DATE: 20040415

DOCKET: C32686

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – NICHOLAS KYRIAKOULIAS (Appellant)

BEFORE: WEILER, CRONK and GILLESE JJ.A.

COUNSEL: Nicholas Kyriakoulias the appellant in person

Michael W. Lacy duty counsel for the appellant

Riun Shandler for the respondent

HEARD: March 22, 2004

On appeal from the order of Justice J. B. Shaughnessy of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated July 21, 1999, dismissing an appeal from the conviction entered by Justice Stephen E. Foster of the Ontario Court of Justice dated February 2, 1998, and the sentence imposed by Justice Foster dated March 25, 1998.

E N D O R S E M E N T

[1] The appellant appeals from the judgment of the Summary Conviction Appeal Court Judge (“SCAJ”) dismissing his appeal for lack of merit on July 21, 1999. The appellant was convicted of possession of .22 calibre ammunition while prohibited pursuant to an order under s. 100(2) and contrary to s. 100(12) of the Criminal Code.

[1] The relevant part of s. 100(2), as it then was, reads as follows:

When an offender is convicted or discharged under section 736 of

(a) an offence involving the use, carriage, possession, handling or storage of any firearm or ammunition,

(b) an offence, other than an offence referred to in subsection (1), in the commission of which violence against a person was used, threatened or attempted, or

(c) an offence described in subsection 39(1) or (2) or 48(1) or (2) of the Food and Drugs Act or in subsection 4(1) or (2) or 5(1) of the Narcotic Control Act,

the court that sentences the offender, in addition to any other punishment that may be imposed for the offence, shall consider whether it is desirable, in the interests of the safety of the offender or of any other person, to make an order prohibiting the offender from possessing any firearm or any ammunition or explosive substance and ordering the offender to surrender any firearms acquisition certificate that the offender possesses....

[2] Section 100 (12) states:

Every one who has in his possession any firearm or any ammunition or explosive substance while he is prohibited from doing so by any order made pursuant to this section

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) is guilty of an offence punishable on summary conviction.

[3] On July 22, 1997, the police executed a search warrant on the appellant’s premises on the basis that the appellant was advocating the genocide of Jews contrary to s. 318 of the Criminal Code. In the process of executing this warrant, the police discovered a box of .22 calibre ammunition in a locked gun cabinet in the appellant’s bedroom. The appellant had the key to the cabinet. Because the appellant was subject to an order made pursuant to s. 100(2), the police charged him under s. 100(12) with breaching that order.

[4] The Crown proved the order by filing a certified copy of it with the court as an exhibit. It was discovered that the prohibition order, made in February 1994, did not comply with s. 100(13). The relevant portion of that section states:

(13) An order made pursuant to subsection (2) …shall

(a) specify a reasonable period within which the person against whom the order is made may surrender to a police officer or firearms officer …any ammunition…possessed by that person prior to the making of the order and during which subsection (12) does not apply to that person;

[5] At the close of the Crown’s case at trial, the appellant brought a motion for non‑suit on the basis that the prohibition order was void because it did not comply with s. 100(13). The trial judge noted that this section only speaks to ammunition that is in the accused’s possession at the time the order was made. As a result, he held that the order might be invalid insofar as any ammunition that was lawfully in the accused’s possession at the time the order was made, but it would be valid in respect of ammunition acquired thereafter. The trial judge ruled that in the face of evidence that the ammunition was lawfully in the possession of the accused at the time of the order, he “…wouldn’t be prepared to make a finding of guilt because the section is mandatory and if it is not complied with I think that the order is void insofar as any of that ammunition goes”.

[6] The appellant then testified that he had not seen the ammunition in the cabinet and that he had not opened the cabinet at any time between February 1994 and his arrest in 1997. He said that he had not owned any ammunition since his conviction and the prohibition order. He had a key to the cabinet but the other key had been lost. He further testified that the bullets must have been left over from the previous search that resulted in the prohibition order. The appellant’s mother testified that she placed the ammunition in the cabinet the day before the search warrant was executed.

[7] The trial judge found that the cabinet was in the appellant’s room, that it was locked and that he had the key. The picture taken of the bullets in the cabinet showed that the bullets were very visible. He made reference to the contradiction in the evidence of the mother and her son and rejected the appellant’s explanation for the presence of the ammunition.

[8] The appellant appealed his conviction and his appeal was dismissed for lack of merit. He unsuccessfully sought to raise the issue of the validity of the s. 100 order on his appeal before the SCAJ who does not appear to have understood that this is what the appellant was doing.

[9] Before this court, the appellant raises three issues:

1. Whether the s. 100 order was valid;

2. Whether the Crown proved the actus reus of the offence charged; and

3. Whether the trial judge reversed the burden of proof by requiring the appellant to show that he purchased the ammunition before February 1994.

[10] The weight of judicial authority is that the s. 100 order was valid. In R. v. Avery (1986), 30 C.C.C. (3d) 16 (N.W.T.C.A.), the majority held that the appellant could not defend a charge of violating a prohibition order under s. 100 on the basis that the original order was defective. By challenging the validity of the original order the appellant was mounting a collateral attack on it. Once a court order has been made, it cannot be impeached other than by directly attacking it, such as by way of an appeal, moving to set it aside or by invoking one of the prerogative writs, unless the error is so extreme that the court is compelled to find that the whole matter is a violation of the first principles of justice: Wilson v. The Queen (1983), 9 C.C.C. (3d) 97 at 104 (S.C.C.) per Dickson J., and Tufts v. Thomson, [1929] 1 D.L.R. 896 at 899 (Man. C.A.), followed respectively in Avery, supra, at 26 and 29. The decisions of the Quebec Court of Appeal in R. v. Desjardins (1993), A.Q. No. 2046 and the Alberta Court of Appeal in R. v. Funk, [1995] A.J. No. 623 follow Avery, supra. Accordingly, we would dismiss the first ground of appeal.

[11] The second ground of appeal is, assuming the appellant was in possession of the ammunition at the time of the order, that the Crown did not prove the actus reus of the offence beyond a reasonable doubt because no reasonable time limit for disposing of the ammunition is stated in the order. In the circumstances of this case, the fact that the appellant was found to still be in possession of the ammunition some three years after the date of the prohibition order is sufficient to establish that he is beyond any reasonable time limit for the disposition of ammunition that would have been specified in the prohibition order. For this reason, we would also dismiss the second ground of appeal.

[12] Lastly, the trial judge did not reverse the burden of proof. The trial judge’s misapprehension of the law respecting the validity of the order led him to confer a benefit on the appellant, as it was his understanding that the appellant would have a justification or excuse for possessing the ammunition if he had the ammunition in his possession prior to the prohibition order being made. At this stage of the trial, on the correct interpretation of the law, the Crown had already established a prima facie case that cried out for an explanation from the appellant or he risked being convicted. At its highest, the trial judge placed an evidentiary burden on the appellant to introduce some evidence as to the timing of his possession of the ammunition. In the circumstances, no substantial harm or miscarriage of justice was occasioned.

[13] At the outset of this appeal, the appellant brought a motion to introduce as fresh evidence a letter from the manufacturer of the ammunition to the effect that its date of manufacture was April 24, 1991 and his own affidavit that it is unlikely he would have been able to purchase the ammunition after the date of the prohibition order, “because the lot number would have been sold out within a short period of time.” The proposed fresh evidence is an attempt to challenge the adverse findings of credibility made by the trial judge and dismissed by the SCAJ that the appellant was in possession of the ammunition at the time the prohibition order was made. However, the proposed fresh evidence fails to meet the requirements for the admissibility of fresh evidence: it is evidence that could have been obtained by the appellant prior to his trial through the exercise of due diligence; its reliability is dependent on our acceptance of the appellant’s affidavit; and the interests of justice do not require that it be admitted. The motion to admit fresh evidence is dismissed. We further observe that had the fresh evidence been admissible, it does not establish when, or from whom, the appellant purchased the ammunition.

[14] Finally, the information alleges that the appellant had in his possession ammunition while he was prohibited from doing so, “by reason of an order pursuant to s. 100(1)”, not s. 100 (2) of the Criminal Code. Exercising our power under s. 683(1)(g) of the Criminal Code, we amend the order to read s. 100(2). There is no prejudice to the appellant as a result of the amendment, as all proceedings were conducted on the basis of this being a breach of s. 100(2). We note that no issue was raised before the trial judge or the SCAJ in this regard.

[15] The appellant’s appeal against conviction is dismissed.

“K. M. Weiler J.A.”

“E. A. Cronk J.A.”

“E. E. Gillese J.A.”