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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant’s 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

6. (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

7. (a) as soon as feasible, inform the victim of their right to make an application for the order; and

8. (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. Mir, 2016 ONCA 795

DATE: 20161028

DOCKET: C58752

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Khalid Mir

Applicant

Khalid Mir, in person

Heather Pringle, duty counsel for the applicant

Brock Jones, for the Crown

Heard: April 5, 2016

On application for leave to appeal from the order of Justice John Murray of the Superior Court of Justice, dated April 11, 2014.

Simmons J.A.:

A. introduction

[1] Following a trial in the Ontario Court of Justice, the applicant was convicted of sexual assault and sentenced to eight months’ imprisonment and three years’ probation. The applicant failed to comply with orders setting timelines for perfection of his conviction and sentence appeal to the summary conviction appeal court. The summary conviction appeal court dismissed his appeal as abandoned and also dismissed his subsequent application to re-open his appeal.

[2] The applicant now applies for leave to appeal the order dismissing his application to re-open his summary conviction appeal, seeks to file fresh evidence in support of his application and, if leave is granted, appeals the order dismissing his application to re-open. For the reasons that follow, I would admit the fresh evidence in part, grant leave to appeal, allow the appeal in part and order that the applicant be permitted to re-open his summary conviction appeal as it relates to sentence in the summary conviction appeal court. I would otherwise dismiss the application to admit fresh evidence and the appeal.

B. Background

[3] On May 31, 2012, the applicant was convicted of sexual assault in relation to events that occurred on August 20, 2010. The trial judge found that the applicant, a taxi driver, sexually touched a female front seat passenger while she was riding in his cab. The touching began soon after the applicant dropped the young woman’s friend off at the friend’s home and continued as he drove the front seat passenger to her home. On October 25, 2012, the applicant was sentenced to eight months’ imprisonment and three years’ probation for this offence.

[4] The applicant appealed his conviction and sentence to the summary conviction appeal court. Although the applicant, who was by then self-represented, paid for and obtained the transcripts of his trial, he failed to comply with two orders setting time limits for him to perfect his appeal. The initial order required the applicant to file all material within 90 days; the subsequent order required that he file his appeal book and factum by March 20, 2014, about 56 days after the initial deadline. As the applicant failed to meet the March 20, 2014 deadline, on March 21, 2014 a judge of the summary conviction appeal court dismissed the applicant’s conviction and sentence appeal as abandoned.

[5] On April 3, 2014, the applicant applied to the summary conviction appeal court to re-open his appeal. He did not file an appeal book and factum with his application. Rather, he requested that the court provide him with a record of text messages and videos held by the police. On April 11, 2014[^1], the applicant’s application to re-open his appeal was dismissed. The summary conviction appeal court judge noted that full disclosure would have been provided before trial and that, if the applicant sought to introduce fresh evidence, it was up to him to obtain it.

C. The applicant’s position in this court

[6] The applicant submits that this court has jurisdiction under s. 839 of the Criminal Code, R.S.C. 1985, c. C-46, to hear his leave application and if leave to appeal is granted, to set aside the summary conviction appeal judge’s decision refusing to allow his summary conviction appeal to be re-opened. He argues that, in declining to re-open his appeal, the summary conviction appeal court judge erred in law by failing to consider whether it was in the interests of justice that his appeal be re-opened.

[7] With the assistance of duty counsel, the applicant seeks to introduce fresh evidence. The fresh evidence addresses two issues. The first issue is the applicant’s claim that he did not receive disclosure of a residential surveillance video that was in the possession of the police for the purposes of his trial. The second issue is that, on April 25, 2013, the applicant was ordered deported. As a result of being sentenced to a term of imprisonment exceeding six months and the retrospective application of the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16[^2], the applicant is not entitled to appeal his deportation order.

D. Discussion

(i) Jurisdiction

[8] In my view, this court has jurisdiction to hear this matter under s. 839 of the Criminal Code.

[9] Part XXVII of the Criminal Code creates two avenues of appeal for summary conviction matters. The first avenue is under s. 813, in relation to which s. 822 stipulates the powers of the appeal court. The second avenue is under s. 830, in relation to which s. 834 stipulates the powers of the appeal court.

[10] Section 839 gives this court jurisdiction to entertain an appeal, with leave, on a question of law alone against “a decision of a court in respect of an appeal under section 822” or against “a decision of an appeal court under section 834”.

[11] The applicant’s notice of appeal to the summary conviction appeal court does not specify which appeal route he intended to follow. However, whether he brought his appeal to the summary conviction appeal court under s. 813 or s. 830, I am satisfied the order of the summary conviction appeal court declining to re-open his summary conviction appeal falls within the language of s. 839.

[12] Depending on which appeal route the applicant was pursuing, the decision of the summary conviction appeal court declining to re-open his appeal would be either “a decision of a court in respect of an appeal under section 822” or “a decision of an appeal court under section 834”: see R. v. Tung, 2016 ONCA 782, paras. 26 to 34. As such, and given that a question of law has been alleged, this court has jurisdiction to consider this application for leave to appeal.

(ii) Fresh evidence relating to disclosure of the residential surveillance video

[13] I would decline to admit the fresh evidence relating to disclosure of the residential surveillance video. This evidence is advanced to establish that it was in the interests of justice to re-open the applicant’s appeal relating to his conviction. The material filed demonstrates only that a police officer viewed the video; it does not demonstrate that the police are now, or were ever, in possession of the video. Moreover, the applicant has failed to demonstrate how the surveillance video could possibly have affected the outcome of his trial. On the trial judge’s findings, the sexual assault began soon after the applicant dropped the complainant’s friend off at the friend’s home. The applicant’s defences at trial were consent and honest but mistaken belief in consent. The applicant has not advanced any argument to demonstrate how the content of the video, which apparently showed the complainant being dropped off at the residence, could have affected his position at trial. This portion of the proposed fresh evidence does not raise an arguable ground of appeal relating to the applicant’s conviction and therefore fails to demonstrate that it was in the interests of justice to re-open the applicant’s appeal or support the applicant’s request for leave to appeal the order declining to re-open his appeal. Accordingly, I would dismiss the application to introduce fresh evidence concerning the residential surveillance video.

(iii) Fresh evidence relating to the applicant’s deportation order

[14] The Crown fairly acknowledges that the fresh evidence relating to the applicant’s deportation order should be admitted and that an order should be made permitting the applicant to re-open his appeal as it relates to sentence.

[15] No issue was raised before the sentencing judge concerning the potential immigration consequences of any sentence – no doubt at least in part because the Faster Removal of Foreign Criminals Act, s. 24 of which operates retrospectively, had not yet been enacted.

[16] Based on R. v. Freckleton, 2016 ONCA 130, the Crown acknowledges that there is a realistic possibility that the fresh evidence concerning the applicant’s deportation order and the issue of the immigration consequence of his sentence could affect the outcome of his summary conviction appeal as it relates to sentence.

[17] I agree. I also note that the applicant was unrepresented on the application to re-open his summary conviction appeal.

[18] The fresh evidence concerning the applicant’s deportation order is admitted. On the facts of this case, it is determinative of the issues of whether leave to appeal should be granted and the applicant’s appeal as it relates to sentence should be re-opened.

(iv) Leave to appeal and disposition of the appeal

[19] The applicant’s summary conviction appeal was dismissed for delay and therefore was not disposed of on its merits. The summary conviction appeal court judge failed to consider whether it was in the interests of justice to permit the applicant to re-open his appeal. In failing to do so, he erred in law.

[20] As I have said, in this case, the fresh evidence concerning the applicant’s deportation order is determinative of the leave issue and the question whether it is in the interests of justice to permit the applicant to re-open his summary conviction appeal as it relates to sentence.

[21] However, the applicant has failed to demonstrate even an arguable ground of appeal in relation to conviction. In all the circumstances, it is not in the interests of justice to permit him to re-open that aspect of his summary conviction appeal.

[22] Accordingly, I would grant leave to appeal. I would set aside the order refusing to permit the applicant to re-open his summary conviction appeal as it relates to sentence, and re-open the applicant’s summary conviction appeal as it relates to sentence. I would order the applicant to attend the summary conviction appeal court as directed and to abide by its directions as to perfecting his summary conviction appeal as it relates to sentence. I would dismiss the balance of the applicant’s appeal such that the order declining to permit the applicant to re-open his summary conviction appeal as it relates to conviction remains in full force and effect.

Released:

“OCT 28 2016” “Janet Simmons J.A.”

“KF” “I agree K. Feldman J.A.”

“I agree S.E. Pepall J.A.”

[^1]: According to a chronology filed by duty counsel, the applicant applied to the Superior Court to re-open a second time and that application was also dismissed on December 4, 2015. However, that order does not form part of the subject matter of this appeal.

[^2]: Section 24 of the Faster Removal of Foreign Criminals Act amended s. 64(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, to allow a person found inadmissible for serious criminality to appeal to the Immigration Appeal Division only if he or she had been punished by a term of imprisonment of less than six months. Prior to the amendment, anyone receiving a sentence of less than two years had a right of appeal to the Immigration Appeal Division. Section 24 of the Faster Removal of Foreign Criminals Act came into force on June 19, 2013.