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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(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 appellant’s application for refugee status that was contained in a draft Inmate Appeal Book prepared by the Crown. Appellant’s counsel was not aware of the information. Crown counsel undertook to provide appellant’s 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 appellant’s 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), 1997 2240 (ON CA), 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 appellant’s 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 appellant’s most significant ground of appeal is that the trial judge erred by applying uneven scrutiny to the evidence of the appellant and the complainant’s mother on a key aspect of his defence. The appellant’s 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 complainant’s mother had previously used it during the course of her intimacy with appellant as part of an on-going affair. Appellant’s counsel submits that the trial judge erred in her assessment of the respective explanations regarding the towel by preferring the mother’s explanation on the basis that she kept a clean house. That approach, appellant’s 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 judge’s reasons. However, the appellant’s 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 appellant’s 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.”