



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boussoulas, 2018 ONCA 326

DATE: 20180403

DOCKET: M48972 (C59908)

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Panagiotis Boussoulas

Appellant

Randall Barrs, for the appellant

Katie Doherty, for the respondent

Heard: March 28, 2018

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 applicants 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 applicants 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 applicants 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
    applicants 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 courts 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 applicants 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 applicants
    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.


