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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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.

Court of Appeal for Ontario

Date: 20240418 Docket: COA-23-CR-0631

Before: Benotto J.A. (Motions Judge)

Between: His Majesty the King, Respondent and Ahmad Hasan, Appellant

Counsel: Ahmad Hasan, acting in person Erica Whitford, for the respondent

Heard: April 10, 2024

Endorsement

[1] Mr. Hasan seeks leave to appeal the dismissal of his summary conviction appeal. He was convicted of criminal harassment and sentenced to time served of five months plus three years probation.

Background

[2] Mr. Hasan was an Uber driver. He gave the complainant a ride home and asked if he could see her again. She gave him her phone number and they met. After one meeting she attempted unsuccessfully to end any contact with him. She blocked his phone number, told him to stop and said she did not want to see him. But he continued to reach her by phone, by text and by showing up at her place of work. On one day alone there were 76 calls or text messages exchanged, only a handful of which were sent by the complainant. His messages varied from friendly to angry. They ranged from calling her a “bitch” to saying that he wanted her to be the mother of his children and she needed to give the relationship a chance. She was very fearful and contacted the police. He was charged. Amicus was appointed.

[3] The trial judge found that the elements of harassment had been proven beyond a reasonable doubt. The court also issued a publication ban and ordered him to remove statements about the complainant that he had placed online.

Appeal

[4] Mr. Hasan appealed the decision to the Superior Court alleging ineffective assistance of counsel, even though he was self represented. He also alleged unreasonable verdict.

[5] Parfitt J. dismissed the appeal. She applied the test for the conduct of amicus and found that amicus had properly fulfilled the role, thoroughly cross-examined the complainant and there was no basis for his complaints.

[6] She then applied R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, and concluded that there was more than ample evidence to support the verdict. Indeed, she said that the appellant’s argument “made no sense.”

[7] While this appeal was underway, Mr. Hasan applied to another judge of the Superior Court for an order staying the publication ban pending the appeal. Phillips J. dismissed the application having concluded that his online activity was inappropriate and that he had breached the lower court’s order to stop posting about the complainant. Although he had been ordered to remove online statements about the complainant, he openly continued to post.

Leave to Appeal

[8] Mr. Hasan now seeks leave to appeal to this court. Although his notice of appeal sets out over 100 grounds for appeal, he has not met the test articulated in R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641.

[9] A summary conviction appeal is limited to situations that are exceptional because they are significant to the administration of justice generally or have strong merits. Mr. Hasan fails on both counts.

[10] The appeal raises no issues of general importance. Far from raising a legal error, the appeal is devoid of merit. The decision of the trial judge was based on Mr. Hasan’s conduct which clearly satisfied the elements of criminal harassment. The appeal is entirely fact based. It is also fanciful. He alleges that the appeal judge had a conflict of interest for which there is no evidence. He alleges that, by being sent for an NCR assessment, it was shown that he lacked mens rea.

[11] Mr. Hasan also seeks to have this court overturn the publication ban. As Philips J. said, the publication ban was and is necessary to prevent him from continually posting about the complainant. It will remain in force. As ordered by Phillips J. all disclosure is to be forthwith returned to the Crown.

[12] Leave to appeal is dismissed. The order of the trial judge with respect to the publication ban remains in place.

“M.L. Benotto J.A.”