Court of Appeal for Ontario

Citation: R. v. Mohamed, 2015 ONCA 335 Date: 2015-05-12 Docket: C56679

Judges: Watt, Pepall and Benotto JJ.A.

Between:

Her Majesty the Queen Respondent

and

Sheik Mohamed Appellant

Counsel: Stephen Whitzman, for the appellant Mary-Ellen Hurman, for the respondent

Heard and released orally: April 30, 2015

On appeal from the decision of Justice Faye E. McWatt of the Superior Court of Justice, sitting as a Summary Conviction Appeal Court on February 15, 2013, dismissing the appeal from the conviction entered on June 24, 2012 by Justice Bruno Cavion of the Ontario Court of Justice.

Endorsement

[1] Sheik Mohamed was convicted of operation of a motor vehicle with a prohibited blood alcohol level after a trial before a judge of the Ontario Court of Justice. The Crown proceeded by summary conviction.

[2] Mr. Mohamed appealed his conviction the Superior Court of Justice. A judge of that court dismissed his appeal and affirmed the conviction.

[3] Mr. Mohamed now seeks leave to appeal to this court under s. 839(1)(a) of the Criminal Code. The application asserts essentially one ground of appeal. The ground is said to raise a question of law alone.

[4] The applicant contests the correctness of the trial court’s finding, affirmed on the summary conviction appeal, that the officer’s demand that the applicant provide a sample of breath into an alcohol screening device was made “forthwith”, as required by s. 254(2)(b) of the Criminal Code.

[5] It is well settled that leave to appeal to this court under s. 839(1)(a) should be granted sparingly. Two key variables inform the leave decision, for which no bright line rule exists. Those variables are:

i. the significance of the legal issue or issues raised to the general administration of criminal justice; and

ii. the merits of the proposed ground or grounds of appeal.

See R. v. R.(R.) (2008), 2008 ONCA 497, 234 C.C.C. (3d) 463, at para. 37.

[6] Where the issues raised have significance to the administration of justice beyond the specific case in which they arise, leave may be granted, even if the merits of the appeal are not particularly strong. On the other hand, where the merits appear very strong, leave to appeal may be granted, even if the issues to be argued are of no general importance, especially where the convictions are serious and the applicant is facing a significant deprivation of his or her liberty: R.(R.), at para. 37.

[7] The proposed ground of appeal here is the subject of well-established principles of law. Those principles are not in need of restatement or reaffirmation. The controlling precedent is recent, and was advanced as applicable in the submissions of counsel below and noted in the reasons of the summary conviction appeal court judge. The application of the principles that ascribe meaning to the term “forthwith” in s. 254(2)(b), to the circumstances of any case, involve a fact-specific inquiry that, in all likelihood, does not raise a question of law alone. Even if it did, such a question does not rise to the level required by R.(R.).

[8] For these reasons, leave to appeal is refused.

“David Watt J.A.”

“S.E. Pepall J.A.”

“M.L. Benotto J.A.”