ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
D. Quayat, for the for the Crown/ Respondent
Respondent
- and -
BILL KASTANIS
D. North, for the Accused/Applicant
Applicant
HEARD: April 23, 2021
REASONS FOR JUDGMENT
ANDRÉ J.
1The Applicant, Mr. Bill Kastanis, brings an Application pursuant to s. 11(b) and s. 24 (1) of the Charter of Rights and Freedoms seeking an order that his rights to have a trial within a reasonable period was infringed and that the drug charges he was convicted of should be stayed. He submits that in the event that the s. 11(b) application is dismissed, the court should impose a sentence of five years imprisonment. The Crown submits that the application has no merit and that Mr. Kastanis should be sentenced to nine years imprisonment.
Background Facts
2On or about October 13, 2015, members of the United States Drug Enforcement Agency, Los Angeles Field Division, (US-DEA, LAFD) were conducting an investigation of the Sinaloa, Mexico, Drug Cartel. This US-DEA investigation included the judicially authorized interception of communications of high-ranking members of the Cartel.
3During the interception of those communications, it was learned that an exchange of 15 kilograms of cocaine had been arranged to occur on October 13, 2015, at the Radisson Hotel, 175 Derry Road East, Suite 414, in Mississauga Ontario, Canada, between an unknown occupant of room 414 and an unknown Canadian runner.
4US-DEA, LAFD provided this information to the US-DEA Ottawa Office, which in turn contacted the Royal Canadian Mounted Police, passing on this information for their appropriate action.
5Upon receipt of this information, at approximately 2:30 p.m., RCMP dispatched multiple officers to the Radisson Hotel setting up surveillance of the Hotel, and specifically room 414 by occupying a room directly across the hall.
6At 6:28 p.m., the RCMP observed a male identified as Omar Munoz-Gomez (an AEROMEXICO Flight Attendant) arrive at the hotel and take residency in room 414. At 8:50 p.m. the RCMP observed a male, later identified as being Bill Kastanis, arrive at the hotel in an All-Star taxi and observed him make his way to room 414 where he knocked on the door and was granted entry.
7When entering room 414, Mr. Kastanis was observed to be carrying nothing in his hands. At 9:00 p.m., Mr. Kastanis exited room 414, at this time carrying two medium sized black bags, and proceeded to walk toward the elevators.
8RCMP Constables Burris and Viera arrested Mr. Kastanis at the elevator on the 4th floor, seized the two black bags, and observed that they contained what appeared to the officers to be bricks of cocaine.
9In total, 15 bricks of cocaine weighing 14.987 kilograms were located within the two black bags, with purity samples being 71 percent, 93 percent and 95 percent, and having a street value of between $536,000 and $1,498,000.
10The police charged Mr. Kastanis with importing cocaine, possession of cocaine for the purpose of trafficking and conspiracy to import and to possess cocaine. Mr. Omar Munoz-Gomez was charged jointly with importing cocaine.
11I convicted Mr. Kastanis of possession of cocaine for the purpose of trafficking on June 10, 2020.
Position of the Parties
Defence Position
12Mr. North submits the following:
- The delay period that is the subject of the s. 11(b) application is the 36 month period between October 13, 2015, and October 2018. That period exceeds the 30 month acceptable delay period established by the Supreme Court of Canada. The subsequent period between October 2018 and June 2020 was waived by Mr. Kastanis and, according to Mr. North, irrelevant to the application. Much of the initial delay was caused by the unavailability of co-counsel. Mr. Kastanis, Mr. North submits, did not cause any delay between October 2015 and October 2018 and on the contrary, sought to expedite the matter by a) bringing it forward on one occasion to address delay issues and b) consenting to a committal for trial.
Crown’s Position
13The Crown submits that the application should be dismissed for the following reasons:
Mr. Kastanis abandoned a declared intention before his trial to bring a s. 11 (b) application, and based on R. v. Rabba, 1991 CanLII 7073 (Ont. C.A.), [1991] OJ No. 883 (QL) at para. 5, that should be considered fatal to his application,
The net delay was caused by discrete events and is below the 30 month presumptive ceiling established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
The Legal Framework
14Section 11 (b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time.
15Section 24 (1) of the Charter provides that anyone whose rights and freedoms have been infringed on or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
16In R. v. Daponte, 2021 ONCA 14, at para. 14, the Ontario Court of Appeal restated the applicable principles initially set out in Jordan and later in R. v. Coulter, 2016 ONCA 704, at paras 34-40. These are,
34Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
35Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
36Compare the Net Delay to the presumptive ceiling (Jordan at para. 66).
37If 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).
38Subtract 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).
39If 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).
40If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
17In R. v. Rabba, 1991 CanLII 7073 (Ont. C.A.), [1991] OJ No. 883 (QL), at para. 5, Arbour J.A. noted that,
In my view, the failure to move for a stay of proceedings, either before or at trial, would, in most cases, be fatal. The failure to move for a stay of proceedings would normally amount to a waiver of any claim which may arise under s. 11(b) of the Charter. To hold otherwise would amount to imposing a duty on the trial judge to examine, in each case, the entire history of the proceedings, on his or her own motion, in order to ascertain whether or not the trial was ready to proceed within a reasonable time.
18In R. v. Bosley, 1992 CanLII 2838 (Ont. C.A.), at para. 19, [1992] OJ No. 2656 (QL) Doherty JA quoted Rabba with approval, and noted that,
The soundness of the principle announced in Rabba is beyond dispute. Rabba was, however, a case (like most delay cases) where there was no impediment to the raising of the delay issue at trial. The delay related to the passage of the time prior to trial. The delay was for a finite period and the relevant factors could be balanced by the trial judge. In addition, the trial judge was in no way implicated in the delay.
19More recent decisions have held that the failure to bring an 11(b) application prior to or at trial may amount to a waiver of any alleged 11(b) breach under Jordan. See R. v. Patel, 2017 ONSC 5827, at para. 17; R. v. Cameron, 2017 ABQB 539, at paras. 34 – 36.
Analysis
20In deciding whether or not Mr. Kastanis’ s. 11(b) right was violated, I am required to analyze the various court appearances and determine whether any of the delay periods is attributable to the applicant.
Court Appearances
October 14, 2015 The matter was remanded to the next day.
October 15, 2015 The matter was remanded to October 22, 2015 for a bail hearing.
October 22, 2015 Mr. Kastanis was released on a recognizance. This matter was remanded to November 20, 2015.
November 20, 2015 The matter was remanded to December 4, 2015. It was again remanded to December 4, 2015 and then to January 8, 2016. On the latter date disclosure was still not available. The matter was then remanded to February 12, 2016.
February 12, 2016 Disclosure was still outstanding. The matter was adjourned to February 19, 2016 to set a judicial pre-trial.
21Mr. Kastanis’ lawyer proposed dates for February 22, 26 or 29, 2016 to set a Judicial Pre-trial. Co-counsel was not available until March 18, 2016. On March 18, 2016, the court adjourned the Judicial Pre-trial because co-counsel was ill. The Judicial Pre-trial was held on April 1, 2016. Counsel for Mr. Munoz-Gomez adjourned the matter to April 15, 2016 to decide if the trial would be in the Provincial Court or Superior Court.
22On April 15, 2016, Mr. Kastanis’ counsel indicated that he wished to set a trial date or another Judicial Pre-trial. Counsel for Mr. Munoz-Gomez sought a return date of May 6, 2016. Mr. Kastanis’ counsel indicated that he was available on April 22, 2016 but Mr. Munoz-Gomez’s counsel was not available. The parties obtained a date of May 11, 2016 for a Judicial Pre-trial. On that date, the Judicial Pre-trial did not proceed because of the unavailability of Mr. Munoz-Gomez’s counsel.
23The matter was then remanded to June 29, 2016 for a Judicial Pre-trial. On that date the matter was adjourned to March 20- 22, 2017 for a Preliminary Hearing. Mr. Kastanis’ counsel advised the court that they had available dates in August, September and November 2016 but Mr. Munoz-Gomez’s counsel did not.
24Mr. Munoz-Gomez pled guilty on November 25, 2016. Mr. Kastanis appeared in court on February 6, 2017 for a Dawson application. The matter did not proceed because Mr. Munoz-Gomez had resolved his charges and the Crown had new U.S. “wiretaps” to be disclosed. The matter was therefore adjourned to March 3, 2017.
25On March 3, 2017, the matter was adjourned to March 24, 2017 and then to April 21, 2017 for the new disclosure. The Crown provided some of the new disclosure on the latter date and the parties then adjourned the matter to May 12, 2017, at which time the Crown provided additional disclosure.
26On April 24, 2017, Mr. Kastanis’ counsel filed a Judicial Pre-trial report indicating that Mr. Kastanis intended to bring an 11(b) application. He never did.
27The parties adjourned the matter to May 26, 2017 and set a Judicial Pre-trial for August 2, 2017. The matter was adjourned to August 11, 2017, at which time the Applicant set April 24 – 26, 2018 and May 1, 2018 for a ‘discovery” hearing.
28The parties brought the matter forward to February 16, 2018, to address delay issues in light of the Supreme Court of Canada’s decision in Jordan. The Applicant’s counsel advised the court that Mr. Kastanis was prepared to be committed to stand trial. As a result, he succeeded in obtaining an earlier first appearance date in Superior Court. Mr. Kastanis’ counsel also reduced the discovery hearing to two days.
29On May 1, 2018, following a one day hearing, the court scheduled a two-week jury trial for October 2018. On September 25, 2018, Mr. Kastanis’ counsel adjourned the trial and waived Mr. Kastanis’ s. 11(b) Charter rights. He advised the court that he had experienced flooding at his office which had damaged his files. The Crown consented to the adjournment. Mr. Kastanis’ trial proceeded on February 3 – 5, 2020. I convicted Mr. Kastanis on possession of cocaine for the purpose of trafficking on June 10, 2020.
Delay Attributable to the Applicant
30The delay attributable to Mr. Kastanis is as follows,
- May 26, 2017 to August 11, 2017
On May 26, 2017, the Applicant, in setting a date for a judicial pretrial, advised that he was not available until August 2, 2017. Part of this delay is attributable to the Applicant, given that there were earlier dates for the Judicial Pre-trial. In my view at least two months of the delay period is attributable to the Applicant.
- August 11, 2017 – April 24, 2018
On August 11, 2017 the parties set a date for a discovery hearing. The Trial Verification Form (“TVF”) prepared by the Trial Coordinator, who offered dates for the hearing, indicates that the court could accommodate the hearing in January 2018 but the Applicant’s counsel was unavailable. Accordingly, approximately three monts of this delay period is attributable to the Applicant.
- March 9, 2018 – May 1, 2018
On March 9, 2018, Justice Durno offered to set dates for trial after voicing concerns about s. 11(b). The Applicant did not wish to do so largely because of the impending discovery hearing previously scheduled for April 24, 2018. As a result of the Applicant’s unwillingness to set trial dates on March 9, 2018, the trial dates were not set until May 1, 2018, a delay of 1 month and 22 days, which is attributable to the Applicant.
Communal Delay
31There were delay periods which were caused by the unavailability of co-counsel either because of illness, or a conflict in his schedule. For example, between March 18, 2016 to April 1, 2016, counsel for the co-accused was ill and the Judicial Pre-trial was delayed by two weeks. Following a Judicial Pre-trial on April 1, 2016, there was a further two-week delay because defence counsel requested a two-week period to consider their trial options. Third, the May 11, 2016 Judicial Pre-trial had to be adjourned to June 29, 2016 because counsel for the co-accused was involved in a Superior Court trial in another jurisdiction.
32This delay period of approximately two months and three weeks is attributable to the Applicant for the following reasons. First, the Applicant raised no concerns about the delay and was therefore content with the pace of proceedings. Second, if the Applicant was concerned that his co-accused was delaying the matter unnecessarily, he could have quite easily sought to sever his charges from those of the co-accused. His failure to do so justifies a conclusion that this delay period is attributable to him.
Total Delay Attributable to the Applicant
33The total delay period attributable to the Applicant is the aggregate of the following delay periods:
A. May 26, 2017 – August 11, 2019 - Two months
B. August 11, 2017 – April 24, 2018 - Three months
C. March 9, 2018 – May 1, 2018 - One month three weeks
34The total delay period attributable to the Applicant is therefore six months and three weeks.
35In my view, the Applicant’s failure to bring an 11(b) application prior to the trial despite his expressed intention to do so and despite having ample opportunity to bring such an application is fatal to his post-conviction s. 11(b) application. Even if I am wrong in this conclusion, the delay attributable to the Applicant takes the overall period of delay between 2015 and 2018 below the thirty months overall delay period established in Jordan. To that extent, the Crown did not violate Mr. Kastanis’ s. 11(b) Charter rights.
Conclusion
36The 11(b) application is dismissed.
Sentence
37The Crown submits that a proportionate sentence in this case is nine years imprisonment while defence counsel submits that the appropriate sentence is five years imprisonment.
38Section 718.1 states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Deciding what sentence would be appropriate necessarily involves a consideration of the aggravating and mitigating factors, the relevant sentencing principles and the applicable jurisprudence.
Aggravating Facts
39The nature of the imported drug makes the offence very serious. Courts have described cocaine as a scourge, epidemic and a cancer in our society: R. v. Daya, [2007] O.J. No. 3865 (Ont. C.A.); R. v. Woolcock, [2002] O.J. No. 4927 (Ont. C.A.); R. v. Brisset, [2004] O.J. No. 3378 (Ont. S.C.).
Aggravating Factors
The value of the imported cocaine range from $536,000 to 1.498 million.
The manner in which the drug was brought into Canada was very sophisticated and involved the participation of a dangerous South American drug cartel.
A large quantity of drugs, approximately fifteen kilograms, was found in Mr. Kastanis’ possession.
The motivation for Mr. Kastanis’ involvement in the scheme was financial gain;
Mr. Kastanis’ role in the scheme was more than that of a drug courier.
Some of the cocaine tested at 95 per cent purity, which permitted it to be distributed and sold in large quantities.
Mitigating Factors
Mr. Kastanis has no criminal record;
Ten relatives, friends and work colleagues, have written letters in support of Mr. Kastanis,
Mr. Kastanis has been on a very restrictive recognizance for over five years;
Mr. Kastanis is a hardworking individual who has been a contributing member of society;
Mr. Kastanis, largely because of the widespread support he enjoys in the community, has excellent propects for rehabilitation.
Discussion
40Forty-four year-old Mr. Kastanis is the youngest son of his parents. He left high school in grade 10 and then joined the family floor cleaning business. He has a twenty-six-year-old daughter who was raised by his mother. She now lives with Mr. Kastanis.
41A number of courts have stipulated that the paramount sentencing principles in the sentencing of those found guilty of possession of cocaine for the purposes of trafficking are general deterrence and denunciation: see Woolcock, at para. 8; R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (Ont. C.A.), at paras. 104-105.
Sentence Range
42In R. v. Madden (1996), 1996 CanLII 10212 (ON CA), 104 C.C.C. (3d) 548 (Ont. C.A.) the Ontario Court of Appeal noted that a sentence range of three to five years is appropriate for a first-time offender who imported one kilogram or less of cocaine. In R. v. Cunningham, [1995] O.J. No. 4369 (Ont. C.A.) the same court held that the range for importing large multi-kilograms of cocaine was six to eight years. However, in R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, the Supreme Court of Canada cautioned that sentencing ranges are not “straitjackets” and that downward deviations from such ranges are permissible as long as the sentence imposed is a proportionate sentence under s. 718.1: R. v. Noseworthy, 2021 NLCA 2 at paras. 17-18, R. v. Locke, 2016 BCSC 1540, at para. 101.
43Would a five-year term of imprisonment be a proportionate sentence in this case? In my view it would not. In R. v. Bryan, 2011 ONCA 273, the Ontario Court of Appeal noted that “normally, in cases of this nature, sentences of 5 to 8 years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine.” The amount of cocaine in the case vastly exceeds that in Bryan. Furthermore, Mr. Bryan pled guilty, while Mr. Kastanis does not have the benefit of this mitigating factor.
44In R. v. Kum, 2012 ONSC 1314, the court sentenced a 57 year-old first offender, who had been convicted of trafficking three kilograms of cocaine, to eight-years imprisonment. In Madden, the proposed sentence range for the importation of a kilogram or less of cocaine, was three to five years imprisonment. These cases, in my view, suggest that the importing of a kilogram or less of cocaine is three to five years imprisonment. Thus, the sentence suggested by Mr. North would be demonstrably unfit, given the gravity of the offence and even after factoring Mr. Kastanis’ personal circumstances.
45What then, would be an appropriate sentence in the circumstances of this case? In my view, the sentence should significantly exceed five years imprisonment. The sophistication of the scheme, the quantity, purity and value of the cocaine and, Mr. Kastanis’ involvement in the scheme collectively suggest that a sentence in the range of 8 to 10 years is appropriate. However, given the widespread support Mr. Kastanis enjoys in the community, the fact that he has been a productive member of the community and the restrictive bail conditions he has had to comply with since 2015, the appropriate sentence is eight years imprisonment.
Ancillary Orders
DNA order (secondary designated offence).
Order of forfeiture of the proceeds of crime including the cellular phone seized.
Section 109 (1)(a) order for 10 years and 109(1)(b) order for life.
André J.
Released: June 3, 2021