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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20210409 Docket: (M52328) C68857

Hoy J.A. (Motion Judge)

Between: Her Majesty the Queen Respondent (Responding Party)

And: Mohanned Muawia Khalil Mohammed Applicant (Moving Party)

Counsel: Ines Gavran, for the applicant Erica Whitford, for the respondent

Heard: April 9, 2021 by video conference

Endorsement

[1] The applicant seeks an order pursuant to s. 684 of the Criminal Code, R.S.C. 1985, c. C-46, appointing counsel to assist him with his application for leave to appeal, and if leave be granted, his appeal. The Crown opposes. Moreover, the Crown asks that I decide whether the applicant should be granted leave at this time and refuse leave.

[2] The applicant’s trial in the Ontario Court of Justice proceeded by way of summary conviction proceeding. After a five-day trial, the applicant was convicted of sexual assault and sentenced to 18 month’s custody. He appealed, arguing that the trial judge erred in his application of R. v. W.(D.), [1991] 1 S.C.R. 742, and provided insufficient reasons. The summary conviction appeal court judge dismissed his appeal.

[3] The applicant has served the custodial portion of his sentence and is currently on parole. The conviction has significant immigration consequences to the applicant, and he wishes to pursue a second appeal to this court.

[4] The applicant was represented by counsel of his choice before the trial judge and the summary conviction appeal court judge. However, he has not worked since being released on parole. His only income consists of Ontario Works and government pandemic relief in the form of CERB payments, which barely cover his living expenses. His evidence is that he has no other funds or assets.

[5] Legal Aid Ontario refused his application for legal aid coverage for an appeal to this court on the basis that his appeal did not have sufficient merit to justify giving him a legal aid certificate. Its refusal of coverage was upheld on appeal to the Provincial Office.

[6] Section 684(1) provides that a judge of this court may assign counsel to act on behalf of an accused where, in the opinion of the judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance. An order for government-funded counsel is exceptional relief: R. v. Staples, 2016 ONCA 362, 352 O.A.C. 392, at para. 40, reconsideration allowed, R. v. Staples, 2017 ONCA 138.

[7] The applicant has satisfied me that he does not have sufficient means to obtain legal assistance on his application for leave to appeal and, if leave be granted, his appeal.

[8] However, I am not persuaded that it is in the interests of justice that I order legal assistance.

[9] Leave to appeal to this court from the summary conviction appeal court’s decision is required and an appeal may only be taken on any ground that involves a question of law alone: s. 839(1) of the Criminal Code. Leave to appeal is granted sparingly: R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, at para. 37. There are two circumstances in which leave is granted: R.R. at paras. 32, 37:

1. When the merits of the proposed questions of law are arguable, even if not strong, and the proposed question of law has significance to the administration of justice that goes beyond the particular case; or
2. When there appears to be a “clear” error even if it cannot be said that the error has significance to the administration of justice beyond the particular case, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his liberty.

[10] The trial judge rejected and was not left in reasonable doubt by the applicant’s evidence that no sexual contact whatsoever occurred when the complainant was at his apartment. The complainant testified that she had only one drink before going to the applicant’s apartment, but became very intoxicated and there were gaps in her memory. However, she was clear that that the applicant had sexual intercourse with her, without her consent. The trial judge accepted the complainant’s evidence.

[11] Counsel for the applicant says this appeal raises questions of law that have significance to the administration of justice that go beyond this case. In particular, (1) how should a trial judge assess the credibility of a complainant who says she was intoxicated to the point of having gaps in her memory after only one drink, and (2) how should the reliability of the evidence of a complainant who is intoxicated be assessed.

[12] The reasons of the summary conviction appeal court judge, the notice of appeal to this court, and the opinion letter to Legal Aid Ontario by the applicant’s trial and summary conviction appeal court counsel provide a framework for the grounds on which the applicant will seek leave and, if leave be granted, appeal. Further, the applicant has a university education.

[13] I am of the view that the issues that the applicant seeks leave to pursue on this second appeal are relatively straightforward and that a panel of this court can fairly and properly assess whether the proposed appeal satisfies the test for leave, and, if leave be granted, can fairly and properly deal with the appeal without the assignment of counsel to act on his behalf.

[14] I reject the Crown’s request that I decide, and refuse, the applicant’s leave application at this time. The Crown correctly notes that s. 839(1) of the Criminal Code provides that an appeal to this court of a summary conviction matter may be taken on any ground that involves a question of law alone with the leave of this court “or a judge thereof”. However, r. 7.3.6(9) of the court’s Criminal Appeals Practice Direction, concerning the procedure on applications for leave to appeal in summary conviction appeals, provides as follows:

Within 30 days of receipt of all materials relating to the appeal, the materials shall be forwarded to a panel of the court assigned to hear criminal appeals during the week the materials are forwarded. The panel shall decide whether to grant or to refuse leave to appeal based on the written material without the attendance of counsel and cause the parties to be notified of their decision. The court will generally not provide reasons granting or refusing leave to appeal.

[15] I am not persuaded that it is appropriate to depart from the court’s practice specified in the Criminal Appeals Practice Direction. The applicant sought the appointment of counsel to assist him with his application for leave and, if leave be granted, his appeal. He must have a full opportunity to prepare and put before the court the materials relating to his appeal.

[16] Accordingly, both the applicant’s application for an order pursuant to s. 684 and the Crown’s request that I decide the question of leave at this time are dismissed.

“Alexandra Hoy J.A.”