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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20210506 Docket: C68857

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Mohanned Muawia Khalil Mohammed Appellant

Counsel: Mohanned Muawia Khalil Mohammed, acting in person Nicole Rivers, for the respondent

Heard and released orally: May 3, 2021 by videoconference

On appeal from the decision of Justice B.P. O’Marra of the Superior Court of Justice dated June 25, 2020, dismissing an appeal from the conviction entered on May 6, 2019, and from the sentence imposed on July 5, 2019, by Justice Ruin Shandler of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of sexual assault and sentenced to 18 months’ imprisonment, followed by three years’ probation.

[2] At trial, he testified in his defence. The trial judge made findings of fact contrary to his evidence and explained why the appellant’s evidence did not leave him with a reasonable doubt. He also held that on the evidence of the complainant, which he did accept, the appellant was guilty beyond a reasonable doubt.

[3] The appellant appealed to the Superior Court of Justice, primarily alleging errors regarding the trial judge’s application of R. v. W.(D.), [1991] 1 S.C.R. 742, and insufficient reasons. The summary appeals court judge found that the trial judge properly applied the W.(D.) test. Further, he found that the trial judge’s reasons sufficiently articulated how credibility concerns and contradictory evidence were resolved. Accordingly, the summary appeals court judge dismissed the appeal.

[4] The appellant seeks leave to appeal to this court. He submits that (1) the summary appeals court judge erred in giving deference to credibility and reliability findings, despite errors made by the trial judge; and (2) the summary appeals court judge erred in concluding that the trial judge provided sufficient reasons, despite not resolving all the live issues in the case.

[5] A second appeal in summary conviction proceedings is the exception, not the rule. Leave to appeal should not be granted merely because an issue of law alone is raised. Access to the Court of Appeal, for a second appeal, should be limited to those cases in which the applicant can demonstrate some exceptional circumstance justifying the further appeal. There is no single litmus test that can identify all the cases in which leave should be granted. There are, however, two key variables, being the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal: R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, at paras. 37-38.

[6] On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, although the grounds must be at least arguable. On the other hand, where the merits of the appeal are very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious, and the application is facing a significant deprivation of his or her liberty: see R.R., at paras. 37-38.

[7] We are not satisfied that the appellant has met the test for leave to appeal. The grounds of appeal are weak. The summary appeals court judge carefully considered and rejected the same arguments that the appellant seeks to argue before this court. We see no error in that analysis. In addition, this case does not raise issues that impact the general administration of criminal justice.

[8] The application for leave to appeal is dismissed.

“Alexandra Hoy J.A.”

“C.W. Hourigan J.A.”

“B. Zarnett J.A.”