



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information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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the victim shall not be published in any document or broadcast or transmitted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. Hassan, 2020 ONCA 796

DATE:  20201211

DOCKET: C66848

Hoy, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Hassan

Appellant

Mohamed Hassan, acting in person

Matthew Gourlay, as duty counsel

Michael Fawcett, for the respondent

Heard: December 7, 2020 by
video conference

On appeal from the conviction entered by
Justice Jamie K. Trimble of the Superior Court of Justice on December 10, 2018
and the sentence imposed on March 27, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted of assault, sexual assault and forcible
confinement. The conviction for forcible confinement was conditionally stayed,
under the
Kienapple
principle:
R. v. Kienapple
, [1975] 1 S.C.R. 729. He received a
global sentence of five years, less credit of 1198 days for pre-trial custody.

[2]

The appellant abandoned his appeal against sentence. At the conclusion
of the hearing of his appeal, we dismissed his appeal against conviction, with
reasons to follow. These are those reasons.

[3]

It is not in dispute that the appellant attended at the complainants
apartment to look for his keys, which he asserted he had left there earlier in
the day; he was there for approximately 28 minutes; and, during that time, he
looked for his keys and had sexual intercourse with the complainant.

[4]

The issue at trial was whether the intercourse was consensual. The
complainant testified that, after spending some time looking for his keys, the
appellant assaulted her in the her living room and then raped her twice, first
in the bedroom and then in the bathroom. The appellant did not testify. The
complainants credibility was the key issue at trial.

[5]

The trial judge considered the frailties in the complainants evidence
and found her generally credible. In addition to the detailed reasons he
provided for finding her credible, photographs from the police investigation
supported her evidence. They showed damage to her coffee table, consistent with
the assault in the living room she described; a stain on the living room floor,
which appeared to be saliva and blood, consistent with the complainants
evidence that she spat after she was choked and thrown to the floor; and a
broken necklace, consistent with her evidence that her necklace was damaged
during the assault. Based on all the evidence, the trial judge was satisfied
beyond a reasonable doubt of the appellants guilt.

[6]

Duty counsel points to the complainants evidence in chief that the
appellant should not have taken longer than five to ten minutes to look for his
keys, but he took longer. In cross-examination, she agreed with trial counsel
that she had originally told police he took some 20-25 minutes looking for his
keys. Duty counsel says (and Crown concedes) that the trial Crown inaccurately
described the complainants evidence when, in his closing submissions, he said the
appellant took five to ten minutes to look for his keys. Indeed, trial counsel
pointed this out to the trial judge in his closing submissions.

[7]

Essentially, duty counsel repeats trial counsels argument: The
complainant testified that the appellant spent 20-25 minutes looking for his
keys, when, based on the timeline, he must have spent a shorter time doing so,
and that this goes to the complainants credibility. Duty counsel says that the
trial judge failed to address this assault on her credibility in his reasons.
He submits that this may be because the trial judge relied on the trial Crowns
misdescription of the complainants evidence. If so, he argues, the trial judge
misapprehended her evidence. Alternatively, he argues that the trial judges
reasons are insufficient because they do not make clear that the trial judge
did not rely on trial counsels misdescription of the complainants evidence in
concluding that the Crown had proven its case beyond a reasonable doubt. He
says this court should order a new trial.

[8]

We reject these arguments.

[9]

In assessing the complainants credibility, the trial judge specifically
referred to trial counsels argument that the appellant could not have spent 20-25
minutes looking for his keys and that this went to the complainants
credibility. In his lengthy explanation as to why he found the complainant
generally credible, the trial judge observed that [t]he call logs and text
logs, generally, support her version of events. In making his finding, he
noted that [w]hile her memory of specific times in often incorrect, it is not
incorrect by any order of magnitude.

[10]

Duty
counsel properly conceded that the time the appellant was in the complainants
apartment  28 minutes  was sufficient for the appellant to have looked for
his keys, assaulted, and sexually assaulted the complainant.

[11]

Given
the undisputed facts and this concession, the complainants inconsistency on
the length of time the appellant spent looking for his keys goes only to the
reliability of her time estimates  something that was not a material issue at
trial  not her credibility, if it goes to anything at all. The trial judge had
ample evidence corroborating the complainants version of events in the
material respects, which he accepted.

[12]

Accordingly, the appeal was dismissed.

Alexandra Hoy J.A.

Gary Trotter J.A.

David M. Paciocco J.A.


