



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. Sazal, 2020 ONCA 800

DATE:  20201211

DOCKET: M51985 & M51988 (C66796)

Brown J.A.
    (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

A.B. Sazal

Applicant
    (Appellant)

Jessica Zita
,
    for the
applicant

Samuel Greene,
for
    the respondent

Heard: December 9, 2020 by video conference

REASONS
    FOR DECISION

[1]

The appellant, A.B. Sazal, brings two
    applications: one for bail pending appeal; the other for the appointment of
    counsel pursuant to
Criminal Code
s. 684. The Crown opposes both applications.

Bail application

[2]

The appellant was convicted on February 8, 2019
    of two counts of sexual assault and two counts of sexual interference. At the
    time of the offences, the complainant was 11 years old. Upon conviction,
    pre-trial bail was revoked. On March 18, 2019 the appellant was sentenced to a
    custodial sentence of 4.5 years, with credit for pre-sentence custody. The
    appellant has remained in the Bath Institution since the time of his
    conviction.

[3]

The appellant filed an inmate notice of appeal on
    April 9, 2019. Efforts to obtain Legal Aid funding for an appeal were
    unsuccessful.

[4]

The appellant is not a Canadian citizen nor is
    he a permanent resident. During the hearing, there was a discussion about the
    second ground  namely, whether the appellant would surrender himself into
    custody in accordance with the terms of the order:
Criminal Code
, s.
    679(3)(b). Crown counsel provided some information about the appellants
    application for refugee status that was contained in a draft Inmate Appeal Book
    prepared by the Crown. Appellants counsel was not aware of the information.
    Crown counsel undertook to provide appellants counsel with a copy of the draft
    Inmate Appeal Book.

[5]

Given the information disclosed by Crown
    counsel, I think the fairest way to proceed is to adjourn the application for
    bail pending appeal to allow appellants counsel an opportunity to review the
    information. Accordingly, the application is adjourned; I am not seized of the
    matter.

Section 684 application

[6]

The Crown concedes that the appellant does not
    have the means to privately hire counsel and, in light of his inability to
    communicate in English, he would struggle to effectively advance an appeal
    himself. However, the Crown submits that the appellant has not demonstrated
    that there is an arguable ground of appeal, which the Crown contends is a
    threshold consideration on a s. 684 application.

[7]

The governing principle on a s. 684 application
    is that set out in the section: a court may appoint counsel where it appears
    desirable in the interests of justice that the accused should have legal
    assistance and he has not sufficient means to obtain that assistance.

[8]

I appreciate that this court in
R. v.
    Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.) stated, at para. 22, that
    the inquiry under s. 684 should begin with assessing the merits of the appeal.
    But the governing principle remains, nonetheless, whether it appears desirable
    in the interests of justice that the accused should have legal assistance.

[9]

In the present case, there is absolutely no
    doubt that the appellants limited English language skills would prevent him
    from effectively exercising his statutory right to appeal. He requires counsel
    to proceed with his appeal.

[10]

As I read the record, the appellants most
    significant ground of appeal is that the trial judge erred by applying uneven
    scrutiny to the evidence of the appellant and the complainants mother on a key
    aspect of his defence. The appellants DNA was identified in a semen sample
    found on a towel used by the complainant at the time of the second assault. At
    trial, the appellant testified that the most likely reason for the presence of
    his semen on the towel was that the complainants mother had previously used it
    during the course of her intimacy with appellant as part of an on-going affair.
    Appellants counsel submits that the trial judge erred in her assessment of the
    respective explanations regarding the towel by preferring the mothers
    explanation on the basis that she kept a clean house. That approach,
    appellants counsel contends, is an indicia of applying uneven scrutiny to the
    evidence.

[11]

Uneven scrutiny is a challenging ground of
    appeal to advance, especially on this application where the trial transcripts
    are not yet available and the appellant relies solely on the trial judges
    reasons. However, the appellants argument touches on the heart of his defence
    at trial regarding the presence of his DNA on the towel. In the circumstances,
    I cannot say that it is a frivolous argument. As this court stated in
Bernardo
,
    at para. 22: An appellant who has only an arguable case is presumably more in
    need of counsel that an appellant who has a clearly strong appeal.

[12]

Accordingly, I am
    satisfied that it is desirable in the interests of justice to appoint s. 684
    counsel for the appellant. I grant the appellants s. 684 application and
    appoint Craig Zeeh as his counsel. An order is to go in accordance with the
    draft filed with the application materials.

David Brown J.A.


