



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. El-Kasir, 2017 ONCA 531

DATE: 20170623

DOCKET: M47587, M47698 (M47588) & M47700 (M47589)

Brown J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Fathy El-Kasir

Applicant

Fathy El-Kasir, applicant

Catherine M. Gleason-Mercier, duty counsel

G. Karen Papadopoulos, for the respondent

Heard: June 21, 2016

REASONS FOR DECISION

Overview

[1]

The
    applicant, Mr. Fathy El-Kasir, has brought three motions to extend the time to
    seek leave to appeal from three dismissals by lower appeal courts of his
    convictions on three charges.

Governing Principles

[2]

The
    authority to grant or refuse an extension of time is discretionary. The factors
    taken into account in considering a request for an extension of time were
    summarized by this court in
R. v. Ansari
, 2015 ONCA 891, 128 O.R.
    (3d) 511, at paras. 21 to 27.

Motion M47587

[3]

The
    applicant was convicted on September 29, 1993 by His Honour Judge L.T.G. Collins
    of the Ontario Court (Provincial Division) of assaulting a police officer
    contrary to s. 270(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46. The
    applicant was fined $400. By notice of appeal dated October 28, 1993, the
    applicant appealed to the summary conviction appeal court. He argued the trial
    judge erred in finding the assault was committed, or was intentional, and the
    officer was in the execution of his duty at the time of the assault.

[4]

The
    appeal was dismissed by Justice Murphy of the Ontario Court (General Division)
    on November 24, 1994. Unfortunately, the applicant did not include in his
    motion record a copy of the appeal judges endorsement. His notice of appeal
    states the appeal judge did not give reasons.

[5]

Although
    the applicant did not file an affidavit on this motion explaining why he has
    waited almost 23 years to seek leave to appeal, a September 29, 2014 affidavit
    filed in support of motion M47588 offers an explanation. In it, the applicant
    states that when he attempted to volunteer at the New Canadian Centre, the
    background check of his criminal record disclosed the 1993 conviction. The
    applicant deposed that he did not intend to apply for a pardon. Instead, he had
    decided to commence a proceeding to quash those convictions by the Appellate
    Court as I believe I did nothing wrong to be ashamed of.

[6]

Given
    that evidence, I am not satisfied the justice of the case requires granting an
    extension of time. The applicant has not demonstrated that he formed a
bona fide
intention to seek leave to appeal the 1994 dismissal of his summary conviction appeal
    within the time prescribed for filing the applicable notice. To the contrary,
    his affidavit discloses that for 20 years he had no intention of appealing his
    conviction. The applicants delay in seeking leave to appeal has been
    inordinate and unjustifiable.

[7]

The
    applicants motion for an extension of time to seek leave to appeal the order
    of Murphy J. dated November 24, 1994 is dismissed.

Motions M47698 (M47588) and M47700 (M47589)

[8]

The
    remaining two motions for extensions for time for leave to appeal involve
    offences under the
Provincial
    Offences Act
, R.S.O. 1990, c. P. 33
.

[9]

By
    information dated May 26, 2014, the applicant was charged with failure to leave
    premises when directed contrary to the
Trespass to Property Act
, R.S.O. 1990, c.
    T. 21, s. 2(1)(b)
.

[10]

On
    July 30, 2015, the applicant was convicted by Justice of the Peace J. Mariasine.
    The court found the applicant had refused the request of security officers at
    the Peterborough courthouse to place certain objects in a bin for scanning and
    refused to leave the courthouse when asked to do so. The applicant was fined
    $250 and placed on probation for one year.

[11]

The
    applicant appealed his conviction and sentence to the Ontario Court of Justice.

[12]

The
    second offence involved a November 27, 2014 Certificate of Offence under the
Provincial Offences Act
issued
    to the applicant for entering into premises when entry was prohibited contrary
    to s. 2(1)(a)(i) of the
Trespass to Property Act
. The fine was set at $65.

[13]

On
    July 2, 2015, the applicant was convicted by Justice of the Peace J. Moffatt.
    The complainant, a paralegal, represented some tenants in a building of which
    the applicant was the landlord. The complainant had given notice to the
    applicant that he was not welcome at her premises and should serve any
    documents regarding her clients matters by mail or courier. Documents from the
    applicant were left in the complainants mailbox at her premises. The applicant
    denied entering her property to do so. The court did not accept his explanation
    of events. The court found the applicant had entered the complainants property
    on November 20, 2014 and left documents in her mailbox. In reaching this
    finding, the court relied on a November 22, 2014 email sent by the applicant to
    the complainant in which he stated he had left documents in her mailbox. The
    court imposed a fine of $50.

[14]

The
    applicant appealed this conviction and fine to the Ontario Court of Justice.

[15]

Both
    appeals were heard and dismissed by Justice E. Rosenberg on November 23, 2016.

[16]

In
    respect of the failure to leave premises conviction, the appeal judge concluded
    the trial judge made no error and there was no legitimate basis for the
    constitutional application made by the applicant in the court below.

[17]

In
    respect of the conviction for entry when prohibited, the appeal judge found the
    trial judge applied the correct standard of proof, considered all possible
    defences, and reached a reasonable verdict that was supported by the evidence.

[18]

The
    applicant did not file motions seeking leave to appeal those dismissals within
    the 30 days required by the rules. Instead, he waited over three months, until
    March 6, 2017, to file his notices of motion. These motions for extensions of
    time were filed a month later.

[19]

The
    applicant has not filed an affidavit explaining his delay. However, in his
    notices of motion for leave to appeal, he states he had been sick since the
    unexpected judgment on November 23, 2016. The judgment derived [
sic
] me
    to the state of sickness and isolation.

[20]

I
    am not satisfied that such bald statements, without more, constitute an
    adequate explanation for the applicants delay.

[21]

More
    importantly, the applicants proposed appeals do not meet the high threshold
    for granting leave to appeal under ss. 131 and 139 of the
Provincial
    Offences Act
. In
Antorisa
    Investments Ltd. v. Vaughan (City)
, 2012 ONCA 586, 1 M.P.L.R.
    (5th) 240, Gillese J.A. stated, at para. 8:

The law on s. 131 is well-settled: see, for example,

R. v. Castonguay Blasting Ltd.
,

2011 ONCA 292
    (in Chambers)
, at paras. 14-15
. In
    order for the Applicants to obtain leave, they must establish: (i) special
    grounds; (ii) on a question of law alone; and (iii) that, in the particular
    circumstances of this case, it is essential in the public interest or for the
    due administration of justice that leave be granted.  What constitutes
    special grounds in s. 131(1) is informed by the requirement in s. 131(2) that
    it is essential in the public interest or for the due administration of justice
    that leave be granted.  The threshold for granting leave is very
    high.

[22]

The
    same considerations apply in respect of appeals under s. 139 of the
Provincial Offences Act
.

[23]

The
    applicants proposed appeals do not involve questions of law alone. His notices
    of leave to appeal make clear his main complaint lies with the findings of fact
    made by the trial judges. I am not satisfied there is any merit in the
    applicants leave motions for which he seeks extensions of time:
Ansari
, at
    para. 22.

[24]

Accordingly,
    I dismiss both motions for extensions of time to seek leave to appeal the
    orders of Rosenberg J. dated November 23, 2016 dismissing his appeals of the
    two convictions under the
Provincial Offences Act.

Summary of Dispositions

[25]

For
    the reasons set out above, I dismiss the applicants motions M47587, M47698 and
    M47700 seeking extensions of time to seek leave to appeal.

David
    Brown J.A.


