SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CJ 7473
DATE: 2012-09-18

RE: R. v. Aristotelis Panagos

BEFORE: James W. Sloan

COUNSEL:
Lisa Mathews & Iona Jaffe, for the Crown
Tyler MacDonald, for Aristotelis Panagos

HEARD: September 10, 2012

ENDORSEMENT

[ 1 ] Panagos is currently charged with four counts under the Controlled Drugs and Substances Act . He is accused of trafficking the drug ecstasy to one Denton Emonts on April 28, 2012, and trafficking an unknown substance in an unknown quantity at an unknown location to Denton Emonts on April 29, 2012.

[ 2 ] In addition Panagos along with one Jopseph Kovacs is jointly charged with being in possession of methamphetamine and heroin for the purpose of trafficking on October 13, 2012. At that time Panagos was the passenger in a car driven by one Kovacs. The drugs were found in concealed packaging in the back seat of the car, and allegedly were to be sold to Emonts.

[ 3 ] In essence the Crown alleges that Panagos was in the business of selling illegal drugs.

[ 4 ] Panagos now submits that he is entitled to three separate jury trials, one for each count.

[ 5 ] Jury trials are expensive and the public has an interest in speedy and cost effective trials while at the same time making sure the accused gets a fair trial.

[ 6 ] The evidence in all three counts is relatively simple, however the main thrust of Panagos’ argument for separate trials is that he will likely testify in his own defence on counts 3 & 4 but not on counts 1 & 2.

[ 7 ] Panagos therefore argues that if all the counts are tried together and he testifies with respect to counts 3 & 4, the Crown would cross examine him with respect to counts 1 & 2 and he would lose his right to remain silent on those counts. For the court to accede to this argument it must find it to be subjectively and objectively reasonable that Panagos would probably testify on counts 3 & 4.

[ 8 ] Panagos relies heavily on the case of R. v. Last 2009 SCC 45 () , [2009] 3 S.C.R. 146, where at paragraph 1 the court states that the Crown enjoys a large discretion in deciding to include more than one count in an indictment, but goes on to say that “the overarching criteria are the interests of justice” on an application to sever.

[ 9 ] At paragraph 16 the court states “... The interests of justice encompass the accused’s rights to be tried on the evidence admissible against him as well in society’s interest in seeing that justice is done in a reasonably efficient and cost effective manner....”

[ 10 ] At paragraph 26 the court states that the accused’s stated intention to testify on some counts and not on others should be objectively reasonable and should also have a subjective component to it.

[ 11 ] The Crown submits that even if severance is granted, such that counts 3 & 4 were heard separately, Panagos could be cross examined during the trial on counts 3 and 4 with respect to his relationship with Emonts on counts 1 & 2.

[ 12 ] The nexus of all of the counts come from Panagos’ alleged relationship with Emonts. In essence, Emonts sells drugs to the public as evidenced by his sales of drugs to an undercover police officer, and it is alleged Panagos was a supplier of at least some of the drugs Emonts sold.

[ 13 ] In addition Emonts has a relationship with the undercover police officer.

[ 14 ] For the most part the same witnesses will be called on each count.

[ 15 ] It appears that the evidence against Panagos on counts 1 & 2 is circumstantial and it may very well be that he would be better off not testifying.

[ 16 ] On counts 3 & 4, where Panagos was arrested in an automobile where drugs were found in the back seat, it makes sense that he may very well have to testify to deny ownership of or control over the drugs.

[ 17 ] Although I make these findings, I also note the difficulty the court has in determining the subjective and objective reasonableness of an accused who simply states through counsel that he probably will not testify to some of the counts but will testify to other counts in a multi count indictment and provides no other evidence of why or what he/she may say. The Crown on the other hand in this case submits that the accused has a lengthy criminal record but does not attach it or state it is a record for drug offenses.

[ 18 ] On the evidence before me I agree with the defence that there is a likelihood of unfairness to Panagos if he decides to testify to counts 3 & 4 but not to 1 & 2. I therefore sever counts 3 & 4 from counts 1 & 2.

[ 19 ] I decline to sever count 1 from count 2 and therefore counts 1 and 2 shall be tried together. A properly instructed jury should have no problem assessing the evidence for each offense separately.

[ 20 ] This matter is adjourned to Assignment Court on September 28, 2012, at 9 am.

J.W. Sloan J.

Date: September 18, 2012