Court File and Parties

COURT FILE NO.: CR-19-40000062-00AP DATE: 20200219 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MOHANNED MUAWAI KHALIL MOHAMMED Defendant/Applicant

Counsel: Helen Song, for the Crown Ines Gavran, for the Defendant/Applicant

HEARD: January 28, 2020

APPLICATION FOR BAIL PENDING APPEAL

MICHAEL G. QUIGLEY J.

[1] On May 6, 2019, following a five-day trial, the Honourable Justice Shandler of the Ontario Court of Justice convicted the applicant of one count of sexual assault under s. 271 of the Criminal Code of Canada (the “Code”). On July 5, 2019, he imposed a sentence of 18 months imprisonment. The applicant is currently incarcerated at the Toronto South Detention Centre.

[2] The applicant has appealed against both conviction and sentence. On this application, he seeks bail pending appeal based on grounds of appeal claimed to involve questions of fact, law or mixed fact or law. These grounds are:

(i) the trial judge demonstrated bias in favour of the complainant, including applying different standards of scrutiny to the evidence with respect to the complainant and the applicant; (ii) the trial judge relied on inadmissible material that was not properly in evidence before the court; (iii) the trial judge misapprehended or failed to appreciate material evidence; (iv) the trial judge misapprehended or failed to appreciate evidence bearing upon issues of credibility and reliability; and (v) the trial judge's sentence is demonstrably unfit and failed to take into account the applicant's refugee status and lack of a criminal record.

[3] The test for bail pending appeal in summary conviction matters is set out in s. 816(1) of the Code. Subsection 816(1) of the Code provides that the summary conviction appeal court may release a defendant pending appeal if the defendant is in custody. However, this provision does not state the criteria, which are to be considered in an application for release. In R. v. Ururyar, 2017 ONSC 4428, Dambrot J. held at para. 39 that the criteria for considering release pending appeal to the Court of Appeal in s. 679(3) of Code should be applied in the summary conviction appeal context (see also R. v. Simpson (1978), 33 C.C.C. (2d) 109 at paras. 5-7; The Honourable Justice Roger E. Salhany, Canadian Criminal Procedure, 6th ed. At para. 9.1670). Accordingly, a judge of this court may release an applicant from custody pending the determination of his appeal if the applicant establishes the three criteria set out in s. 679(3) of the Code. The burden is on the applicant to establish that all three criteria are fulfilled. Those criteria are:

(i) that the appeal or application for leave to appeal is not frivolous; (ii) that the accused will surrender himself into custody in accordance with the terms of the order; and (iii) that the detention of the offender is not necessary in the public interest.

[4] The Crown opposes release of the applicant on the basis that the defence has failed to meet its onus on the first and third factors. With respect to the second factor, Crown counsel concedes that the applicant’s compliance with his pre-trial terms of recognizance shows that there is no real risk that the applicant will not surrender into custody in accordance with the terms of any order that may be made.

[5] However, relative to the other two grounds, Crown counsel argues not only has the applicant not raised viable grounds of appeal, but also that the detention of the applicant is necessary in the public interest. She says that the seriousness of the offence for which the applicant was convicted, involving a vulnerable victim and the imposition of an 18-month sentence, give rise to a strong public interest in his continuing detention pending appeal.

[6] In that respect, the Crown referred to the Supreme Court of Canada’s decision in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250 at paras. 37-45 and 50, where the court concluded that bail may be denied where an applicant has been convicted of a very serious offence and is advancing a weak appeal. In such a case, the interest in enforceability need not yield to reviewability, and bail may be denied, especially where the applicant was convicted of a serious offence and faces the prospect of a lengthy period of incarceration.

[7] On the other hand, defence counsel focused on the corollary position in para. 51 of Oland, where Moldaver J. observed that:

…where public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the “not frivolous” criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of murder or other very serious offences.

[8] I granted bail to the applicant on January 28, 2020 at the conclusion of the hearing, for brief reasons given then and written reasons to follow. These are my reasons.

Legal principles

[9] Dealing with the first criterion of whether the applicant’s appeal is frivolous, R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132 establishes that an appeal is not frivolous if the proposed grounds of appeal simply “raise arguable issues”. The threshold is admittedly low. As Watt J.A. observed, the applicant does not need to establish a “likelihood of success” on appeal, much less a certainty. Indeed in Oland at para. 44, Moldaver J. notes that benchmark phrases such as “prospect of success” are generally not helpful at this stage. However, the applicant must be able to identify and point to a potentially viable ground of appeal that would warrant appellate intervention if it were to be established. In other words, the issues raised must be at least arguable.

[10] Nonetheless, the issue of whether an appeal is frivolous is not just a standalone test. It also informs and is part of the context that must be taken into account in consideration of the public interest component.

[11] That third criterion in an application for bail pending appeal is whether the applicant’s detention is necessary in the public interest. In R. v. Forcillo, 2016 ONCA 606, Gillese J.A. observes that under the rules in s. 679(3), which are to be applied to applications for release under s. 816(1), there are two components to the “public interest” criterion: public safety and public confidence in the administration of justice.

[12] At paras. 10-14 of her endorsement, she states as follows:

10 Public safety is concerned with the risk that the Appellant, if released, would commit further offences by posing a risk to others or to the administration of justice: R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.). There is no suggestion that the Appellant would re-offend if released and the Crown concedes this. He does not pose a risk to the public safety.

11 Determining whether detention is required based on public confidence in the administration of justice requires the court to balance the conflicting principles of reviewability and enforceability. That is, the public interest criterion requires a judicial assessment of the need to review the conviction (reviewability) and the need to respect the general rule of immediate enforceability of judgments (enforceability): Farinacci, at para. 43.

12 In performing this assessment, the court must consider the seriousness of the offence for which the Appellant has been convicted and assess the merits of the appeal.

13 The Appellant has been convicted of a very serious offence: attempted murder. He faces the prospect of a lengthy period of incarceration: six years.

14 It must be remembered that this court’s role in assessing the merits is not to decide the appeal. My role is limited to assessing whether the merits of appeal are sufficiently strong to shift the balance in favour of release. On my assessment, the merits of the appeal shift the balance in favour of reviewability. Public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected: see Farinacci, at para. 43.

[13] At paras. 41 – 44 of Oland, Moldaver J. specifically notes the dual role played by the “not frivolous” criterion in s. 679(3)(a) of the Code. The second role relates to the public confidence element of the public interest criterion. Farinacci recognizes that the merits of the appeal may be assessed, not only for the threshold test, but also in the course of considering the question of public confidence. At para. 45 Moldaver J. continues:

45 In the end, appellate judges can be counted on to form their own “preliminary assessment” of the strength of an appeal based upon their knowledge and experience. This assessment, it should be emphasized, is not a matter of guesswork. It will generally be based on material that counsel have provided, including aspects of the record that are pertinent to the grounds of appeal raised, along with relevant authorities. In undertaking this exercise, appellate judges will of course remain mindful that our justice system is not infallible and that a meaningful review process is essential to maintain public confidence in the administration of justice. Thus, there is a broader public interest in reviewability that transcends an individual’s interest in any given case.

[14] In this case, the applicant has not been convicted of attempted murder, but he has been convicted of a very serious offence: non-consensual sexual intercourse with the complainant. He has been sentenced to imprisonment for 18-months. It is clear the first component of the public interest criterion is not in issue because there has been no suggestion that public safety would be put at risk if this applicant were released pending appeal. Rather, it is the second component, the public’s confidence in the administration of justice, that is at the centre of the Crown’s opposition to this application.

[15] With the guidance of these authorities, I now look at the grounds of appeal raised by the applicant. I will first address the claim of bias, but will then review the second, third and fourth grounds together and consider whether they pass the threshold. I will conclude by considering whether the public’s confidence in the administration of justice would be diminished if the applicant were to be released.

Bias

[16] An allegation of reasonable apprehension of bias based on misconduct by the trial judge is a very difficult ground of appeal due to the strong presumption of judicial impartiality. A party who seeks to rebut this presumption bears a heavy evidential burden: R. v. Dowholis, 2016 ONCA 801 at para. 18.

[17] The impartiality presumption carries considerable weight, but may be overcome in certain cases. The evaluation of whether a reasonable apprehension of bias has arisen is context-driven. It is influenced not only by the conduct of the trial judge, but also the context within which that conduct occurred: R. v. Ruthowsky, 2018 ONCA 552, [2018] O.J. No. 3165 (C.A.), at para. 22. The test asks what an informed person would conclude, having viewed the matter realistically and practically and having thought the matter through. Would he or she think that it is more likely than not that the decision-maker would not decide fairly, whether consciously or unconsciously? See R. v. R.D.S., [1997] 3 S.C.R. 484 at para. 31.

[18] Here, the applicant makes a bald assertion that the trial judge demonstrated an apprehension of bias in favour of the complainant, apparently because he only accepted her evidence. However, a trial judge is entitled to accept some, all, or none of the evidence of a witness. The trial judge does not demonstrate an apprehension of bias merely because he or she has accepted only one witness’s testimony.

[19] Defence counsel acknowledged that there was no bias evident in any aspect of the trial judge’s conduct over the five days of the trial. Rather, she contends that a reasonable apprehension of bias is evident from his Reasons for Judgment. Notwithstanding that claim, I find nothing in my review of the Reasons for Judgment of the trial judge from which bias on the part of the trial judge against the applicant or in favour of the complainant could reasonably be apprehended. In my view, this ground of appeal has no prospect of success and is entirely frivolous.

Alleged misapprehensions and unbalanced consideration of evidence

[20] Apart from the question of sentence, the three remaining grounds of appeal all arguably involve different avenues of attack against the factual findings made by the trial judge and his assessment of the evidence. They are that he:

(i) relied on inadmissible material that was not properly in evidence; (ii) misapprehended or failed to appreciate material evidence; and (iii) misapprehended or failed to appreciate evidence bearing upon issues of credibility and reliability. The specific allegations are set out in paras. 11-20 of the Affidavit of Merits sworn by Nicholas Pham.

[21] It is clear from pages 2-3 of his Reasons that the trial judge understood that he was required to apply the principles in R. v. W.(D.), [1991] 1 S.C.R. 742 in considering the evidence to determine whether the Crown had proven the sexual assault beyond a reasonable doubt. He self-instructed on the three steps of analysis required under W.(D.).

[22] The challenge here, however, is not to the trial judge’s understanding of the W.(D.) framework, but rather an alleged deficiency in his apprehension of the evidence and in his assessment of the witnesses’ credibility and reliability as he applied those tests. The applicant claims that the trial judge applied different standards of scrutiny to the evidence of the defence and the evidence of the Crown.

[23] The claim that a trial judge applied inconsistent levels of scrutiny is a recognized ground of appeal. R. v. Gravesande, 2015 ONCA 774 at paras. 18-20. However, in R. v. Aird (2013) O.A.C. 183, Laskin J.A. observed that it can be a difficult argument, not only because the credibility findings of the trial judge attract substantial deference on appeal, but also because the argument may be viewed with skepticism, as merely an effort to cause the appellate court to reassess the trial judge’s credibility and reliability determinations. As such, there must be something in the trial judge’s Reasons or the record indicating that a different standard of scrutiny was applied. The inconsistency must be sufficiently significant to displace the deference that is otherwise due to the trial judge’s credibility assessments.

[24] Here it is claimed there is no factual foundation for the speculative inference in the complainant’s evidence as to how the applicant could have followed her to Mr. Cole’s apartment. She testified that she was afraid that the applicant might have been on foot, following the cab that she was in, and that was how he came to know where Mr. Cole lived. The trial judge stated at page 12 as follows:

Defence counsel suggested that [the complainant’s] testimony that the defendant could have somehow followed her to Mr. Cole’s apartment was ludicrous, as she was in a cab and the defendant was on foot following their first encounter. I would simply note that [the complainant] testified that when she got into a cab to go to Mr. Cole’s apartment, the traffic was very heavy, such that an individual on foot would be able to keep up. There is nothing inherently unbelievable about that account.

[25] The difficulty with that statement is that there does not appear to be a factual foundation to support the complainant’s conclusion, which is arguably speculative. There was no evidence about the distance to Mr. Cole’s apartment from the location where she was picked up by the cab. Even if the traffic was heavy when the complainant got into the cab, there was no evidence as to whether the traffic continued at exactly the same pace, such that a person on foot could keep up. The applicant testified that he did not know where Mr. Cole lived, but the trial judge is claimed to have rejected the applicant’s evidence on that point. This had the effect of enhancing the complainant’s credibility, but arguably without foundation, with the trial judge concluding only that “there [was] nothing inherently unbelievable about [her] account.”

[26] There was conflicting evidence as to the applicant’s continuing interest in the complainant after the assault which the trial judge found occurred on May 22, 2017. According to the complainant, after that night, she had three encounters with the applicant, during the first of which the applicant approached her and spoke to her, and the other two of which gave her the impression that the applicant was following her. The applicant gave evidence that he was not interested in her and that there was only one encounter between them after May 22, 2017. The trial judge found that other evidence, including the facts that the applicant had asked the complainant to go to a bar on the night of May 22, 2017 and had asked for her phone number the following morning, supported the conclusion that “the defendant is not being truthful with the court about his level of interest in her.”

[27] It is claimed that the trial judge’s Reasons do not demonstrate an analysis of the applicant’s testimony regarding what happened and did not happen in his bedroom on May 22, 2017. Instead, it is claimed the trial judge rejected all of the applicant’s evidence simply because, in the trial judge’s view, the applicant was not being truthful about his level of interest in the complainant. This appears to be an at least arguable proposition.

[28] The applicant also gave evidence at trial regarding a log book he kept of the hours he was working as a security guard, submitting that the log book showed that he could not have been present during the third encounter alleged by the complainant and her boyfriend, Mr. Cole. Regarding this evidence, the trial judge states:

I appreciate as well that the defendant suggested he could not have been outside Mr. Cole’s apartment as he was working security on that occasion. However the logbook produced of the defendant’s hours contain entries for January 21 and 22nd. Mr. Cole’s phone call to the police was made on January 28. The logbook does not provide any support from the defendant’s account that he was otherwise working.

[29] There is a concern raised by the applicant relative to this passage in that the log book was produced by the applicant in his own defence. While there are no entries relating to the January 28 date, the trial judge nevertheless applies that absence of defence evidence against the interests of the defendant, noting that there is nothing in the log book that shows that he was otherwise working on that date. It is at least arguable that this conclusion results from an impermissible reversal of the burden of proof. On the other hand, the trial judge did not attempt to reconcile the inconsistent evidence given by Mr. Cole and the complainant as to the date of the third encounter, which took place on December 17 in the complainant’s evidence, but January 28 in Mr. Cole’s evidence.

[30] In contrast to the trial judge’s treatment of the applicant’s evidence, it is claimed that there was little probing analysis of the complainant’s testimony, and in particular with respect to problems affecting her reliability. She testified that she had only one drink on the night of May 22, 2017. There was no evidence of any doctoring of her drink. Nevertheless, she inexplicably became entirely intoxicated. Her intoxication caused her to be unsure about a number of things. She had no recollection of seeing a significant scar on the applicant’s shoulder when, based on her evidence, it would have been right before her eyes during the intercourse. She said she was “not in the right place” to notice something that was as noticeable as that scar.

[31] It is claimed none of these alleged problems with her evidence caused the trial judge to question the reliability of the complainant’s testimony.

[32] Based on these claims, it is fair in my view to question the adequacy of the trial judge’s Reasons to satisfy and answer the concerns raised by the applicant in his appeal. R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 establishes that a trial judge’s Reasons must be sufficiently clear to permit meaningful appellate review. Here, it was necessary for the trial judge to provide a cogent justification for his rejection of the evidence of the applicant. Doherty J.A. addresses this issue in para. 35 of R. v. D.(J.J.R.), [2006] O.J. No. 4749 (C.A.):

35 Certainly, a trial judge owes it to an accused to explain his or her reasons for convicting that accused. Where the accused has testified, this will include an explanation for rejecting the accused’s denial. However, where the sufficiency of the reasons is challenged on appeal, the outcome of the appeal must turn on whether there can be a meaningful appellate review of the trial proceedings: see R. c. Gagnon (2006), 2006 SCC 17, 207 C.C.C. (3d) 353 (S.C.C.) at para. 14. This is evident from the observation in Sheppard, supra, at para. 55:

Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient. There is no need in such a case for a new trial.

[33] It is evident that the trial judge accepted the evidence of the complainant but rejected the evidence of the accused. As Doherty J.A. instructs, this is acceptable subject to the important provisos at para. 53 of D.(J.J.R.):

53 The trial judge’s analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. [Emphasis added.]

[34] In the end, this is the difficulty that causes me to conclude that the grounds advanced by the applicant are not frivolous: it appears to me to be open to the summary conviction appeal judge who hears this appeal in due course to find that at least some of the trial judge’s findings are merely conclusory. While the Reasons facially explain the basis for finding the complainant to be credible, they arguably do not show that the trial judge addressed the issues of reliability. In addition, there are other issues, such as the absence of a factual foundation for certain findings, that I find meet the test. In my view, whether or not they will be successful, each of these three grounds advanced by the applicant is at least arguable. As such, I accept that the first test is met.

Public Interest

[35] The public interest test described above seeks to balance the competing issues of enforceability and reviewability with respect to public confidence in the administration of justice. The enforceability principle encompasses the public’s interest in finality and prompt and effective enforcement of court orders. The reviewability principle, on the other hand, encompasses the countervailing public interest in having judgements reviewed so that errors, if they exist, can be corrected.

[36] At paras. 47-51 of Oland, Moldaver J. describes the required balancing as follows:

47 Appellate judges are undoubtedly required to draw on their legal expertise and experience in evaluating the factors that inform public confidence, including the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risks. However, when conducting the final balancing of these factors, appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public. This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.), at paras. 74-80. In that sense, public confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which has no role to play in the decision to grant bail or not.

48 In balancing the tension between enforceability and reviewability, appellate judges should also be mindful of the anticipated delay in deciding an appeal, relative to the length of the sentence: R. v. Baltovich (2000), 47 O.R. (3d) 761 (Ont. C.A. [In Chambers]), at paras. 41-42. Where it appears that all, or a significant portion, of a sentence will be served before the appeal can be heard and decided, bail takes on greater significance if the reviewability interest is to remain meaningful. In such circumstances, however, where a bail order is out of the question, appellate judges should consider ordering the appeal expedited under s. 679(10) of the Code. While this may not be a perfect solution, it provides a means of preserving the reviewability interest at least to some extent.

49 In the final analysis, there is no precise formula that can be applied to resolve the balance between enforceability and reviewability. A qualitative and contextual assessment is required. In this regard, I would reject a categorical approach to murder or other serious offences, as proposed by certain interveners. Instead, the principles that I have discussed should be applied uniformly.

50 That said, where the applicant has been convicted of murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak: R. v. Mapara, 2001 BCCA 508, 158 C.C.C. (3d) 312 (B.C. C.A.), at para. 38; Baltovich, at para. 20; Parsons, at para. 44.

51 On the other hand, where public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the “not frivolous” criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of murder or other very serious offences.

[37] Defence counsel argues that the public interest in this case favours the release of the applicant. The applicant was on bail prior to trial for a considerable period of time and did not breach any of his bail terms. Moreover, the applicant has no prior criminal record, previously had one surety, and now has two sureties with a surety posted in the amount of $1000. The defence contends there is no flight risk whatsoever, nor in these particular circumstances does the public’s confidence in the administration of justice require the enforceability of this sentence pending review.

[38] It is important to the defence position that the applicant has already served one-third of his 18-month sentence. He is eligible for release now. However, by the time his appeal is heard, which would be 10 months from now, he would have served almost the entirety of his sentence. In those circumstances, given that there is no public safety risk, it seems reasonable in my mind that the reviewability principle would take precedence in this case over the principle of enforceability as Moldaver J. contemplates at para. 48 of Oland.

[39] However, Crown counsel vigorously opposed the applicant’s release on bail pending appeal on the basis that release would be contrary to the public interest. The Crown argues that in the circumstances of this case, the need for enforceability is paramount so as to maintain the public confidence in the administration of justice.

[40] Crown counsel contends that the grounds of appeal are very weak at best, even if this court finds, as I do, that they are not frivolous. In contrast, Crown counsel points to the fact that the offence on a vulnerable victim resulted in a significant sentence for the applicant, especially given the fact that he had no previous criminal convictions. Without providing a real explanation, Crown counsel maintained that in the particular circumstances of this case, the balance is tipped in favour of enforceability over reviewability.

[41] Crown counsel was asked to explain the particular compelling aspects of this case that in her view required enforceability in order to maintain public confidence in the administration of justice. The Crown responded to the effect that “we live in different times now, with the presence of the “Me Too” movement”, and she asserted that change in the public dimension of sexual offences has now increased the need for enforceability to be emphasized.

[42] I reject this position, as I immediately and unequivocally communicated to Crown counsel. Displacement of foundational criminal law principles such as the presumption of innocence in favour of such concerns was arguably behind a significant portion of the decision of the Ontario Court of Justice in Ururyar, 2016 ONCJ 448. However, that reasoning, as the trial judge’s basis for convicting the defendant in that case, was unequivocally reversed as inappropriate and without foundation in our law, both on the applications for bail pending sentence and pending appeal, and on the appeal itself. Ururyar, 2016 ONSC 5056, Ururyar, 2017 ONSC 4428.

[43] Respectfully, despite its important recognition and encouragement of increased reporting of sexual offences, in my view the presence of the “Me Too” movement in our society today has not altered the balance that is to be judicially exercised in determining whether bail should be granted pending appeal. There has been no tipping of the balance in the law in favour of enforceability over reviewability in order to maintain public confidence in the administration of justice, and no additional emphasis on enforceability is required.

[44] Here, there are no public safety or flight concerns. There is no risk of the applicant reoffending while on bail pending release. I have found that there are a number of aspects of the proposed appeal that are arguable, and thus “not frivolous.” As such, and in the particular circumstances of this case, I am persuaded that the public interest in reviewability should predominate over the enforceability interest, even though this case involves a conviction for a serious offence. The application for bail pending appeal is granted.

MICHAEL G. QUIGLEY J.

Released: February 19, 2020