COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Katsoulis, 2022 ONCA 902
DATE: 20221228
DOCKET: C66369
Fairburn A.C.J.O., Harvison Young and Favreau JJ.A.
BETWEEN
His Majesty the King
Respondent
and
George Katsoulis
Appellant
Kim Schofield, for the appellant
James Clark, for the respondent
Heard and released orally: December 21, 2022
On appeal from the convictions entered by Justice Markus Koehnen of the Superior Court of Justice on October 11, 2018, and from the sentence imposed on January 10, 2019, with reasons reported at 2019 ONSC 523.
REASONS FOR DECISION
[1] This is an appeal from conviction and sentence. The conviction appeal is predicated on a challenge to the search warrants used to gather all of the evidence upon which the prosecution’s case rested.
[2] The appellant claims that the trial judge erred in refusing to permit the affiant to be cross-examined. In particular, the appellant argues that the trial judge erred by refusing cross-examination on three areas of the Information to Obtain (ITO) that are said to have been misleading regarding the length of time over which certain activities took place.
[3] We see no error in the trial judge’s approach to refusing leave to cross-examine the affiant. He correctly summarized the prevailing jurisprudence as to when cross-examination will be permitted: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343. Further, the trial judge correctly applied that law in the context of this case. We are satisfied that even if the affiant’s use of the word “shortly” and like terms were misleading on a few occasions, the trial judge correctly kept an eye on the overarching issue to be decided, which was whether there was a basis upon which the authorizing judge could have granted the search warrants: R. v. Garofoli, [1990] 2 S.C.R. 1421. The trial judge’s reasons are clear that, even without the impugned terms in the ITO, the issuing justice could have issued the order. Therefore, we see no error in refusing to permit the cross-examination.
[4] Second, the appellant suggests that there are insufficient grounds to support the issuance of the search warrant. Having considered both the ruling and the ITO, we see no error in the trial judge’s conclusion to the contrary. We defer to that conclusion.
[5] Turning to the sentence appeal, the respondent concedes that the trial judge erred when he concluded that the appellant’s activities spanned “at least a couple of months” and treating that conclusion as an aggravating factor. We agree that this conclusion reflects an error.
[6] With that erroneous aggravating factor taken into account, the trial judge imposed a sentence of nine-months custody. That sentence was imposed at a time when conditional sentence orders were not available for this offence. In the highly unusual circumstances of this case, and in light of the fresh evidence we have received on consent, and the many mitigating factors at work, including the appellant’s significant progress, his age, and his lack of criminal record, we are satisfied that the nine-month custodial term of imprisonment should be converted to a conditional sentence order.
[7] The conviction appeal is dismissed. Leave to appeal sentence is allowed and the sentence appeal is allowed. The nine-month custodial term will be set aside, and a nine-month conditional sentence order will be imposed. All ancillary orders will remain untouched.
[8] The parties will make every effort to agree upon the terms of the conditional sentence order and provide a draft order to the court.
“Fairburn A.C.J.O.”
“A. Harvison Young J.A.”
“L. Favreau J.A.”