time to review it. It is not suggested this was defence delay. However, when the matter returned on November 16, 2021, defence counsel sought a further adjournment to January 11, 2022 in order to continue his review of the disclosure. The Crown objected that this was too long and that a Crown pre-trial needed to be scheduled, as the Crown had maintained on the record in both the September and October appearances. In response to that submission, the matter was made returnable on December 13, 2021, with the result that the Crown pre-trial was able to proceed on January 7, 2022. In my view, this additional 28-day delay to review disclosure is defence delay. The disclosure in this case was not sufficiently complex or voluminous to require this length of time to review it.

[24] I do not agree with the Crown submission that the third period of 15 days is properly defence delay. On June 27, 2023, the Crown offered a range of dates for a judicial pretrial: July 4, 7, 18, 19, 20, 21 and the week of August 21, 2023. Defence counsel chose a time on July 19. The Crown seeks to characterize the time between the first date available and the date selected by the defence as defence delay. I do not agree. The dates were offered on June 27. The first date offered was only days away. The defence selected a date somewhere in the middle, only about two weeks later. Some leeway to counsel has to be allowed when working in tight timeframes such as these. I would not count this period of time as defence delay.

Step Three: Exceptional Circumstances

[25] The Crown seeks a further deduction of 60 days to take into account the exceptional circumstances caused by the COVID-19 pandemic. The bulk of the delay in this case occurred in the Ontario Court of Justice. The accused was committed for trial on June 22, 2023 and the matter was transferred to this court. A judicial pretrial was held in this court on July 19, 2023 and on the first appearance date, a two-week jury trial was scheduled to commence February 20, 2024 (only seven months away). That is well below the amount of time usually expected to get a case to trial before a jury in this court. The issue then is the impact of COVID at the OCJ level.

[26] The Court of Appeal for Ontario has recognized that trial judges can take judicial notice of the impact of COVID on delays in the courts where they are sitting. In Agpoon, the court held that the Supreme Court’s direction in Jordan for trial judges “to employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances” is applicable (with necessary modifications) to the assessment of pandemic-related delay for purposes of the s. 11(b) analysis. [13] The Court of Appeal for Ontario also noted in R. v. Coates that it was important to defer to “trial judges’ expertise on local circumstances and practices” in considering trial delays arising from COVID. [14] In R. v. H, my colleague Roberts J. considered the deference that should be given to decisions of OCJ judges sitting in Scarborough in determining the deduction to be made for COVID related delays in that jurisdiction. She held:

Counsel for L.H. cautions me against placing weight on the anecdotal experiences of trial judges, pointing in particular to statistics that show the “average number of days to disposition” for homicides to be essentially unchanged by the pandemic. I disagree. First, Jordan requires trial judges to rely on their experience in the jurisdiction when assessing delay. Agpoon reiterates this, explicitly noting this direction should be applied to the effect of the pandemic. I am not in a position to do this myself in the context of the Scarborough court house, but I can pay careful attention to the experience of thoughtful judges in the jurisdiction, especially when it relates to a very similar time frame as the case before me. Second, I do not know what to make of the statistics provided by the defence. It is not clear whether disposition refers to final judicial determination, or also includes committal for trial in Superior Court, and remands to Superior Court for guilty pleas. Even if it refers to final determinations only, it includes very dissimilar cases, such as early guilty [pleas]. Further, these statistics also show that the “trial rate” (defined as “the number of cases disposed at trial with a trial as a percent of all cases disposed either before and at trial”) fell markedly in the pandemic: it was 76.9 % in 2019, 60.0 % in 2020, 56.0% in 2021, and 73.3 % in 2022.

There is no question that the pandemic cannot become a blanket excuse, shielding unacceptable complacency about delay, but that is not what happened here. The proactive steps that the Crown has taken to try and address and manage its cases, noted above, is the antithesis of complacency. I am satisfied that this case took a long time getting through Scarborough Provincial Court in significant part because at the relevant time that Court was struggling with its backlog. As the Scarborough LAJ noted about the very time period at issue in this case:

[A]nyone familiar with and involved in the operation of the justice system, and in particular the day-to-day functioning of the provincial trial courts, knows that the ripple effects of the pandemic very much remain. The cancellation and rescheduling of thousands of trials during the peak of the pandemic and its impact on staffing and resources continues to place an unprecedented strain on the ability of provincial trial courts in particular to “keep up with” the scheduling of cases already in the system and the new ones that continue to enter it.

In sum, not only do I believe it is open to me to accept the experience of Scarborough judges about the effect of the pandemic back-log on date-setting in their court, but I believe I must do so in order to follow the direction of Agpoon about how to properly apply the Jordan framework when considering pandemic delay. I find the 22 day period of time between when counsel were ready to schedule preliminary inquiry dates, and the scheduling meeting, to be pandemic-related delay. It reflects pandemic backlog, but it is different from the backlog in getting trial time, thus I treat is separately. It is not double-counting. I expect it to disappear as the courts work though the backlog, and improve on scheduling in the era of zoom. I also find that the pandemic backlog added at least 60 days to the systemic delay in scheduling a date for the preliminary inquiry. This is likely an underestimate, but I am mindful that the burden is on the Crown, and this is the number the LAJ notes in Balasubramaniam, which tracks the time period of this case fairly closely. Again, I expect this to disappear as the Scarborough court works through the backlog. [15]

[Emphasis added.]

[27] I am in full agreement with Roberts J. on this point. Before reaching the superior court, the case now before me was in the OCJ at College Park. Mulligan J. was one of the experienced trial judges at OCJ College Park during the relevant time. In R. v. Gutnik, [16] Mulligan J. dealt with a Jordan application based on delays at College Park following July 14, 2021 after an information was sworn against the accused for sexual assault. She held that 60 days of the overall delay were attributable to the effects of COVID:

Recognizing that, in this case, I am not able to put an exact number to the days of delay attributable to the pandemic but having already acknowledged the cascading effect it has had on delays in the court in general, I find that some amount of time should be deducted from net delay to account for what has been widely recognized as an exceptional event. Though the Respondent argued that 90 days is appropriate I find, using a contextual approach, that 60 days is more accurate. In this jurisdiction, for out-of-custody trial matters, time to trial, defined as the period between the date the trial date is set and the first day of trial, should be, and prior to the pandemic was, in the range of about 10 months. That’s not aspirational. But, in my experience, it is the appropriate range given the number of criminal charges that flowed into College Park yearly and the processes required before a hearing date could be set. In Mr. Gutnik’s case, the time-to-trial was almost exactly 12 months. As such, I attribute the extra 60 days, in this case, to delay caused by the pandemic’s ripple effects at College Park courthouse. It is worth noting in this regard that the Applicant’s trial was never adjourned or vacated due to any court closures or Public Health pronouncements. [17]

[28] This is ample authority for recognizing the impact of COVID on the delays in this case at the OCJ level. Accordingly, I agree with the Crown submission that it is appropriate to deduct 60 days for the exceptional circumstances caused by the pandemic.

Conclusion

[29] From the total delay in this case, I would deduct 42 days defence delay (conceded by the defence); 28 days defence delay (adjournment requested by defence to further review disclosure); and 60 days (for the exceptional circumstances arising from COVID). That is a total of 130 days. When these deductions are made, with the total delay calculated from the date the information was sworn, the delay is well under 30 months. Indeed, any one of these factors would bring the delay under 30 months.

[30] Even if the calculation goes back to the date of arrest on June 8, 2021, that merely adds a further 84 days of delay, and after the deductions I have stated the case would still be under 30 months.

[31] There is no suggestion by the defence that any delay under 30 months would nevertheless be unreasonable in all the circumstances, and I specifically find this is not the case.

[32] Accordingly, the application is dismissed.

B. The Dangerous Driving Charge

The Evidence at Trial

[33] Mr. Georgopoulos is charged with dangerous driving causing bodily harm. At approximately 9:00 p.m. on May 12, 2021, he was taking his administrative assistant for a spin along Queen Street East in Toronto in his new Lamborghini. It was a beautiful spring evening, so he put the top down. Queen Street is a busy arterial road in Toronto. There was normal traffic on the street that evening with pedestrians out and about on the sidewalks and many cars (both moving and parked). The speed limit was 40 kph. Just before the crash, a T.T.C. streetcar was ahead of the Lamborghini, travelling at 30 kph. Mr. Georgopoulos decided to pass the streetcar in the curbside lane to the right of the streetcar. He put the accelerator right to the floor, reaching a speed of 112 kph. However, he was not successful in getting past the streetcar before his way was blocked by two cars parked in curbside parking spots. He crashed into a parked Jeep Wrangler, then lost control, hitting the streetcar and a parked Mercedes before finally coming to a rest. He was not seriously injured. However, his administrative assistant suffered life threatening injuries, including a traumatic brain injury, although she did survive. None of these facts are contradicted by any evidence.

[34] The mechanics of the collision and the speed of the Lamborghini and streetcar are derived from the report and evidence of D.C. Harjeet Bhathal, who testified as an expert in collision reconstruction. His evidence was based on data retrieved from the car, physical evidence at the scene, and his review of video from surveillance cameras. His expertise was not challenged, nor was there any real challenge to the substance of his evidence. The bulk of the cross-examination of the prosecution witnesses centered on the failure of the police to obtain data from the Infotainment system of the Lamborghini, which is the subject of the stay application based on lost evidence.

[35] When the airbags of the Lamborghini deployed, the Airbag Control Module automatically recorded data from the car for a period of five seconds before the crash. At the five-second mark, the accelerator was 100% depressed and the speed of the Lamborghini was 52 kph. The Lamborghini reached its peak speed of 112 kph one second before the crash. At that point, the accelerator was not depressed at all. At the point of collision with the Jeep Wrangler one second later, the Lamborghini was travelling at 104 kph. The brakes were never applied. A mechanic examined the Lamborghini and found no defects that could have contributed to the collision.

[36] There were a number of eyewitnesses to the crash who gave statements to the police. An Agreed Statement of Facts was filed summarizing the evidence of three of those witnesses. Essentially, they corroborate the expert reconstruction evidence that the Lamborghini was driving at a high rate of speed in an attempt to pass the streetcar and slammed into the parked cars without ever trying to stop.

[37] One of those witnesses, Mark Bowman, was driving behind the Lamborghini for about six blocks prior to the collision. Over the course of those six blocks he observed the Lamborghini slow down to allow a distance of approximately 100 feet to develop between the Lamborghini and the car in front of it. The Lamborghini would then accelerate quickly up to the vehicle ahead, taking about one second to reach the car in front. He said he saw this happen two or three times. He estimated the Lamborghini’s top speed in these bursts as being between 60-65 kph. As the Lamborghini accelerated, he saw the female passenger throwing her arms up in the air in a manner Mr. Bowman interpreted as enjoying the acceleration.

[38] Mr. Bowman saw the streetcar ahead of them and described it as slowing down traffic. He observed the Lamborghini pull out to pass it in the curb lane and saw it fully accelerate to a speed he believed to be over 80 kph (in fact, it was 112 kph). At the same time, Mr. Bowman saw the Jeep Wrangler parked at the curb and remarked to his son who was in the car with him that he did not think the Lamborghini was going to make it.

[39] A witness who was standing on the sidewalk (Charles Cowling) heard the Lamborghini approaching and described the driver as “gunning it” as it was trying to beat the streetcar. He described glass and metal flying through the air when the impact occurred. This is confirmed by photographs and video of the scene. People can be seen running to get away from debris and both parked cars were pushed up onto the sidewalk.

[40] None of this evidence is disputed.

Testimony of the Accused

[41] Mr. Georgopoulos testified in his own defence. At the time of this incident, he was 42 years old, married, and the father of three children. He is a mortgage broker and has his own business on Queen Street East, with about 15 people working in that office, some of whom are independent mortgage brokers, but working under him. In January 2021, he and a friend decided to purchase a Lamborghini. The arrangement was that his friend (who lived in California) would have the car in the winter months and Mr. Georgopoulos would have it in the summer. He said they both made cash downpayments and took out a loan for $400,000 to pay the rest. The payments on the loan were $8000 a month.

[42] Mr. Georgopoulos’ friend had the Lamborghini during the winter of 2021 and Mr. Georgopoulos got it for the first time on May 8 or 9, 2021. He crashed it on May 12 and said that he had only driven it four or five times prior to that, and only for short distances.

[43] He remembered that May 12, 2021 was a sunny day and that he had the top down when he headed out for his drive with his administrative assistant. He said the car engine was noisy and drew attention, which he said was “kind of the point” and “goes with the territory.” He said he was revving the car and that he and his assistant were happy that people were looking at them. He also said that the noise from the car’s engine makes it appear that the car is going faster than it actually is. He believed he did not exceed the speed limit prior to deciding to pass the streetcar.

[44] Mr. Georgopoulos denied that his assistant was throwing her arms into the air and enjoying the acceleration. He claimed to have no memory of the pattern of driving described by Mark Bowman who was in the car right behind him for six blocks. He explained that he had a concussion following the accident and had a spotty memory as a result, although things were slowly starting to come back to him. He acknowledged, however, that this description was part of an Agreed Statement of Facts filed at the trial.

[45] Notwithstanding this allegedly “spotty memory”, Mr. Georgopoulos purported to have a crystal-clear memory of the seconds prior to the crash. He said he decided to pass the streetcar and that when he went to pass, the lane in front of him was clear. He then said that he dropped a gear by mistake, which caused the car to accelerate far more quickly than he had anticipated. He testified that he “didn’t realize how powerful the car was” and was not expecting that reaction. He explained that it took him a second or two to react because he was in a panic and froze. He claimed to have a distinct memory of not hitting the brakes because of fear that the car would spin out and hit pedestrians. He also claimed to have a clear memory of thinking that the streetcar would slow down or stop to let him pass and that he did not expect it to accelerate. He said that streetcars on Queen Street often stop to let cars pass.

[46] On cross-examination he acknowledged being familiar with Queen Street because it is near his work and home. He was aware there could be parking in the curb lane, but also maintained that he did not know that cars could be parked in the curb lane where this incident occurred. He also stated on cross-examination that he had decided that the safest thing to do was to try to complete the pass. When asked why he had such a clear memory of the seconds before the collision (as opposed to no memory of showing off with bursts of speed earlier), he said it was because he has had a long time to think about it. At another point he said that his memory has been coming back to him over time.

Legal Principles: Dangerous Driving

[47] The Criminal Code defines dangerous driving as operating a vehicle “in a manner that, having regard to all the circumstances, is dangerous to the public.” [18] The Supreme Court of Canada has defined what constitutes the actus reus and mens rea for this offence in R. v. Beatty, and more recently in R. v. Roy. [19] The Court of Appeal for Ontario has also outlined these constituent elements in cases such as R. v. Ibrahim, R. v. Romano, and most recently in R. v. Qureshi. [20]

[48] In the opening paragraph of Roy, Cromwell J., writing for a unanimous Court, emphasized the importance of not criminalizing behaviour that is merely careless, stating:

Dangerous driving causing death is a serious criminal offence punishable by up to 14 years in prison. Like all criminal offences, it consists of two components: prohibited conduct — operating a motor vehicle in a dangerous manner resulting in death — and a required degree of fault — a marked departure from the standard of care that a reasonable person would observe in all the circumstances. The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction. While a mere departure from the standard of care justifies imposing civil liability, only a marked departure justifies the fault requirement for this serious criminal offence. [21]

[49] In Beatty, the Supreme Court of Canada held that the actus reus of this offence is met by a manner of driving which, viewed objectively, is “dangerous to the public, having regard to all the circumstances, including the nature, condition, and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be in that place.” [22] It is the manner of the driving that must be considered, and not its consequences, no matter how tragic. [23]

[50] The mens rea of the offence requires that the accused’s objectively dangerous driving amounts to a marked departure from the standard of care that a reasonable person would observe in the same circumstances as the accused. This includes a consideration of the whole of the evidence including the accused’s state of mind. If an explanation is offered by the accused, then in order to convict the “trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.” [24]

Analysis

[51] Mr. Georgopoulos’ testimony at trial is neither credible nor reliable. I accept the evidence of Mr. Bowman with respect to the manner of driving immediately prior to and at the time of the accident. Although Mr. Georgopoulos now purports to have no memory of that, he agreed that those facts could be filed as an Agreed Statement of Facts at trial. I take those facts as proven. Mr. Georgopoulos was joy riding and showing off, both for the benefit of his young assistant and to impress people along the way who would be envious of his fancy car. He was treating one of the busiest and most congested streets in the city like a roller coaster to give his young passenger a thrill.

[52] I reject the testimony of Mr. Georgopoulos that he thought the streetcar would stop or slow down to let him pass, rather than accelerate. First of all, the streetcar did not accelerate. Second, it is a ludicrous proposition to suggest that streetcars in Toronto routinely stop to let cars pass them. Third, for Mr. Georgopoulos to factor in the possibility that the streetcar would (or could) stop in time to let him pass without hitting someone first, would be the height of reckless behaviour and would be no answer to a charge of dangerous driving in any event.

[53] I also reject the explanation given by Mr. Georgopoulos that he somehow accidentally dropped a gear that caused the acceleration. He pulled out and put the accelerator to the floor in an attempt to speed past the streetcar before hitting the parked cars. Even at 112 kph he could not accomplish that feat. It is no excuse to say he did not expect to go that fast. He still would have hit the parked cars if he had driven at a slower speed. He also gave contradictory explanations for his strategy. On the one hand, he said he could not slow down because he would not be able to accomplish the pass. On the other hand, he said he did not apply the brake because he was afraid he would spin out and possibly injure pedestrians on the sidewalk. In my view, these are after-the-fact justifications, designed to excuse his conduct, and not actual memories of his thought process at the time. He himself admits that these memories are slowly coming back to him over time. They are not reliable.

[54] Mr. Georgopoulos was showing off with a powerful car. He expected he could accelerate fast enough to get around the streetcar before hitting the parked cars. I do not believe his evidence that he did not see the parked cars. They were there to be seen as soon as he pulled out to pass. Further, he could have no idea at that point what was in front of the streetcar, even if he got past the streetcar before he reached the parked cars. There could easily have been slow-moving traffic immediately in front of the streetcar. To be successful in this attempt, he had to pass the streetcar before he got to the parked cars and have a clear path in front of the streetcar which he could pull into before he got to the parked cars. Mr. Georgopoulos took a chance that he could get past the streetcar and move into the left lane before he got to the parked cars. He was wrong. He did not have any training or experience driving this kind of car, but he knew that to be the case, and he took the risk anyway. This was not a momentary lapse or error in judgment. It was a manner of driving consistent with the nature and purpose of his driving immediately before this attempted manoeuvre, just more extreme.

[55] In discussing the issue of mens rea, the Supreme Court in Beatty provided an example that very closely fits the manner of driving in the case now before me. Charron J. held:

In determining the question of mens rea, the court should consider the totality of the evidence, including evidence, if any, about the accused’s actual state of mind. As discussed at length above, the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test. This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant. For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met. One way of looking at it is to say that the subjective mens rea of intentionally creating a danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a “marked departure” from the standard expected of a reasonably prudent driver. Doherty J.A. similarly equates such deliberate action with a “marked and substantial” departure from the norm in the context of a criminal negligence charge in R. v. Willock (2006), 210 C.C.C. (3d) 60 (Ont. C.A.), where he states, at para. 32:

I think the appellant’s conduct during the two or three seconds in issue could only reasonably be said to constitute a marked and substantial departure from the conduct expected of a reasonable driver if the appellant deliberately jerked the steering wheel to cause the vehicle to swerve, presumably to either show off or frighten his young passengers. If that finding was reasonably open on the evidence, then the appellant could properly have been convicted of criminal negligence, as he was unable to regain control of the vehicle before it crossed the median and collided with the westbound vehicle. As indicated, I read the trial judge as making that finding. With respect, I do not think that finding was reasonably available on the totality of the evidence. [25]

[Emphasis added.]

[56] I do not believe the testimony of Mr. Georgopoulos about the manner of his driving or his thought processes, nor do I have a reasonable doubt about his guilt based on his evidence.

[57] It is clear on the whole of the evidence that the manner of driving was a grave threat to the safety of pedestrians and other vehicular traffic. The area is populated with restaurants, shops and apartments. There were people on the sidewalks and cars all around. This was a normal state of affairs for Queen Street and Mr. Georgopoulos knew it. He both lived and worked in the area. Any reasonable person would have considered this driving to be dangerous. Further, this was not just a slight departure from how a reasonably prudent driver would behave in these circumstances. It was a marked departure from what any reasonable person would do. No reasonably prudent driver would drive 112 kph on Queen Street, or anything close to that, in these circumstances. Further, no reasonably prudent driver would undertake to pass a streetcar in these circumstances at anything close to that speed. It was reckless conduct in the extreme. It easily surpasses the test for what constitutes dangerous driving.

[58] The manner of driving in this case was a danger to the public and a marked departure from what a reasonably prudent driver would have done in the same circumstances. It constitutes dangerous driving. Mr. Georgopoulos’ passenger was seriously injured. He is therefore guilty of the offence of dangerous driving causing bodily harm, as charged.

C. Stay of Proceedings Based on Lost Evidence

The Legal Test

[59] Adopting Roscoe. J.A.’s distillation of the applicable legal principles in R. v. F.C.B., the Court of Appeal for Ontario in Bero reproduced the helpful summary in considering a stay of proceedings for lost evidence as follows:

(1) The Crown has an obligation to disclose all relevant information in its possession.

(2) The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence.

(3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.

(4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.

(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.

(6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 Charter rights.

(7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation.

(8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O’Connor.

(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.

(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence. [26]

[60] The more relevant the evidence, the greater the care that must be taken to preserve it. The burden is on the Crown to provide an explanation for the failure to preserve relevant evidence. Perfection is not required. Where the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost due to “unacceptable negligence,” there will have been no breach of the disclosure duty and no breach of s. 7 of the Charter. [27] However, if the loss of the evidence is so prejudicial to the defence that it interferes with his right to make full answer and defence, a stay of proceedings may nevertheless be appropriate. [28]

[61] Where a stay is not available for breach of s. 7 of the Charter, another potential remedy would be a stay for abuse of process. Such a remedy can arise in two circumstances: (1) where the prosecution is conducted in a manner that contravenes the community’s basic sense of fair play and decency and compromises the accused’s right to a fair trial; and (2) where the prosecutorial misconduct undermines the integrity of the judicial system. [29] The police carelessness in this case does not come close to what is required to establish abuse of process.

[62] In either case, whether based on abuse of process or unacceptable negligence in failing to preserve evidence constituting a breach of the duty of disclosure, the jurisprudence is clear that a stay will only be granted in the “rarest” or “clearest” of cases. [30]

The Evidence Was Not Lost

[63] The collision occurred on May 12, 2021. The police obtained a search warrant to seize the EDR and Infotainment unit. They extracted the EDR and were able to obtain the data it recorded. However, the experts within the police force were unsuccessful in their attempts to download any data from the Infotainment unit. On June 9, 2021, defence counsel put the Crown Attorney on notice that the Lamborghini should be preserved by the Crown so that the defence could have its own expert examine it.

[64] On July 2, 2021, the police obtained an extension of the search warrant and an Assistance Order to enlist the aid of an employee at Grand Touring Automobiles (a Lamborghini dealership) to access the data from the Infotainment unit. On July 12, 2021, the car was towed to Grand Touring Automobiles for that purpose, but that attempt was also unsuccessful. On July 15, 2021, D.C. Gill sent an email to defence counsel advising that they no longer required the vehicle and it was available to them to pick up and conduct their own examination. In that same email, D.C. Gill attached a Canada Evidence Act [31] notice with respect to information they intended to rely on in court including “data download from the vehicle’s EDR and Infotainment Unit.” That notice was incorrect because no data had been obtained from the Infotainment unit.

[65] On July 15, 2021, defence counsel advised D.C. Gill by email that they would be doing their own examination of the vehicle, but would wait until they had the police examination report before doing so.

[66] On July 19, 2021, the accused notified his insurance company and they picked up the Lamborghini. At all times, while the police had the Lamborghini, the Infotainment unit was in the vehicle, and it was still there when it was turned over to the accused. At some point, the insurance company also took the Lamborghini to Grand Touring Automobiles, but then returned it to their own lot. The Lamborghini was in the possession of the insurer until June 23, 2022, but the defence took no steps to have it examined by their own expert at any time during that 11-month period.

[67] The police expert report and other Crown disclosure was delivered in the fall of 2021. There was no evidence as to precisely when that happened but it appears to have been approximately by October 5, 2021. There is no reference in the report to any data from the Infotainment system. On December 17, 2021, defence counsel wrote to the Crown and requested that the vehicle continue to be preserved so that their expert could do an examination. In that same letter, defence counsel referred to having the EDR download, but not the Infotainment report.

[68] A judicial pretrial was conducted in the Ontario Court of Justice on April 7, 2022, at which point there was some discussion of there being missing disclosure, which is referred to in the pretrial report as the “black box”. It is unclear whether this refers to the EDR or the Infotainment unit. I assume it was the Infotainment unit, because the defence had the report containing the EDR data. It was agreed by both counsel that the matter could proceed to the preliminary hearing without this missing information. In June 2023, the Crown provided a will-say statement from D.C. Gill with respect to the inability of the police to obtain data from the Infotainment unit.

[69] Clearly, the Canada Evidence Act notice implies that the police had the data from the Infotainment unit. This was inaccurate. However, by at least December 2021, the defence knew this data was missing from the disclosure and took no steps to have their own expert examine the car. The car was not released to the salvage company until June 23, 2022, and the defence had access to it for that period of time.

[70] In this case, the police did not lose the evidence, nor did they fail to preserve it. Rather, the Infotainment unit remained intact in the Lamborghini, to which the accused had access for almost a full year before the vehicle was destroyed. For part of that time, the defence knew the Infotainment data was missing from the disclosure, and yet did nothing to obtain it themselves. However, the police made a mistake on the notice issued under the Canada Evidence Act, which led defence counsel to believe that the Crown had retrieved the data from the Infotainment system. Because defence counsel relied on this information, they did not do their own testing, and ultimately the evidence was lost. The defence did request the missing disclosure and the Crown failed to provide an explanation as to what had happened until after the vehicle had been destroyed. Whether this amounts to a breach of the disclosure obligations of the Crown is debatable. However, I am prepared to treat it as such for purposes of this analysis.

[71] That, however, is not determinative of this lost evidence application. Data that has never existed cannot be said to be lost. On the evidence before me, I find that there was no recording of this event available from the Infotainment unit. In support of this application, the defence filed the report of an expert, Harshvir Singh of Advantage Forensics Inc., with respect to what information would have been available from the Lamborghini’s information system. Mr. Singh was careful in his opinion to indicate where his conclusion was based on information provided to him. In the absence of that information being established as true at trial, there would be no basis to find that there was any recording of this event on the Infotainment system.

[72] According to Mr. Singh’s report, the Infotainment system in this model of Lamborghini would not necessarily have been equipped with the telemetry system required to record this kind of data. However, it was an optional feature that could be purchased. Mr. Singh was advised by defence counsel that this vehicle had the option and he proceeded on the basis of that information. The only evidence at trial indicating that the Infotainment system had the additional telemetry option came from Mr. Georgopoulos himself. I did not find him to be a truthful or reliable witness. There would be reliable, objective information available as to whether this additional option had been purchased, but none was provided. This is the first hurdle, and it was not cleared by the defence. However, even assuming that the car had this feature, I would still find that there was no recording of this event in the Infotainment system.

[73] The use and purpose of this optional feature should first be noted. It is designed for a driver to record his and the vehicle’s performance on a pre-set driving loop and then have the video and other data available afterwards to review. Typically, this would be on a racetrack of some sort. For the information to be generated, three things would need to be done: (1) a route must be previously mapped out and recorded in the system; (2) the route must be looped with approximately the same start and finish lines and; (3) to generate a recording for a particular trip, the driver must select the route he is going to drive and initiate a “Driving Session” with audio and video recording before setting out. Unless all these steps are taken, nothing will be recorded. If the entire looped route is completed, the system automatically saves the data recorded, unless the driver rejects the data-save confirmation. If the route is not completed, the driver must manually end the Driving Session prior to turning off the engine, failing which no data will be saved.

[74] Mr. Georgopoulos testified that he mapped out the route he was going to follow and recorded it the day prior to this collision, or perhaps two days before. He said the route he chose was from his office on Queen Street East to Woodbine. He said he chose that route because that is where he always drove. When it was pointed out to him that the route needed to be a loop, he said he did a U-turn on Queen Street and came back along Queen to his office. I find that evidence to be unworthy of belief. It makes no sense whatsoever to record the performance of a high-powered car travelling a straight line on a busy city street which has a speed limit of 40 kph, then do a U-turn and return along that same busy street. I do not believe he did that. But even if he did, that only means that the data would, in theory, have been recorded; it would not have been saved. Mr. Georgopoulos did not complete the loop before crashing into the parked cars. Therefore, he had to manually end the Driving Session before turning off his car. In his report, Mr. Singh predicated his opinion on information received from the accused’s lawyer that Mr. Georgopoulos manually ended the Driving Session after the collision and subsequently turned off the engine. However, Mr. Georgopoulos gave no such evidence at trial. Even if he had, I would not find it to be credible. His administrative assistant was so badly injured that portions of her brain matter were exposed. The car itself was a mangled wreck. It is unimaginable that, at that moment in time, Mr. Georgopoulos would have taken the time and care to terminate the Driving Session, thereby triggering the saving function, and only after doing that turn off the car. The reference in the expert report to him doing that is hearsay and not admissible for its truth. In the absence of this step, there was no data saved on the Infotainment system.

[75] I reject the evidence of Mr. Georgopoulos that he undertook any of these steps. However, in the absence of any evidence about the final step, there would be no data about this event on the Infotainment system. Perhaps this is why the police and also the technician at the dealership were unable to download any data. There never was any data saved on this system. The alleged lost evidence never existed.

The Infotainment Data Would Not Have Changed the Result

[76] In the alternative, even if the Infotainment data existed and was retrievable, it would not have changed the result in this case. Counsel for Mr. Georgopoulos submitted that the Infotainment data would have included: “GPS tracking; real-time data of the vehicle’s speed, rate of acceleration, turning movements, and force of braking; and video data from two in-vehicle cameras recording the immediate surroundings.” The GPS data was not necessary and the location of the vehicle is well-known. There is already reliable data from the EDR in the car showing the vehicle’s rate of speed and acceleration. The turning movements are not relevant. There was no braking, as shown by both the EDR data and Mr. Georgopoulos’ own evidence. In-car camera videos would also have added nothing. There was adequate video from elsewhere to establish the amount of traffic and pedestrians on the sidewalk. The video from the streetcar was also useful in calculating its speed. Defence counsel pointed out in argument that the expressions on the faces of the occupants of the Lamborghini would also have been shown. Based on the location of the cameras, I doubt that would be the case, but I am prepared to accept the suggestion for purposes of argument. In my view, footage from the in-car cameras would add nothing. I am sure the expressions on the faces of the two people in the car within seconds of the crash would show abject terror. Prior to that, there is eyewitness testimony about the thrill-seeking behaviour, which was an Agreed Statement of Fact at trial. Mr. Georgopoulos himself admitted the whole point of the exercise was to show off his car and have people watch them.

[77] I cannot see any possibility that the addition of data from the Infotainment system would have had any impact on the outcome of this trial.

Stay Not Warranted

[78] There is no basis for a stay in this case. Based on the evidence before me, I find that there was no recorded data relating to this crash in the Infotainment system and therefore no evidence was lost.

[79] Alternatively, if such data existed, I accept that there was some Crown and police negligence that contributed to the loss of that information. The reference to data from the Infotainment unit in the Canada Evidence Act notice was an oversight – a mere administrative error. It was compounded by the failure to correct it and the failure to provide an explanation, which if it had been given in a timely way, might have caused the defence to conduct their own analysis. However, to the extent there was negligence, it was merely inadvertence and I do not find it rises to the level of unacceptable negligence to merit a stay. That is particularly the case given that the data, even if it did exist, would not have changed the result in this case. The right of the accused to make full answer and defence was impaired so minimally, if it was impaired at all, that a stay of proceedings is not an appropriate remedy. There was no deliberate or egregious police or Crown misconduct. This is not one of those “rarest” or “clearest” of cases for which a stay of proceedings would be appropriate.

D. Conclusion

[80] In the result: (1) the application for a stay based on delay pursuant to s. 11(b) of the Charter is dismissed; (2) the application for a stay based on lost evidence is dismissed; and (3) I find Mr. Georgopoulos guilty of dangerous driving causing bodily harm, as charged.

Molloy J. Released: May 30, 2024