Court of Appeal for Ontario

Date: 2018-04-03 Docket: M48972 (C59908) Judge: Watt J.A. (In Chambers)

Between

Her Majesty the Queen Respondent

and

Panagiotis Boussoulas Appellant

Counsel

Randall Barrs, for the appellant Katie Doherty, for the respondent

Heard: March 28, 2018

Application for Judicial Interim Release

Application for judicial interim release pending determination of motion for a leave to appeal to the Supreme Court of Canada.

Endorsement

[1] Panagiotis Boussoulas, whom I will describe as the applicant, seeks his release from custody pending a determination of his motion for leave to appeal his sentence to the Supreme Court of Canada under s. 40 of the Supreme Court Act.

[2] The respondent opposes the application.

The Background

[3] After a trial before a judge of the Superior Court of Justice sitting without a jury, the applicant was found guilty of four indictable offences in connection with his unauthorized possession of a .45 calibre handgun. The firearm was loaded. One of the counts was stayed. Convictions were entered on the other three.

[4] The trial judge, confronted with widely divergent submissions as to a fit sentence, ordered that the applicant serve a term of imprisonment of 21 months to be followed by a period of probation of two years. Though not invited by defence counsel to do so, the trial judge also considered, but rejected a conditional sentence.

[5] On March 6, 2018 a panel of this court dismissed the applicant's appeals from conviction and sentence.

[6] By Notice of Application for Leave to Appeal, dated March 12, 2018, the applicant seeks leave to appeal to the Supreme Court of Canada from the sentence imposed by the trial judge and affirmed by this court.

[7] The Criminal Code provides the appellant with no right of appeal to the Supreme Court against a sentence imposed by a trial court and affirmed or varied by a provincial or territorial court of appeal. Thus, the applicant invokes s. 40(1) of the Supreme Court Act to seek leave to appeal his sentence on three grounds. I would consolidate and paraphrase those grounds as claims that the court of appeal erred:

i. in failing to hold that the trial judge erred in giving inadequate weight to mitigating factors such as the purpose for which the applicant possessed the firearm, the applicant's health and his position as a Crown witness;

ii. in failing to consider as a change of circumstances and thus give proper effect to fresh evidence about the applicant's deteriorating health as a mitigating factor on sentence; and

iii. in failing to hold that the trial judge erred in failing to impose a conditional sentence.

[8] The applicant has not perfected his application for leave to appeal. The only filing in the Supreme Court of Canada is the Notice of Application for Leave to Appeal.

[9] The applicant was arrested in December, 2011. He was released from custody on a recognizance with sureties and subject to conditions shortly thereafter. He has remained out of custody until February 28, 2018 when he was required to surrender by the terms of his release order granted by a judge of this court.

Discussion

[10] The applicant contends that he has satisfied the requirements of s. 679(3) of the Criminal Code. In other words, he contends that he has established on a balance of probabilities:

i. that the application for leave to appeal is not frivolous;

ii. that he will surrender himself into custody in accordance with the terms of any release order; and

iii. that his detention is not necessary in the public interest.

[11] The respondent opposes release on two bases, that is to say, that the applicant has failed to demonstrate that his application for leave to appeal is not frivolous and that his detention is not necessary in the public interest.

[12] To take first, the issue of whether the application for leave to appeal is not frivolous.

[13] The applicant's gateway to the Supreme Court of Canada is not the Criminal Code. For that statute provides no basis upon which a person convicted of a criminal offence can appeal or seek leave to appeal to that court from a sentence imposed, affirmed or varied by a provincial or territorial court of appeal.

[14] To obtain leave to appeal to the Supreme Court of Canada from a sentence imposed, varied or affirmed by a provincial or territorial court of appeal, an applicant must demonstrate, to the satisfaction of the court, that the question raised, by reason of its public importance or the importance of any issue of law or of mixed law and fact involved in that question, is one that ought to be decided by that court or that it is, for any other reason, of such a nature or significance as to warrant a decision by that court.

[15] No one can gainsay that the Supreme Court of Canada has jurisdiction under s. 40(1) of the Supreme Court Act to assess the fitness, that is to say, the quantum of a sentence. But it is equally clear that, as a matter of policy, the Court has decided, as a rule of its own making, that it should not do so. It deals with principle, not fitness: R. v. Gardiner (1982), 68 C.C.C (2d) 477 (S.C.C.), at pp. 506-507. It is a rule that endures today, one that is amply supported by the court's jurisprudence on sentencing issues.

[16] A review of the grounds of appeal upon which the applicant proposes that leave to appeal be granted, reveals that there is much about fitness but little else.

[17] Of the six grounds on which the applicant proposes that leave to appeal be granted, fully half simply recite trial events. The trial judge received a pre-sentence report. The trial judge listed several mitigating factors, but did not accord them sufficient weight. A complaint that the trial judge did not impose a conditional sentence of imprisonment, without mention that trial counsel (also counsel on the motion for leave to appeal) did not seek such a disposition or that the trial judge nonetheless considered but rejected its availability.

[18] The three proposed grounds that allege error by this court all have the unmistakable trappings of complaints made in intermediate courts of appeal about the fitness of sentence. The weight assigned to mitigating factors. The quantum of sentence imposed. The conclusions drawn about the stability of the applicant's medical condition.

[19] From time to time, members of this court have observed that it is very difficult for any judge of this court to determine whether an application for leave to appeal to the Supreme Court of Canada is frivolous. This is especially so in cases governed exclusively by Criminal Code provisions. But it is perhaps less so in cases such as this where the grant or refusal of leave falls to be decided under s. 40(1) of the Supreme Court Act and the decision being appealed has to do with an assessment of the fitness or quantum of sentence.

[20] In my respectful view the grounds of appeal on which leave is sought do not satisfy the standard required by s. 679(3) (a) of the Criminal Code.

[21] Turning to the public interest in s. 679(3) (c). This a case in which the applicant's offences were committed over six years ago, his convictions recorded and sentence imposed over three years ago. Throughout this period, except for the short time that has followed dismissal of his appeal by this court, he has remained out of custody.

[22] The public interest criterion in s. 679(3) (c) of the Criminal Code encompasses the principles of reviewability and enforceability of court orders, including the enforcement of sentences imposed after trial. Where an application for release from custody post-conviction engages consideration of the public interest criterion of s. 679(3) (c), a court must determine whether the principle of enforceability should yield to the principle of reviewability. At this point, where the conviction and sentence have been affirmed without further right of appeal, enforceability should prevail, especially in light of the tenuous nature of the grounds of appeal proposed in the motion for leave to appeal. See, R. v. Drabinsky, 2011 ONCA 647, at paras 10-11.

Disposition

[23] The application for release pending determination of the application for leave to appeal to the Supreme Court of Canada is dismissed without prejudice to a further application should leave to appeal to the Supreme Court of Canada be granted.

"David Watt J.A."