A former Hamilton pharmacy co-owner charged with a drug trafficking scheme that allegedly involved diverting prescription narcotics to the underground market has had his charges stayed due to unreasonable judicial delay.
Angelo Kirkopoulos was charged by the RCMP on May 8, 2018 with multiple counts of possession of drugs, trafficking and proceeds of crime.
At the time, he co-owned the Mt. Cross Pharmacy on Concession Street, where the RCMP alleged that 400,000 doses of prescription drugs, including fentanyl, hydromorphone, oxycodone and amphetamines, had been diverted.
Last Friday, Superior Court Judge Andrew Goodman stayed charges against Kirkopoulos, finding that Hamilton’s human rights under the Charter had been violated because of the time that had elapsed since his arrest and the end of his trial scheduled for January.
The stay is among an unprecedented number of court cases that have been threatened due to a lagging system, in part due to pandemic restrictions.
A judicial stay is an extraordinary remedy and should be the last resort, Goodman wrote in his written decision in the case. “It is a right that should not be taken lightly.”
After multiple delays, including the hiring of a new attorney by Kirkopoulos, the suspension of jury trials amid the COVID-19 pandemic, and then long waits for available courtrooms and judges, the trial was scheduled to begin on January 9, 2023 and continue until approximately January. 20 – more than four and a half years after his indictment.
Under the case law, known as the Jordan decision, courts must hear provincial court cases within 18 months and Superior Court cases within 30 months.
Goodman found the total delay to be 56.5 months. He subtracted seven months from that total for delays caused by the defence, which do not count against the Jordanian clock, and an additional 14 months subtracted due to the “exceptional circumstances” of the pandemic. The balance was 35.5 months overdue.
Defense attorneys Jaime Stephenson and Cristina Valeri brought the application under section 11(b) of the Charter of Rights and Freedoms. They admitted some delay was caused by the defense when Stephenson took over the case in July 2020, however, the lawyer was “flexible and available at short notice”, the court heard.
According to the 23-page written decision, there were several scheduling issues. The trial was scheduled for January 2022, however, the court again suspended jury trials due to the pandemic and the trial dates were lost. The trial coordinator could not find new dates until 2023.
Geoff Roy of the Public Prosecution Service of Canada argued that more of the delay should be attributed to defense and the pandemic, calculating the delay at 26 to 28 months, below Jordan’s cap. However, Goodman disagreed.
“Based on my review of the transcripts and filings, the unavailability of defense counsel, combined with the change of counsel, created a delay attributable to the defense and is a delay caused by the defense, but not to the extent advanced by the Crown,” Goodman concluded.
“Mr. Kirkopoulos is very relieved to no longer have the burden of these charges hanging over his head, as it has for the past four years,” Stephenson said on behalf of his client. “Although he would have preferred the closing a post-trial acquittal, he is happy to move on with his life and continue with his business and family.”
Stephenson noted that they spent months waiting for a new trial date to be set by the court after last January’s adjournment, with the defense and the Crown juggling schedules.
“It is clear that the backlog caused by COVID has overwhelmed available judicial resources, particularly in Superior Court and with respect to jury trials,” she said.
Kirkopoulos previously pleaded guilty in September 2019 to fraud under $5,000 for writing a forged check and was sentenced to parole and 18 months probation.
The check fraud investigation coincided with the drug investigation, which began after Health Canada informed the RCMP of alleged irregularities in Mt. Cross’s books and inventory. At the same time, police were investigating a check cashing scam at a Hamilton convenience store that led to the fraud conviction.
Guiseppe (Pino) Avignone, who is linked to the Musitano Mob family, was also convicted for the check cashing scheme. He pleaded guilty in May 2021 to fraud over $5,000 and received a 20-month suspended sentence.
Umair Nasim, the only pharmacist charged, pleaded guilty in April 2019 to violating regulations relating to pharmacists under the Controlled Drugs and Substances Act. He was released on conditions and 18 months probation.
Also in 2019, the federal Crown dropped a charge of possession for the purpose of trafficking against a Mississauga woman charged in the case.