



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C.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    the victim shall not be published in any document or broadcast or transmitted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 231

DATE:  20210409

DOCKET: (M52328) C68857

Hoy
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

(Responding
    Party)

and

Mohanned
    Muawia Khalil Mohammed

Applicant

(Moving
    Party)

Ines Gavran, for
    the applicant

Erica Whitford, for the respondent

Heard: April 9, 2021 by video conference

ENDORSEMENT

[1]

The applicant seeks an order pursuant to s. 684
    of the
Criminal Code
, R.S.C. 1985, c. C-46, appointing counsel to
    assist him with his application for leave to appeal, and if leave be granted, his
    appeal. The Crown opposes. Moreover, the Crown asks that I decide whether the
    applicant should be granted leave at this time and refuse leave.

[2]

The applicants trial in the Ontario Court of
    Justice proceeded by way of summary conviction proceeding. After a five-day
    trial, the applicant was convicted of sexual assault and sentenced to 18
    months custody. He appealed, arguing that the trial judge erred in his
    application of
R. v. W.(D.)
, [1991] 1 S.C.R. 742, and provided
    insufficient reasons. The summary conviction appeal court judge dismissed his
    appeal.

[3]

The applicant has served the custodial portion
    of his sentence and is currently on parole. The conviction has significant
    immigration consequences to the applicant, and he wishes to pursue a second
    appeal to this court.

[4]

The applicant was represented by counsel of his
    choice before the trial judge and the summary conviction appeal court judge.
    However, he has not worked since being released on parole. His only income
    consists of Ontario Works and government pandemic relief in the form of CERB
    payments, which barely cover his living expenses. His evidence is that he has
    no other funds or assets.

[5]

Legal Aid Ontario refused his application for
    legal aid coverage for an appeal to this court on the basis that his appeal did
    not have sufficient merit to justify giving him a legal aid certificate. Its
    refusal of coverage was upheld on appeal to the Provincial Office.

[6]

Section 684(1) provides that a judge of this
    court may assign counsel to act on behalf of an accused where, in the opinion
    of the judge, it appears desirable in the interests of justice that the accused
    should have legal assistance and where it appears that the accused has not
    sufficient means to obtain that assistance. An order for government-funded counsel
    is exceptional relief:
R. v. Staples
, 2016 ONCA 362, 352 O.A.C. 392,
    at para. 40, reconsideration allowed,
R. v. Staples
, 2017 ONCA 138.

[7]

The applicant has satisfied me that he does not
    have sufficient means to obtain legal assistance on his application for leave
    to appeal and, if leave be granted, his appeal.

[8]

However, I am not persuaded that it is in the
    interests of justice that I order legal assistance.

[9]

Leave to appeal to this court from the summary
    conviction appeal courts decision is required and an appeal may only be taken
    on any ground that involves a question of law alone: s. 839(1) of the
Criminal
    Code
. Leave to appeal is granted sparingly:
R. v. R.R.
, 2008 ONCA
    497, 90 O.R. (3d) 641, at para. 37. There are two circumstances in which leave
    is granted:
R.R.
at paras. 32, 37:

1.

When the merits of the proposed questions of law
    are arguable, even if not strong, and the proposed question of law has
    significance to the administration of justice that goes beyond the particular
    case; or

2.

When there appears to be a clear error even if
    it cannot be said that the error has significance to the administration of
    justice beyond the particular case, especially if the convictions in issue are
    serious and the applicant is facing a significant deprivation of his liberty.

[10]

The trial judge rejected and was not left in
    reasonable doubt by the applicants evidence that no sexual contact whatsoever
    occurred when the complainant was at his apartment. The complainant testified
    that she had only one drink before going to the applicants apartment, but
    became very intoxicated and there were gaps in her memory. However, she was
    clear that that the applicant had sexual intercourse with her, without her
    consent. The trial judge accepted the complainants evidence.

[11]

Counsel for the applicant says this appeal
    raises questions of law that have significance to the administration of justice
    that go beyond this case. In particular, (1) how should a trial judge assess
    the credibility of a complainant who says she was intoxicated to the point of
    having gaps in her memory after only one drink, and (2) how should the
    reliability of the evidence of a complainant who is intoxicated be assessed.

[12]

The reasons of the summary conviction appeal
    court judge, the notice of appeal to this court, and the opinion letter to
    Legal Aid Ontario by the applicants trial and summary conviction appeal court
    counsel provide a framework for the  grounds on which the applicant will seek
    leave and, if leave be granted, appeal. Further, the applicant has a university
    education.

[13]

I am of the view that the issues that the
    applicant seeks leave to pursue on this second appeal are relatively
    straightforward and that a panel of this court can fairly and properly assess
    whether the proposed appeal satisfies the test for leave, and, if leave be
    granted, can fairly and properly deal with the appeal without the assignment of
    counsel to act on his behalf.

[14]

I reject the Crowns request that I decide, and
    refuse, the applicants leave application at this time. The Crown correctly
    notes that s. 839(1) of the
Criminal Code
provides that an appeal to
    this court of a summary conviction matter may be taken on any ground that
    involves a question of law alone with the leave of this court or a judge
    thereof. However, r. 7.3.6(9) of the courts Criminal Appeals Practice
    Direction, concerning the procedure on applications for leave to appeal in
    summary conviction appeals, provides as follows:

Within 30 days of receipt of all
    materials relating to the appeal, the materials shall be forwarded to a panel
    of the court assigned to hear criminal appeals during the week the materials
    are forwarded. The panel shall decide whether to grant or to refuse leave to
    appeal based on the written material without the attendance of counsel and
    cause the parties to be notified of their decision. The court will generally
    not provide reasons granting or refusing leave to appeal.

[15]

I am not persuaded that it is appropriate to
    depart from the courts practice specified in the Criminal Appeals Practice
    Direction. The applicant sought the appointment of counsel to assist him with
    his application for leave and, if leave be granted, his appeal. He must have a
    full opportunity to prepare and put before the court the materials relating to
    his appeal.

[16]

Accordingly, both the applicants application
    for an order pursuant to s. 684 and the Crowns request that I decide the
    question of leave at this time are dismissed.

Alexandra
    Hoy J.A.


