CITATION: R. v. Avgeropoulos, 2017 ONSC 4626
COURT FILE NO.: CR-16-70000077-00AP
DATE: 20170731
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
GEORGE AVGEROPOULOS
Appellant
Melissa Mandel, for the Crown, Respondent
Peter Thorning, for the Appellant
HEARD: June 14, 2017
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
[1] The Appellant drove his car into a parked vehicle on a residential street near his home in the early morning hours of March 26, 2014. The owner of the parked car saw him stagger away. She called the police. The police found him and arrested him for failing to remain at the scene. He was charged with impaired driving, failing to remain at the scene, and having more than 80 milligrams of alcohol in 100 milliliters of blood.
[2] The Appellant brought a series of Charter applications at trial. He won some of them: an application to exclude the breath samples under s. 8 was successful. An application to exclude the in-car video on the basis of a violation of s. 10(b) of the Charter was not. Neither was an application to stay the charges for unreasonable delay contrary to s. 11(b) of the Charter. The day that the trial judge was to deliver judgment was only two weeks after the Supreme Court of Canada released R. v. Jordan, 2016 SCC 27 on July 8, 2016. The trial judge refused to re-open the s. 11(b) ruling.
[3] The Appellant argues that the trial judge, Justice Griffen of the Ontario Court of Justice, erred by refusing to permit him to re-open the delay argument and that, in any event, he erred in his delay analysis. The Appellant also argues that the trial judge erred by failing to exclude the in-car video. In my respectful view, the trial judge made no errors. For the reasons that follow, the appeal is dismissed.
FACTS
[4] On March 26, 2014 at around 3:30 or 3:45 am Laura Richards was asleep in bed in her home in the City of Toronto. She heard a loud crash. She heard a continuous horn. A black SUV, a Honda Pilot, had hit her husband’s car. She saw someone – the Appellant – get out of the Honda Pilot. The Appellant stumbled away from it. The Appellant’s Honda Pilot had pushed her husband’s car forward. It was blocking the street. She called 911. She told the dispatcher that the driver was walking away. She went down to the street. Ms. Richards made several observations of the Appellant. He appeared to be drunk. He could barely walk. He was stumbling. She told 911 that the Appellant was walking away and gave a description. She followed him and stayed on the phone with the 911 dispatcher. At that point a police officer caught up.
[5] Constable Burgin was that officer. He and his partner were dispatched to the scene and arrived there at about 3:42 am. They were in a marked police car and in uniform. He observed that the Honda Pilot had “t-boned” the SUV. He learned that Ms. Richards was following the Appellant. He ran to catch up. He observed that the Appellant was stumbling on and off the sidewalk. He attempted to arrest him for failing to remain at the scene of an accident. The Appellant told Constable Burgin to “fuck off” and pushed him away. He was very aggressive but Constable Burgin subdued him and cuffed him. He smelled a strong odour of alcohol coming from the Appellant. He noted that the Appellant was slow and sluggish. He considered whether the stumbling may have been caused by the accident. He eventually formed reasonable grounds to believe that the Appellant was impaired. Those grounds were based on the accident, the stumbling, and the strong smell of alcohol.
[6] Once the Appellant was subdued Constable Burgin completed the arrest and gave him his rights to counsel. Constable Burgin’s partner drove the scout car over to them. Constable Burgin searched the Appellant. He found car keys, a phone, and cash. He put these items back in the Appellant’s pockets. They all returned to the scene of the accident. At that point the Appellant was arrested, given his rights to counsel, and again asked if he wanted to speak to a lawyer. He did.
[7] No access to a lawyer was provided at that point. Instead, the police conducted another search of the Appellant. This time the search was conducted on camera. Constable Burgin testified that he wanted to conduct a search on video. The Appellant had a large quantity of cash. He also asked the Appellant questions and obtained answers. He agreed in cross-examination that he made a mistake and violated the Appellant’s right to counsel by asking questions and by obtaining evidence prior to the Appellant speaking to a lawyer. He denied that returning to the scene with the Appellant was a ruse. The trial judge, in his ruling, agreed that it was proper for the police to return in order to conduct the investigation. There was no ruse.
[8] The video captured the Appellant stumbling, and leaning on the police car (at Constable Burgin’s direction) so that he would not fall. The video also captured the Appellant slurring his words and mumbling.
[9] Constable Burgin seized a set of keys from the Appellant. He used the keys to activate the brake lights and locking mechanism on the Honda Pilot. At that point the Appellant admitted that he had been driving it.
[10] At the station, the Appellant contacted his brother-in-law, Anthony Moustacalis, a prominent criminal defence lawyer. Mr. Moustacalis told the police that he had a conflict. He indicated that the Appellant should be permitted to contact another lawyer. The police took the breath samples before the Appellant could do so. At 5:34 am and 6:00 am the appellant’s blood alcohol content readings were 184 and 181 milligrams of alcohol in 100 millilitres of blood, respectively. The breath technician also observed signs of impairment.
ANALYSIS
[11] Mr. Thorning, with his usual skill, raises three issues on behalf of the Appellant: first, did the trial judge err in his 11(b) ruling? Second, should the trial judge have permitted him to re-open the delay argument after Jordan was released? And third, was the trial judge entitled to rely on the indications of impairment captured by the in-car video camera?
(a) Did the trial judge err in his 11(b) ruling?
[12] The Appellant was arrested on March 26, 2014. The first trial date had been set for June 18-19, 2015. The Appellant’s position was that an out-of-town judge was required to hear the trial. That was because Mr. Moustacalis was a Toronto lawyer. The Appellant planned to call him. The second trial date was set for November 3 and 4, 2015, when the first trial judge, Justice Hunter, recused himself. The second trial date was 19 months and 9 days after the charges. The Appellant then brought a motion to dismiss the charges for violations of s. 11(b) of the Charter prior to trial. The trial judge found that the 4 ½ month delay between June 18-19 and November 3-4 should be treated as neutral under the pre-Jordan framework: R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771; R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199.
[13] The Appellant argues that the trial judge erred in treating the 4 ½ months of delay as neutral. He argues that if the trial judge had correctly treated the time as institutional delay than the overall delay would have been 19 ½ months, thus exceeding the Morin guidelines by 1 ½ months. The first trial judge, Justice Hunter, was brought in from the East Region. The Appellant brought a recusal motion due to an incident several years earlier between Mr. Moustacalis and Justice Hunter. Mr. Moustacalis had apparently brought an apprehension of bias application before Justice Hunter. Justice Hunter did not recall the incident. Nonetheless, he recused himself out of an abundance of caution. The Appellant pointed out after the recusal motion that the trial office had not notified the parties of the identity of the trial judge. Counsel had no idea that he might be bringing a recusal motion until he learned Justice Hunter’s identity.
[14] I must respectfully disagree. There is no obligation on the court staff or a pre-trial judge to “vet” the identity of the trial judge with the parties. There is also no obligation on the part of the court staff to provide the parties with the name of the trial judge prior to the commencement of trial on the off-chance that someone might have a conflict. No authority has been cited for the proposition that such an obligation exists. It would be very surprising if there were such authority.
[15] The Appellant relies on R. v. Bowman, [2008] O.J. No. 5685 (Ont.C.J.). In that case, the out-of-town judge was supposed to preside. On the day of trial no out-of-town judge was available and the trial had to be adjourned. Justice West found that the resulting delay was institutional. In my respectful view, that case is factually distinguishable. Here, there was an out-of-town judge. It could not have been reasonably foreseen that there would be a successful recusal motion.
[16] Some local courts may have different practices. It was apparently the practice of the court staff at this particular location of the Ontario Court of Justice to provide the name of the trial judge to defence counsel but that did not happen prior to the court date. That may have been the practice, but it was not an obligation. Still less can that practice be bootstrapped into a right.
[17] In any event, it is not certain that knowing Justice Hunter’s identity would have made any difference, for three reasons:
• First, scheduling judges is not always a simple matter. For example, it may be that a judge is scheduled to start a trial, but due to a matter going longer than scheduled that judge may not be available – and a less busy judge may be substituted at the last minute. That is a very common occurrence, especially in the Ontario Court of Justice.
• Second, it may not have been possible to find a judge from another jurisdiction to substitute for Justice Hunter on short notice. There was no evidence that another out-of-town judge was available. As Doherty J.A. pointed out in R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 (C.A.) at para. 27: “No case is an island, to be treated as if it were the only case with a legitimate demand on resources.”
• Third, there was no guarantee that the motion would inevitably have resulted in Justice Hunter’s recusal. Justice Hunter had no memory of the event. On my review of the facts he might reasonably have taken the view that there were no realistic grounds for recusal and proceeded with the trial.
[18] The trial judge characterized the recusal as “one of those things that happens” from time to time in the criminal courts. He relied on R. v. Meisner (2004), 2004 CanLII 30221 (ON CA), 190 O.A.C. 24 where the Court of Appeal stated at paras. 2-3:
The appellant's trial could have proceeded on the first trial date. Prior to the commencement of the trial, however, counsel for the appellant quite properly advised the trial judge of a potential conflict of interest based on some prior connection between the trial judge, when he was a lawyer, and the appellant and/or his family. In the light of the appellant's position, the trial judge -- again quite properly -- decided that he should not conduct the trial. All other trial courts were engaged and the trial therefore had to be adjourned. December dates were offered to the appellant, however, counsel was only available in January.
The adjournment of the appellant's trial is an example of one of those things that happens from time to time in the criminal process for which no one can be faulted and which almost inevitably requires an adjournment and rescheduling. Just as intake time is allowed when a case initially comes into the criminal justice system, it is inherent in the process that some time must be allowed to reschedule matters that are adjourned for reasonable and unforeseeable reasons for which no one can be faulted. In this case, the system was ready to accommodate the appellant some three months after the first scheduled trial date. In our view, this was a reasonable accommodation and we would regard that three-month period as neutral for the purposes of the s. 11(b) assessment.
[19] In my respectful view, this statement accurately describes what happened in this case. The trial judge made no error in characterizing this 4 ½ month delay as neutral.
[20] In any event, under the Morin guidelines, the 18-month rule was not treated as a limitation period. The question in any 11(b) decision under Morin was always whether the overall delay was reasonable. It is difficult to see how missing the Morin guideline of 16-18 months of institutional delay in the Ontario Court of Justice by 1 ½ months would have resulted in a stay of proceedings. That did not account for any intake time. It also did not account for the absence of prejudice to the Appellant (a finding by the trial judge that has not been challenged on appeal). It also did not account for the fact that the Appellant would not set a trial date unless he had all of the disclosure, including disclosure that did not really affect his ability to set a trial date: R. v. Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 73 O.R. (3d) 161 (C.A.) at para. 47. As Code J. observed in R. v Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187 at para. 114, defence counsel is only justified in refusing to set a date where the disclosure is material to a crucial step in the process, such as election or plea.
[21] I therefore find no error by the trial judge in his analysis under s. 11(b) of the Charter.
(b) Should the trial judge have permitted the Appellant to re-open the delay argument?
[22] The trial judge dismissed the 11(b) application on October 23, 2015. The trial proper commenced on November 4. The trial judge delivered a ruling in relation to s. 8 and s. 10(b) of the Charter on February 2, 2016. The ruling resulted in the dismissal of the “over 80” charge. There was further evidence on June 24, 2016 when the Appellant testified. The Supreme Court of Canada released Jordan on July 8, 2016. The trial judge was to deliver his judgment on July 22, 2016. The Appellant’s counsel applied to re-open the delay application on the grounds that Jordan now applied. The trial judge refused to do so. He then delivered his judgment finding the Appellant guilty of the remaining charges.
[23] The Appellant argues that the trial judge erred by refusing to permit the re-opening of the delay argument. He argues that Jordan is the controlling authority. The trial judge should have applied it, as the case was still in the system: R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246.
[24] I disagree for two reasons. First, the trial judge clearly had a discretion as to whether to permit re-opening the delay issue, and he did not err in the exercise of his discretion; and second, even if the trial judge had permitted re-opening the Appellant could not have succeeded.
[25] A trial judge has a discretion as to whether to permit a party to revisit an issue: R. v. Hayward (1993), 1993 CanLII 14679 (ON CA), 86 C.C.C. (3d) 193 (Ont.C.A.). As Doherty J.A. observed in that case, where a trial judge permits (or refuses) a party to call further evidence after closing its case, an appellate court will not interfere where the court has exercised its discretion judicially. I agree with my colleague Nordheimer J. that there is no “hard and fast” rule to be applied to a discretionary decisions: R. v. Papasotiriou, 2016 ONSC 4880 at para. 24.
[26] In this case, the trial judge found that it would be very problematic to re-visit the ruling. Distilled to its essence, the trial judge found that nothing about Jordan required re-visiting the ruling. There was nothing complex about the original ruling that demanded revisiting his original characterization of the periods of delay. The trial judge was also concerned about the impact on the administration of justice if he re-opened something that had already been found reasonable under the Askov framework.
[27] I agree with the trial judge’s observations. In my view, his concerns about the impact on the administration of justice were well-founded. The Supreme Court of Canada in Jordan was careful to point out that the immediate radical consequences of Askov should be avoided.
[28] The Appellant relies on R. v. Nazarek, 2016 BCSC 1927. Watchuk J. of the British Columbia Supreme Court permitted accused persons to re-open a delay application. The original application was decided prior to Jordan. Jordan was released in the midst of the trial. The Crown agreed that re-opening should be permitted in the circumstances of the case but argued that the application should be dismissed – Jordan did not make that which was reasonable before Jordan unreasonable. Watchuk J. permitted re-opening but decided to wait until the end of the evidence to rule. Her Honour also made the following observations at paras. 69-70:
However, for most cases that are already in the system, the Supreme Court of Canada stated that the release of Jordan should not deem unreasonable that which would have been considered reasonable when the charges were laid (Jordan at para. 102). For example, institutional delay that was reasonably acceptable under Jordan's predecessor decision, R. v. Morin, should be considered as part of the reasonable time requirements for cases already in the system (Jordan at para. 100).
The law is well established that a Court may exercise its discretion to revisit prior rulings. The Crown agrees that it is appropriate for this Court to revisit its ruling on s. 11(b) of the Charter given the significant change in the law
[29] In my view Nazarek does not assist the Appellant. Watchuk J. pointed out that she was not obliged to re-open the application. She simply decided to exercise her discretion to do so.
[30] It is true, as the Appellant points out, that Jordan applies to all cases in the system. That in and of itself does not mean that a trial judge is bound to revisit rulings that have already been made. Moreover, this is a transitional case. Transitional exceptional circumstances exist where the time taken is justified based on reasonable reliance by the parties on the law as it stood before Jordan. This is very clearly a case where the parties did so – the trial judge found that the delay did not exceed the Morin guidelines and he was right to do so.
[31] I turn to the second reason why the Appellant cannot succeed on this point. It is because he could not have succeeded even if the trial judge had permitted re-opening. The recusal of Justice Hunter was clearly a “discrete event” constituting exceptional circumstances as the Supreme Court defined that term in Jordan. Discrete events are to be subtracted from net delay: Jordan, at para. 75; R. v. Coulter, 2016 ONCA 704 at para. 37.
[32] The Court in Jordan described exceptional circumstances this way:
Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.
[33] A discrete event is something that cannot be foreseen or avoided: Jordan at para. 73.
[34] I cannot see how Justice Hunter’s recusal can be called anything but a discrete event under the Jordan framework. Counsel did not know that Justice Hunter would be the trial judge. As I have already explained, there was no obligation on the court staff to notify the Appellant of the identity of the trial judge, and no right to prior notification. As well, the result may have been no different even if counsel had learned the identity of the judge prior to the first trial date.
[35] In my view, the trial judge made no error when he dismissed the application to reopen.
(c) Was the trial judge entitled to rely on the in-car camera?
[36] The Appellant argues that the trial judge should have excluded the evidence of the in-car video camera. The in-car video showed, among other things, clear evidence that the Appellant was stumbling and had gross motor problems. It was clearly evidence of impairment.
[37] The Appellant was largely successful in his Charter motions. The trial judge found a violation of s. 8 and excluded the breath samples. The trial judge also found that the police violated s. 10(b) and excluded any statements made by the Appellant. The Crown had, in any event, conceded that the statements made at the scene were inadmissible. The Appellant had also argued that when the police brought the Appellant back to the scene it was a ruse. The trial judge soundly rejected that argument.
[38] The Appellant argues, however, that he was entitled to an independent assessment of whether the statements obtained at the scene were a breach of his rights, even though the Crown had already conceded that it was not relying on them. As I understand the Appellant’s argument, if the trial judge had done this independent analysis he would have excluded the video under s. 24(2) of the Charter.
[39] With respect, I cannot agree with this submission. Once the Crown had agreed to not to rely on the Appellant’s statements, there was nothing to exclude. The Appellant essentially argues that the trial judge should still have conducted an analysis under s. 24(2).
[40] The Crown’s concession was proper: R. v. Orbanski, [2005] SCC 37. In my view, however, the real question is not whether the trial judge was correct not to conduct a s. 24(2) analysis on evidence that the Crown was not relying on – he obviously was correct. There is no such obligation on a trial judge. The real question was whether the observations of the police officers as to the Appellant’s impairment were admissible.
[41] R. v. Milne (1996), 1996 CanLII 508 (ON CA), 28 O.R. (3d) 577 (C.A.), which was approved in Orbanski, applies. In Milne the Court of Appeal determined that roadside screening tests could not be used to incriminate an accused person in an impaired driving case. That is because the screening tests are done prior to giving an accused person the right to counsel. Moldaver J.A. (as he then was) was careful, however, to distinguish between those screening tests that an accused person is required to participate in (such as blowing into an approved screening device or doing physical coordination tests) and observations of impairment made by police officers during interactions with a suspect. He stated at para. 40:
I wish to make it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist in roadside tests authorized by s. 48(1) of the HTA, specifically designed to determine impairment or a blood- alcohol level exceeding 80 mg. I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment. Counsel for the appellant took no issue with this differentiation. Indeed, he conceded in argument that such evidence, obtained indirectly through observation, would be admissible at trial.
[42] The in-car video camera simply confirmed the observations of the officers as to the Appellant’s impairment – and the evidence of impairment was overwhelming. Those observations were admissible. It should also be remembered that it was also a video of something that took place in public in a street. No privacy issues were engaged. The in-car video was highly reliable evidence that the trial judge could use to confirm or refute a fact. We are moving to a world, for better or for worse, where much of the interaction between the police and the public is caught on video. That video has the potential to protect everyone. It would be very bad legal policy indeed to find that the observations of the officers are admissible, but the video confirming those observations are not. In any event, there is no rule requiring exclusion of observations by police officers where a trial judge has found a breach of s. 10(b). In my respectful view the trial judge was correct.
DISPOSITION
[43] The appeal is dismissed.
R.F. Goldstein J.
Released: July 31, 2017
CITATION: R. v. Avgeropoulos, 2017 ONSC 4626
COURT FILE NO.: CR-16-70000077-00AP
DATE: 20170731
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
GEORGE AVGEROPOULOS
Appellant
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
R.F. Goldstein J.