



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Mohamed, 2015 ONCA 335

DATE: 20150512

DOCKET: C56679

Watt, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sheik Mohamed

Appellant

Stephen Whitzman, for the appellant

Mary-Ellen Hurman, for the respondent

Heard and released orally: April 30, 2015

On appeal from the decision of Justice Faye E. McWatt of
    the Superior Court of Justice, sitting as a Summary Conviction Appeal Court on
    February 15, 2013, dismissing the appeal from the conviction entered on June
    24, 2012 by Justice Bruno Cavion of the Ontario Court of Justice.

ENDORSEMENT

[1]

Sheik Mohamed was convicted of operation of a motor vehicle with a
    prohibited blood alcohol level after a trial before a judge of the Ontario
    Court of Justice. The Crown proceeded by summary conviction.

[2]

Mr. Mohamed appealed his conviction the Superior Court of Justice. A
    judge of that court dismissed his appeal and affirmed the conviction.

[3]

Mr. Mohamed now seeks leave to appeal to this court under s. 839(1)(a)
    of the
Criminal Code
. The application asserts essentially one ground
    of appeal. The ground is said to raise a question of law alone.

[4]

The applicant contests the correctness of the trial courts finding,
    affirmed on the summary conviction appeal, that the officers demand that the
    applicant provide a sample of breath into an alcohol screening device was made
    forthwith, as required by s. 254(2)(b) of the
Criminal Code
.

[5]

It is well settled that leave to appeal to this court under s. 839(1)(a)
    should be granted sparingly. Two key variables inform the leave decision, for
    which no bright line rule exists. Those variables are:


i.

the significance of the legal issue or issues raised to the general
    administration of criminal justice; and


ii.

the merits of the proposed ground or grounds of appeal.

See
R. v. R.(R.)
(2008), 234 C.C.C. (3d) 463,
    at para. 37.

[6]

Where the issues raised have significance to the administration of
    justice beyond the specific case in which they arise, leave may be granted,
    even if the merits of the appeal are not particularly strong. On the other
    hand, where the merits appear very strong, leave to appeal may be granted, even
    if the issues to be argued are of no general importance, especially where the
    convictions are serious and the applicant is facing a significant deprivation
    of his or her liberty:
R.(R.)
, at para. 37.

[7]

The proposed ground of appeal here is the subject of well-established
    principles of law. Those principles are not in need of restatement or
    reaffirmation. The controlling precedent is recent, and was advanced as
    applicable in the submissions of counsel below and noted in the reasons of the
    summary conviction appeal court judge. The application of the principles that
    ascribe meaning to the term forthwith in s. 254(2)(b), to the circumstances
    of any case, involve a fact-specific inquiry that, in all likelihood, does not
    raise a question of law alone. Even if it did, such a question does not rise to
    the level required by
R.(R.)
.

[8]

For these reasons, leave to appeal is refused.

David
    Watt J.A.

S.E.
    Pepall J.A.

M.L.
    Benotto J.A.


