Court stays drug trafficking charges against former Hamilton pharmacy co-owner over unreasonable delay

A former Hamilton pharmacy co-owner, charged in a drug trafficking scheme that allegedly involved prescription narcotics being diverted to the underworld market, has had his charges stayed due to unreasonable court delay.

Angelo Kirkopoulos was charged by RCMP on May 8, 2018, with multiple counts of drug possession, trafficking and proceeds of crime.

At the time, he was co-owner of Mt. Cross Pharmacy on Concession Street, where RCMP alleged 400,000 doses of prescription drugs such as fentanyl, hydromorphone, oxycodone and amphetamines were diverted.

Last Friday, Superior Court Justice Andrew Goodman stayed charges against Kirkopoulos, finding the Hamilton man's Charter rights were breached due to the amount of time that had elapsed since his arrest and the end of his anticipated trial in January.

The stay is among an unprecedented number of court cases that have been in jeopardy because of a backlogged system, in part due pandemic restrictions.

A judicial stay is an extraordinary remedy and ought to be the last resort, Goodman wrote in his written decision in the case. It is a right that is not to be taken lightly."

After multiple delays, including Kirkopoulos hiring a new defence lawyer, 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 Jan. 9, 2023, and continue until about Jan. 20 - more than four and a half years after he was charged.

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 was 56 and a half months. He subtracted seven months from that total for delays caused by the defence, which do not count toward the Jordan clock, and a further 14 months subtracted due to the exceptional circumstances" of the pandemic. The balance was a delay of 35 and a half months.

Defence lawyers Jaime Stephenson and Cristina Valeri brought the application under section 11(b) of the Charter of Rights and Freedoms. They conceded some delay was caused by the defence when Stephenson took over the case in July 2020, however, counsel was flexible and available in a short span of time," court heard.

According to the 23-page written decision, there were multiple scheduling issues. The trial had been scheduled for January 2022, however, court once again shut down jury trials because of the pandemic and the trial dates were lost. The trial co-ordinator was unable to find new dates until 2023.

Geoff Roy of the Public Prosecution Services of Canada argued that more of the delay ought to be attributed to the defence and the pandemic, calculating the delay to be 26 to 28 months, under the Jordan ceiling. However, Goodman disagreed.

From my review of the transcripts and materials filed, the defence counsel's unavailability, combined with the change in counsel created a delay attributable to the defence and is defence-caused delay, but not to the extent advanced by the Crown," Goodman found.

Mr. Kirkopoulos is very relieved to no longer have the burden of these charges hanging over his head, as it has been for the past four years," Stephenson said on behalf of her client. Although he would have preferred the closure of an acquittal after trial, he is happy to move forward 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 the adjournment last January, with both defence and the Crown juggling schedules.

It is clear that the backlog caused by COVID has overwhelmed the judicial resources available, specifically 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 bogus cheque and was sentenced to a conditional discharge and 18 months of probation.

The cheque fraud investigation coincided with the drug investigation, which began after Health Canada tipped off RCMP about alleged irregularities in Mt. Cross's books and inventory. At the same time, police were investigating a cheque-cashing scam at a Hamilton convenience store that led to the fraud conviction.

Also convicted in relation to the cheque-cashing scheme was Guiseppe (Pino) Avignone, who is tied to the Musitano Mob family. He pleaded guilty in May 2021 to fraud over $5,000 and was handed a 20-month conditional sentence.

Umair Nasim, the sole pharmacist charged, pleaded guilty in April 2019 to contravening regulations relating to pharmacists under the Controlled Drugs and Substances Act. He was given conditional discharge and 18 months of probation.

Also in 2019, the federal Crown withdrew a possession for the purpose of trafficking charge against a Mississauga woman accused in the case.

Nicole O'Reilly is a crime and justice reporter at The Spectator. noreilly@thespec.com