ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Boussoulas, 2015 ONSC 1536
COURT FILE NO.: 0206/12
DATE: 20150309
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
PANAGIOTIS BOUSSOULAS
Anna Stanford, for the Crown
J. Randall Barrs, for the accused
HEARD: January 27, 2015
K.L. Campbell J.
Reasons for Sentence
A. Overview
[1] The accused, Panagiotis “Peter” Boussoulas, has been found guilty of four criminal offences, all flowing from his admitted possession of a loaded .45 calibre Colt handgun. This handgun was discovered by the police, stored behind a dresser in the accused’s bedroom, in the early morning hours of December 5, 2011, when the police executed a telewarrant at his home in Woodbridge. The accused now appears for sentencing. The parties seek widely divergent sentencing dispositions.
[2] The Crown argues that the accused should be given a maximum reformatory sentence of two years less a day, followed by a three year term of probation. She contends that such a sentence conveys the necessary elements of general deterrence and denunciation, but also allows for the personal mitigating circumstances of the accused and the rehabilitation of the accused. The Crown is opposed to any potential conditional sentence, suggesting that such a sentence would be inappropriate in the circumstances. The Crown also seeks certain ancillary sentencing orders.
[3] Defence counsel argues, on the other hand, that the accused should be given a suspended sentence and a period of probation, and that no period of incarceration (conditional or actual) is necessary or appropriate. In advancing this position, defence counsel relies upon the advanced age of the accused (he is now 65 years old), his current medical problems, his status as a first offender without any prior criminal record, his forthright explanation for his admitted possession of the loaded firearm, his admission of liability, and his other mitigating personal circumstances.
B. The Personal Circumstances of the Accused
[4] The accused was born in Greece. As I have mentioned, he is currently 65 years of age. He left school at a very young age, with a grade six education, to begin working to help support his family. After later spending five years in the Military, he came to Canada in 1972. He began working in the manufacturing industry, first as a general labourer, but eventually becoming a plant manager. The accused also began informally studying electrical and mechanical engineering.
[5] The accused met his wife in 1976, and they eventually married and had two sons. The accused began his own manufacturing business in 1981. This business flourished and became very financially successful. At one point, his business had over 100 employees. Ultimately, his two sons also came to work in this family business. As the accused indicated to the author of the Pre-Sentence Report, given the success of the business, they all lived a comfortable lifestyle, with a “big home, driving nice cars and being able to afford nice things.”
[6] At one point, while living in Caledon, the accused rented out a home on his property to others who, unbeknownst to the accused, turned the premises into a sophisticated marihuana grow operation. When the police executed a search warrant on those premises in November of 2010, they discovered marihuana plants worth approximately $1.2 million. As a result of his involvement as a potential witness in this case, the accused became the subject of threats of violence and acts of intimidation, in an apparent effort to dissuade him from giving evidence. When the police seemed unable to protect him and his family, the accused admitted that he took matters into his own hands, and “went to Finch and Keele and bought a firearm to protect his family.” It was this firearm that the police discovered in his bedroom during their search of his home on December 5, 2011.
[7] The accused has no criminal record, and has always been a good family man and a hard-working, contributing member of society. While the accused challenged the admissibility of the firearm on a pretrial motion (see R. v. Boussoulas, 2014 ONSC 5542, [2014] O.J. No. 4525), he now fully admits his factual guilt in relation to the charges before the court, and concedes that he “made the wrong decision to buy the gun,” even though he did this in order to protect his family.
[8] The accused was not the intended target of the telewarrant in this case. The police believed that it was one of his sons, Christopher Boussoulas, who was in unlawful possession of firearms. His son describes the accused as a kind man, a great father and provider, and a smart business man.
[9] According to the report from the accused’s family physician, the accused has been in deteriorating health for at least the past five years, and currently suffers from a variety of maladies. More particularly, as confirmed by the report of a cardiovascular and thoracic surgeon who recently examined the accused, Mr. Boussoulas suffers from a small but somewhat painful ventral hernia. This may have to be surgically repaired at some point in the future. The accused has also been diagnosed as having a very small abdominal aortic aneurysm. While the chances of rupture are, at this point, described as “pretty low,” this is a serious condition which requires regular monitoring and evaluation. If the aneurysm grows too large, surgical intervention will probably be required. Further, the accused has a history of hypertension. He also suffers from a general anxiety. Weight loss and cardiac deconditioning are also issues for the accused. However, the accused takes daily medications for some of these conditions, and has remained active.
C. The Governing Sentencing Principles
[10] Pursuant to s. 718 of the Criminal Code, R.S.C. 1985, chap. C-46, the “fundamental purpose” of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives, namely: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[11] Further, according to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[12] As required by s. 718.2 of the Code, in imposing sentence, the court must also take into account a number of principles including: (1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (4) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
D. The Rule Against Multiple Convictions
[13] The rule against multiple convictions for the same crimes prevents an accused from being convicted of multiple offences arising from the same transaction where the elements of the offences are substantially the same. In short, the rule prevents multiple convictions where there is both a factual and legal nexus amongst the various offences. In such circumstances, the accused should only be convicted of the most serious of the offences, and the findings of guilt in relation to the other similar offences should be stayed. See R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, at pp. 744-754; R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480, at pp. 491-503; R. v. Provo, 1989 71 (SCC), [1989] 2 S.C.R. 3, at pp. 12-18; R. v. K.(R.) (2005), 2005 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont.C.A.), at paras. 27-56; R. v. Crevier, 2013 ONSC 2630, [2013] O.J. No. 2257, at paras. 37-46; Mr. Justice E.G. Ewaschuk, Criminal Pleadings & Practice in Canada (Loose-Leaf, 2nd ed.), vol. 2, at § 16:6000.
[14] This rule is applicable in the circumstances of the present case, in that it prevents the accused from being convicted of the offence of the possession of a firearm without being the holder of a licence under which he may lawfully possess it, contrary to s. 91(1) of the Criminal Code. The very similar offence created by s. 95(1) of the Code arose from the same factual transaction, and is clearly the more serious offence, as indicated by its statutory mandatory minimum sentence (which has been declared unconstitutional) and its greater maximum sentence. The finding of guilt in relation to count two of the indictment will, accordingly, be stayed. See R. v. Naples, 2009 BCCA 141, 268 B.C.A.C. 233, at paras. 2-4; R. v. Vidal, 2009 BCSC 1095, [2009] B.C.J. No. 1602, at paras. 1 and 10; R. v. Duhamel, 2013 ONSC 1340, 1 C.R. (7th) 200, at paras. 12 and 52; R. v. Ellis, 2013 ONSC 3092, at paras. 12-14; R. v. Slack, 2015 ONCA 94, [2015] O.J. No. 649, at para. 1. The parties were in agreement in jointly proposing that the finding of guilt on count two be stayed.
[15] The accused will, however, be convicted of all of the three other charges of which he has been found guilty. In my view, the other offences outlined in courts one, three and four of the indictment are all sufficiently different, in terms of their respective legal components, that the rule against multiple convictions for the same delict has no further application. In the result, the accused will be convicted on count one, possession of a loaded prohibited or restricted firearm while not the holder of an authorization, license, or registration certificate, contrary to s. 95(1) of the Criminal Code; count three, possession of a firearm knowing that he was not the holder of a license for the firearm, contrary to s. 92(1) of the Criminal Code; and count four, careless storage of a firearm, contrary to s. 86(1) of the Criminal Code. See R. v. Le, 2014 ONSC 4288, at para. 18.
E. The Aggravating and Mitigating Circumstances of this Case
[16] As outlined by Crown counsel in her submissions, the aggravating circumstances of this case include the fact that the firearm in the possession of the accused was fully loaded. Such firearms are easily concealed and transported and are inherently dangerous weapons capable of quickly causing grievous bodily harm and death. Further, the firearm was carelessly and dangerously stored behind a bureau in the accused’s bedroom. Further, the accused knew full well that purchasing an illegal firearm on “the street” and possessing it in his home, where others resided and worked (at the time the accused had two housekeepers residing in his home), was a serious criminal offence.
[17] At the same time, as defence counsel outlined in his submissions, the many mitigating circumstances in this case, which include all of the following considerations:
• The firearm was hidden by the accused behind the bureau in his bedroom. His wife was not aware of its presence in their home.
• There is no evidence that the accused ever shot the firearm, used it as a weapon or threat against anyone, or ever removed it from its bedroom hiding place. In short, there is no evidence the accused ever used the firearm for any other criminal activities.
• While the firearm was quickly accessible to the accused, he did not try to retrieve the firearm when the police attended at his home for the purpose of executing the telewarrant.
• The firearm has not been traced back to the commission of any earlier criminal offences by others.
• The accused has explained why he was in unlawful possession of this loaded firearm (i.e. for self-defence purposes) and, after his Charter application was dismissed, he fully accepted responsibility for the commission of these crimes and expressed his remorse.
• The accused is an older and mature first offender, with no prior criminal record.
• The Pre-Sentence Report in the present case portrays the accused in a very positive manner, and suggests that the accused “would be a suitable candidate for community supervision.”
• Given all of the personal circumstances of the accused, his continuing family support, his obligations to his wife and children, and his ongoing business, the accused has very favourable prospects for rehabilitation.
• The accused suffers from a variety of ongoing health problems.
F. Firearm Offences – The Governing Range of Sentence
[18] As I have indicated, there is no longer any three year mandatory minimum sentence of imprisonment for the offence of unlawfully possessing a loaded prohibited or restricted firearm while not the holder of an authorization, licence, or registration certificate, pursuant to s. 95(2)(a)(i) of the Criminal Code. In R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, leave granted, appeal heard and judgment reserved, [2014] S.C.C.A. No. 17, the Court of Appeal for Ontario concluded that this mandatory minimum term of imprisonment violated the constitutional right not to be subjected to cruel and unusual treatment or punishment protected by s. 12 of the Charter of Rights, in a manner not saved as a “reasonable limit” under s. 1 of the Charter. This permits, of course, the imposition of a much broader range of potential sentences – theoretically, any disposition between a suspended sentence and a ten year term of imprisonment.
[19] In the circumstances of the present case, however, it is important to appreciate that the accused’s unlawful possession of the loaded .45 calibre Colt handgun was not akin to a mere “regulatory” matter where an otherwise responsible and law-abiding gun owner has inadvertently failed to obtain a proper licence or registration, or possessed a firearm in a location not within the geographic scope of his or her permit. As noted by the court in R. v. Nur, at paras. 49-53, such “regulatory” misconduct would fall at the least serious end of the spectrum of criminality caught in the “wide net” of liability cast by s. 95 of the Criminal Code, as such misconduct “may well pose little, if any, risk to others.”
[20] In the present case, as in the “vast majority” of cases under s. 95 of the Code, the accused was engaged in true criminal activity. Without holding any licence, registration certificate or authorization issued under the Firearms Act, S.C. 1995, c. 39, the accused deliberately attended at a perceived “high-crime” area in Toronto and purchased a loaded prohibited or restricted firearm from some nameless individual on the street, and then stored that loaded handgun behind a bureau in his bedroom in his home. I understand that he undertook this course of action as he had reasonable grounds to believe that his safety may have been in danger, and he decided that he needed a firearm for purposes of protection. The fact remains, however, that he clearly had no legal authorization to have the firearm under any circumstances in any place. Moreover, his unlawful possession of this loaded firearm was a serious criminal offence, and created a real risk to public safety. At a minimum, it placed at risk all of the other individuals who lived inside the home, or periodically visited there. See R. v. Nur, at paras. 51-53, 144; R. v. Browne, 2014 ONSC 4217, at para. 24.
[21] The accused has suggested that he took this course of action at the suggestion of a police officer. The police officer denies making any such suggestion. I do not accept that the accused engaged in this criminal activity at the suggestion of any police officer, but rather find as a fact that he pursued this course of action on his own initiative.
[22] In these circumstances the appropriate range of sentence, even for cases involving a first offender such as the accused, is an upper reformatory sentence or a penitentiary sentence. As the Court of Appeal for Ontario stated in R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 19, “[m]ost s. 95 offences will attract a penitentiary term even for first offenders,” and even “less serious” versions of the crime than are typically committed “will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.” See also R. v. Nur, at paras. 6, 107-109, 206, affirming on this point, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at paras. 41-45, 49-52, 70, 145-149; R. v. Velez-Lau, 2011 ONSC 4805, [2011] O.J. No. 3710, at paras. 9, 20-25; R. v. Husaini, 2013 ONSC 7737, [2013] O.J. No. 5832, at paras. 24-29; R. v. Carrol, 2014 ONSC 2063, [2014] O.J. No. 1749, at paras. 21-28; R. v. Browne, at para. 26.
[23] As the courts have often observed, the criminal possession of handguns remains an all too prevalent threat to the people of Toronto, and others living in the Greater Toronto Area. The possession of these firearms, on occasion, results in serious bodily harm or death. Accordingly, the criminal possession of such illegal firearms must be met with custodial sentences that proportionally reflect the gravity of the offence and appropriately stress the need to denounce and deter such crimes. The public must be adequately protected. See R. v. Danvers (2005), 2005 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont.C.A.), at para. 78; R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233, at para. 14; R. v. Morris, 2011 ONSC 5206, [2011] O.J. No. 3995, at paras. 10, 58, affirmed, 2013 ONCA 223, 305 O.A.C. 47; R. v. Chambers, 2012 ONSC 817, [2012] O.J. No. 462, at paras. 15-17, affirmed, 2013 ONCA 680, 311 O.A.C. 307; R. v. Scarlett, 2013 ONSC 562, [2013] O.J. No. 644, at paras. 13-14; R. v. Peterkin, 2013 ONSC 2116, [2013] O.J. No. 1614, at paras. 22, 24.
G. The Sentence Imposed
[24] Taking into account all of the circumstances of this case, and seeking to fairly apply the governing sentencing principles, in my view the gravity of the firearms offence committed by the accused requires the imposition of a reformatory sentence of 21 months imprisonment. This sentence provides the required degree of denunciation and deterrence and properly protects the public from the dangers of illegal firearms. At the same time, being at the lower fringe of the applicable range of sentence, this sentence recognizes the comparatively less serious nature of this particular firearms offence (given the reason for its commission), the many mitigating circumstances present in this case, and the favourable prospects for rehabilitation possessed by the accused.
[25] In my opinion, it is also in the best rehabilitative interests of the accused that, following his release from the custodial portion of his sentence, he should be subject to the terms of a probation order for a period of two years. This probation order will include the statutory terms outlined in s. 732.1(2) of the Criminal Code, together with the following additional terms:
• The accused shall report to a probation officer within two working days of his release from custody, and thereafter as directed by the probation officer;
• The accused shall abstain from owning, possessing or carrying any weapon;
• The accused shall perform 120 hours of community service, as directed by the probation officer.
H. Other Sentencing Alternatives Rejected
1. The Proposed Suspended Sentence
[26] As I have indicated, defence counsel suggested that, in the circumstances of the present case, the accused should be given a suspended sentence and probation. In my view, the imposition of such a sentence would be entirely unfit. While it might well be a sentence very advantageous to the accused personally, such a sentence would provide no effective measure of denunciation or deterrence, either general or specific, and would entirely fail to provide any measure of protection to the public. Moreover, such a sentence would be clearly inconsistent with the principles and the range of sentence articulated by the Court of Appeal for Ontario in R. v. Nur and R. v. Smickle. Accordingly, I have declined to impose such a sentence.
2. The Prospect of a Conditional Sentence
[27] Defence counsel did not actively seek the imposition of a conditional sentence, but I have considered the possibility of such a disposition nevertheless, as there have been some exceptional firearms-related cases where conditional sentences have been imposed. See, for example R. v. T.A.P., 2014 ONCA 141, [2014] O.J. No. 857.
[28] According to s. 742.1 of the Criminal Code, the court may permit an offender to serve a sentence of imprisonment of less than two years in the community, if it is satisfied that, amongst other things, the service of the sentence in the community “would not endanger the safety of the community” and would be “consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.” I am not satisfied that, in the circumstances of the present case, a conditional sentence meets either of those two important statutory preconditions.
[29] First, as Lamer C.J.C. noted in R. v. Proulx, 2000 SCC 5, [2000] 1 SCR 61, at paras. 63-65, a “prerequisite” or “condition precedent” to the imposition of any conditional sentence” is that the “sentencing judge must be satisfied that having the offender serve the sentence in the community would not endanger its safety. Accordingly, if the sentencing judge is “not satisfied that the safety of the community can be preserved, a conditional sentence must never be imposed.” [emphasis in original]. It is important to recall that, in assessing the potential danger to the community caused by the offender in this context, the court must consider two factors, namely: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of such recidivism. Considering the risk of the accused re-offending in this case and the very grave dangers to the community that would be posed by any such recidivism, I am not satisfied that the safety of the community can be properly preserved if the accused were permitted to serve his term of imprisonment in the community. This conclusion precludes the imposition of a conditional sentencing order. See R. v. Proulx, at paras. 69-74.
[30] Second, I am similarly not satisfied that, in the circumstances of the present case, a conditional sentence “would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2” of the Criminal Code. I appreciate that, as Lamer C.J.C. emphasized in R. v. Proulx, at para. 22, a conditional sentence is properly viewed as a “punitive sanction” that is “capable of achieving the objectives of denunciation and deterrence.” In the circumstances of the present case, however, given the gravity of the firearms offence committed by the accused, I am not satisfied that even a punitive conditional sentence will adequately convey the necessary elements of denunciation and deterrence, and thereby sufficiently protect the public against the dangers posed by the unlawful possession of loaded firearms. In the circumstances of the present case, the important message must be sent to the public that, whatever their reasons, individuals must not unlawfully arm themselves with dangerous loaded firearms, or they will face serious custodial consequences. This conclusion also precludes the imposition of a conditional sentencing order.
I. Ancillary Sentencing Orders
[31] In addition, in my view the following four ancillary sentencing orders are appropriate in the circumstances of this case.
[32] First, pursuant to s. 491(1) of the Criminal Code, I order that the firearm and ammunition that have been seized and detained in this case be forfeited to Her Majesty in right of Ontario and thereafter disposed of as directed by the Attorney General.
[33] Second, pursuant to ss. 109(1)(b) and 109(3) of the Criminal Code, I order that the accused be prohibited from the possession of any firearm, cross-bow, restricted weapon, ammunition, and explosive substance for life.
[34] Third, as the accused has been found guilty of committing a “secondary designated offence,” pursuant to s. 487.051(3) of the Criminal Code, I make an order in Form 5.04, to have samples of bodily substances taken from the accused for purposes of forensic DNA analysis.
[35] Fourth, I order that the accused pay a victim surcharge in the amount of $100 pursuant to s. 737(2)(b)(ii) of the Criminal Code. This was the amount of the surcharge at the time the accused committed these offences.
J. Conclusion
[36] In the result, the finding of guilt in relation to count two of the indictment is stayed. With respect to the three remaining counts of the indictment, the accused is convicted and is sentenced to a reformatory term of actual imprisonment of 21 months duration. Each of these sentences shall run concurrently. Thereafter, the accused will be subject to a two year term of probation on the terms that have been outlined. Further, the various ancillary sentencing orders that I have mentioned will issue.
[37] Out of an abundance of caution, I expressly urge the correctional officials in the provincial reformatory correctional system to take whatever steps are necessary to: (1) carefully monitor the ongoing medical condition of the accused; and (2) to ensure the physical safety of the accused while he is incarcerated.
Kenneth L. Campbell J.
Released: March 9, 2015
CITATION: R. v. Boussoulas, 2015 ONSC 1536
COURT FILE NO.: 0206/12
DATE: 20150309
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
PANAGIOTIS BOUSSOULAS
REASONS FOR SENTENCE
K.L. Campbell J.
Released: March 9, 2015