Court of Appeal for Ontario

Date: 2018-03-06 Docket: C59908

Judges: Strathy C.J.O., Simmons and Hourigan JJ.A.

Between

Her Majesty the Queen Respondent

and

Panagiotis Boussoulas Applicant/Appellant

Counsel

J. Randall Barrs, for the appellant

Alexander V. Hrybinsky, for the respondent

Heard and released orally: March 1, 2018

On appeal from: The conviction entered on September 25, 2014 and the sentence imposed on January 27, 2015 by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant was convicted of three firearms-related offences, all flowing from his admitted possession of a loaded .45 calibre Colt handgun.

[2] A telewarrant was issued for the appellant's home. The target of the warrant was the appellant's son. The search was executed by "dynamic entry" in the middle of the night. A handgun was discovered behind a dresser in the appellant's bedroom.

[3] In overview, the appellant argues on appeal that the trial judge erred in his application of the "step six" procedure described in R. v. Garofoli, [1990] 2 S.C.R. 1421, and that the search warrant should not have been upheld. He submits that the manner of the search was unreasonable. Given the alleged violations of his s. 8 Charter rights, he asserts that the fruits of the search (the handgun) should be excluded under s. 24(2) of the Charter.

[4] The appellant also seeks leave to appeal his sentence of 21 months' imprisonment and 2 years' probation, arguing that the trial judge failed to give proper weight to mitigating factors.

[5] The appellant raises three grounds of appeal. First, that the application judge incorrectly applied the "step six" Garofoli procedure, both in the allegedly insufficient summary provided and in the review undertaken. Second, he erred in concluding that the dynamic nighttime entry was reasonable in the circumstances. Third, the evidence should have been excluded under s. 24(2) of the Charter.

[6] We would not give effect to any of these grounds of appeal. We see no error with respect to the summary of the redacted portions of the ITO provided by the application judge. In our view, the application judge properly focused on the question of whether the judicial summary contains sufficient information about the nature of the redacted information to allow for meaningful challenge.

[7] Contrary to the appellant's submission, in reviewing the adequacy of the ITO the application judge was entitled to rely on the redacted material, the nature of which was contained in the summary: R. v. Rocha, 2018 ONCA 84, at paras. 17-18.

[8] With respect to the impact of the dynamic entry, the appellant has identified no error in principle in the application judge's conclusion that the execution of the search warrant was not a violation of the appellant's s. 8 Charter rights. Given this conclusion, it is unnecessary to consider the effect of s. 24(2).

[9] With respect to the sentence appeal, at para. 9 of his reasons the sentencing judge addressed the health issues raised by the appellant. The proposed fresh evidence does not establish any change in circumstances. The appellant has demonstrated no error in principle with respect to the sentence, which is well within the range for offences related to the possession of a loaded handgun.

[10] The appeal and the sentence appeal are therefore dismissed.

"G.R. Strathy C.J.O."

"Janet Simmons J.A."

"C.W. Hourigan J.A."