ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CJ 7473
DATE: 2014-08-12
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Aristotle Panagos and Joseph Kovacs
L. Mathews, C. Braid, R. Prendiville, for the Federal Crown (Mr. Prendiville alone on July 29)
R. DiPietro, for the Defendant, J. Kovacs (Did not appear on July 29)
A. Panagos, Self-Represented
S. Gehl, Amicus Curiae (at the outset on July 29)
I. Khanuja for Legal Aid Ontario (Did not appear on July 29)
E. McGoey as Duty Counsel (Did not appear on July 29)
HEARD: July 14 and July 29, 2014
the honourable mr. p. b. hambly
Judgement
[1] Aristotelis Panagos (Panagos) is charged with possession of Crystal Methamphetamine and Heroin for the purpose of trafficking jointly with Joseph Kovacs (Kovacs) on October 13, 2010. On the same indictment Kovacs is charged with possession of cocaine for the purpose of trafficking. Panagos is unrepresented. Kovacs is represented by Mr. R. DiPietro. The crown is represented by Ms. L. Mathews and Ms. C. Braid. In pre-trial proceedings I appointed Amicus Curiae. I denied a Rowbotham application brought by Panagos. Mr. R. Prendiville who will not represent the crown at trial argued the Rowbotham application for the crown. I gave brief oral reasons in both matters. I reserved my right to provide further written reasons. These are my reasons.
Allegations of the Crown
[2] In 2010 the Waterloo Regional Police conducted an investigation into the trafficking of drugs in Waterloo Region which they called Project Grand Slam. They obtained judicial authorizations to intercept telephone conversations. They conducted surveillance on suspects. In the course of their investigation they gathered evidence against Panagos and Kovacs.
[3] On October 13, 2010 the police stopped a vehicle as it came into Kitchener. The vehicle was owned and driven by Kovacs. Panagos was a passenger in the front seat. In the back seat of the vehicle were 828 grams of crystal methamphetamine and 1 gram of heroin. In the front seat was a satchel which contained identification papers of Kovacs. In the satchel was a 1 ounce package of cocaine. The police arrested both accused. Kovacs was subsequently released. Panagos has been in custody continuously since that date.
[4] The police charged the 2 accused with the charges before the court. They also charged Panagos with trafficking in Crystal Methamphetamine on April 25, 2010 and with trafficking in a controlled substance between October 2 and 8, 2010. Panagos retained Mr. T. Macdonald. Kovacs retained Mr. B. Moss. The accused were committed for trial after a preliminary hearing in the Ontario Court of Justice. They elected to be tried before a court composed of a judge and jury. They first appeared in Superior Court January 27, 2012. On February 24, 2012 the trial was set to commence with a jury on October 15, 2012 for 2 weeks. On September 10 Panagos brought an application for severance of the charges against him on April 29, 2010 and October 2 to 8, 2010. Justice Sloan granted the application on September 18, 2010. The trial on the remaining charges which are before the court currently was set to commence on October 15, 2012 before Justice Sloan. Kovacs discharged Mr. Moss. Justice Sloan granted an adjournment to permit Kovacs to retain new counsel. He retained Mr. DiPietro. The trial was set to commence on June 17, 2013 with pre-trial motions on May 21, 2013.
[5] Panagos re-elected on January 21, 2013 to be tried before Justice Sloan without a jury on the severed charges. Justice Sloan convicted Panagos on these charges on February 21, 2013. On August 8, 2013 Justice Sloan sentenced Panagos to 4 years. He gave him credit for 40.7 months in pretrial custody which resulted in a net sentence of 7.3 months. This sentence has expired. Panagos remains in custody on the charges before the court.
[6] On May 21, 2013 Panagos brought a motion that Justice Sloan recuse himself as the trial judge on the charges before the court based on his having convicted Panagos on the severed charges. Justice Sloan granted the motion. The trial was set to commence on February 28, 2014 for 2 weeks with a jury before me. Pre-trial motions were to take place on June 26, 2013. On that date Panagos brought a motion to recuse me based on my having represented him on a matter in 1988 when I was a practicing lawyer. I had no recollection of doing so. I was prepared to concede that I had done so for purposes of the motion. The crown opposed the motion. In my view the motion did not meet the test set out by the Supreme Court of Canada in the judgment of Justice de Grandpre in Committee for Justice and Liberty, et al. v. National Energy Board (1978), 1976 2 (SCC), 68 D.L.R. (3d) 716 at p. 735 as follows:
... the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information ... That test is 'what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly?'
[7] I dismissed the motion without prejudice to its being renewed on further and better material. I then heard a motion to exclude evidence based on an alleged breach of the right of Panagos not to be subjected to unreasonable search and seizure guaranteed by s. 8 of the Charter. I released a judgment on July 28, 2014 dismissing the motion.
[8] On October 8, 2013 Mr. Macdonald brought an application before the court to be removed as counsel of record for Panagos because Panagos had discharged him. The application came before another judge. He denied the motion without prejudice to its being renewed. Mr. Macdonald did renew the motion on December 19, 2013 at which time it was granted.
[9] The crown brought a motion before me on January 30, 2014 for directions on making disclosure to Panagos where he was in custody at Maplehurst Detention Centre. Panagos asked for an adjournment of the trial set for February 28, 2014 which I granted. He said that he wanted to retain a lawyer privately and that he was actively trying to do this. Ms. Braid attempted to give him blank forms in open court which he could complete to seek a Rowbotham order. He refused to accept the forms. I set February 10, 2014 to receive the submissions of the parties on the appointment of Amicus Curiae. Mr. DiPietro did not appear as a result of a family emergency. Kovacs also did not appear possibly because of a misunderstanding. I set February 18, 2014 to consider the matter. On that date all parties appeared. They were all opposed to the appointment of Amicus Curiae. I declined to make the appointment.
[10] I brought the parties back before the court on July 14, 2014 to reconsider the appointment of Amicus Curiae. I made arrangements of Ms. I. Khannuja to attend. She is a case manager with Legal Aid Ontario who can provide the names of lawyers who will accept an appointment as Amicus Curiae to be paid at legal aid rates. I appointed Mr. S. Gehl who was one the persons whose name she provided as Amicus Curiae. Panagos had completed forms with the assistance of Duty Counsel for “funding through a Rowbotham order… to choose an advocate of choice as is my right to do so”. I set July 29 for Panagos to make this application and for the crown to respond. Mr. R. Prendiville appeared for the crown on July 29.
[11] Both on July 14 and July 29 Panagos as he had on previous occasions made long rambling submissions. He frequently interrupted me and Coounsel. I told him often that he must be quiet while Counsel and I were speaking, that I would give him an opportunity to state his position and that he must wait his turn. He seemed to be incapable of following these instructions. Themes of his submissions were the following:
- That Mr. Macdonald had betrayed his trust
- That he had lost confidence in Mr. Macdonald
- That I should recuse myself because I had represented him when I was a lawyer and that I was a friend of the family. He offered no evidence to support this.
- That he was being treated as a dog in a kennel waiting to be euthanized.
- That I should use my ancillary powers to immediately release him on bail.
- That he longs to be reunited with his wife and infant son.
- That he is a rehabilitated ex con.
- That he had a right to receive funding to retain his counsel of choice which Legal Aid had denied to him.
- On a previous occasion he turned his back to the court. He suggested that the authorities could beat him because he feared nothing.
[12] Notably missing from his affidavit and his submissions on the Rowbotham application was any reference to whether he could afford to retain a lawyer privately. Also, he made no mention of any aspect of the case on which he would require the assistance of counsel. He made no mention of any defence that he wished to advance. He did not address whether he felt that he would need a lawyer to obtain a fair trial.
(continues exactly as in the original judgment...)
P. B. Hambly, J.
Released: August 11, 2014
COURT FILE NO.: CJ 7473
DATE: 2014-08-11
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Aristotle Panagos and Joseph Kovacs
JUDGMENT
P.B. Hambly, J.
Released: August 11, 2014