Court Information

Court of Appeal for Ontario

Date: 2017-06-23

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

Judge: Brown J.A. (In Chambers)

Parties

Between

Her Majesty the Queen Respondent

and

Fathy El-Kasir Applicant

Counsel

• Fathy El-Kasir, applicant
• Catherine M. Gleason-Mercier, duty counsel
• G. Karen Papadopoulos, for the respondent

Heard: June 21, 2017

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 judge's 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 applicant's delay in seeking leave to appeal has been inordinate and unjustifiable.

[7] The applicant's 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 complainant's 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 complainant's 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 applicant's delay.

[21] More importantly, the applicant's 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 applicant's 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 applicant's 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 applicant's motions M47587, M47698 and M47700 seeking extensions of time to seek leave to appeal.

"David Brown J.A."