



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohammed, 2021 ONCA 301

DATE: 20210506

DOCKET: C68857

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohanned Muawia Khalil Mohammed

Appellant

Mohanned Muawia Khalil Mohammed, acting in
    person

Nicole Rivers, for the respondent

Heard and released orally: May 3, 2021 by videoconference

On appeal from the decision of Justice B.P. OMarra of
    the Superior Court of Justice dated June 25, 2020, dismissing an appeal from
    the conviction entered on May 6, 2019, and from the sentence imposed on July 5,
    2019, by Justice Ruin Shandler of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual
    assault and sentenced to 18 months imprisonment, followed by three years
    probation.

[2]

At trial, he testified in his defence.
    The trial judge made findings of fact contrary to his evidence and explained
    why the appellants evidence did not leave him with a reasonable doubt. He also
    held that on the evidence of the complainant, which he did accept, the appellant
    was guilty beyond a reasonable doubt.

[3]

The appellant appealed to the Superior
    Court of Justice, primarily alleging errors regarding the trial judges
    application of
R. v. W.(D.)
, [1991] 1
    S.C.R. 742, and insufficient reasons. The summary appeals court judge found
    that the trial judge properly applied the
W.(D.)
test. Further, he found that the trial judges reasons
    sufficiently articulated how credibility concerns and contradictory evidence
    were resolved. Accordingly, the summary appeals court judge dismissed the
    appeal.

[4]

The appellant seeks leave to appeal to
    this court. He submits that (1) the summary appeals court judge erred in giving
    deference to credibility and reliability findings, despite errors made by the
    trial judge; and (2) the summary appeals court judge erred in concluding that
    the trial judge provided sufficient reasons, despite not resolving all the live
    issues in the case.

[5]

A second appeal in summary conviction
    proceedings is the exception, not the rule. Leave to appeal should not be
    granted merely because an issue of law alone is raised. Access to the Court of
    Appeal, for a second appeal, should be limited to those cases in which the
    applicant can demonstrate some exceptional circumstance justifying the further
    appeal. There is no single litmus test that can identify all the cases in which
    leave should be granted. There are, however, two key variables, being the
    significance of the legal issues raised to the general administration of
    criminal justice, and the merits of the proposed grounds of appeal:
R.
    v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641, at
    paras. 37-38.

[6]

On the one hand, if the issues have
    significance to the administration of justice beyond the particular case, then
    leave to appeal may be granted even if the merits are not particularly strong,
    although the grounds must be at least arguable. On the other hand, where the
    merits of the appeal are very strong, leave to appeal may be granted even if
    the issues have no general importance, especially if the convictions in issue
    are serious, and the application is facing a significant deprivation of his or
    her liberty: see
R.R.
, at paras.
    37-38.

[7]

We are not satisfied that the appellant
    has met the test for leave to appeal. The grounds of appeal are weak. The summary
    appeals court judge carefully considered and rejected the same arguments that
    the appellant seeks to argue before this court. We see no error in that
    analysis. In addition, this case does not raise issues that impact the general
    administration of criminal justice.

[8]

The application for leave to appeal is
    dismissed.

Alexandra Hoy J.A.

C.W. Hourigan J.A.

B. Zarnett J.A.


