R v. Mohamad, 2021 ONSC 3315

COURT FILE NO.: CR-21-0763-00AP

DATE: 2021 05 03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN v. SALIM MOHAMAD

BEFORE: D. E. Harris J.

COUNSEL: Amedeo DiCarlo for the Applicant, Salim Mohamad

Robin Prihar for the Respondent Crown

BAIL PENDING APPEAL ENDORSEMENT

1Mr. Mohamad applies for bail pending appeal. He was found guilty on October 5, 2020 by Justice Kathryn Fellier of one count of sexual assault and sentenced on April 30, 2021, after credit for pre-trial custody, to 15 months incarceration with one year probation.

2The issue revolves around the question of whether the Applicant’s “detention is not necessary in the public interest” within Section 679(3)(c) of the Criminal Code. The “very low bar” set by subsection 679(3)(a) to show that the appeal is not frivolous has been met (see R. v. Oland 2017 SCC 17, [2017] 1 S.C.R. 250 (S.C.C.) at para. 20) as has the surrender into custody criterion in subsection (b).

3On the issue of the public interest, the case against the Applicant at trial was very strong if not overwhelming. The complainant was observed by witnesses at the party she was at and which the Applicant was also at, in a highly intoxicated state. The video at the Super 8 motel at about 6 in the morning, shows the complainant barely able to stand up on her own. She falls asleep in a chair in the lobby and later in the elevator. The Applicant is seen on video helping the complainant to their room. The complainant testified that she had little memory of what happened in the room but did remember resisting when the Applicant was on top of her. She testified that she was digitally penetrated. The Applicant’s DNA was found on the complainant’s clothing. The Applicant later wrote a mutual friend and admitted that he was wrong but saying that he and the complainant were drunk.

4The Applicant testified and said that the complainant was a willing participant. The trial judge rejected his evidence and found that the Crown had proven that the complainant had not consented and that the Applicant knew that she had not.

5The evidence of the complainant’s high level of intoxication was a major problem for the defence at trial. The grounds of appeal argue an error made by the trial judge in the assessment of credibility and, in addition, a W.(D.) error. These are weak grounds of appeal in the context of the trial evidence. On the face of it, Justice Fellier’s reasons are free of factual or legal error.

6The third and last ground of appeal involves the Applicant’s mental health. He has was diagnosed in February of this year as “unspecified psychosis, early remission of schizophrenia spectrum disorder, depressive type, schizoaffective disorder.” Scans show a white mass in the Applicant’s frontal lobe. Medical records demonstrate a concerning mixture of paranoia, command hallucinations and other evidence of severe psychosis. On this basis, counsel for the Applicant argues in the notice of appeal that “his ability to appreciate and understand his actions at the time of the offence and at trial” were compromised. It is difficult to assess the viability of this ground of appeal although, given the strength of the Crown case at trial, it does not seem to be of great force.

7There is also a potential sentence appeal. At the sentence hearing, the defence asked for a conditional sentence. The Crown was opposed. The Applicant’s mental health issues could be argued to lend some weight to a conditional sentence disposition.

8If the record stopped there, given his lack of a previous criminal record and good family support, the interest in reviewability would likely supercede the need for finality and immediate enforcement. The grounds of appeal appear quite weak but, although unlikely in this case, that can change by the time of the appeal hearing. Given the relatively short sentence and the increased vulnerability to COVID in the jail setting, release may well have been appropriate.

9However, while on bail pending sentence, on February 1, 2021, just before his mental health diagnosis, the Applicant is alleged to have stabbed another man several times in the head. He is charged with attempt murder and, in the alternative, aggravated assault. The victim sustained non-life threatening injuries but 12 staples to the left side of his head were required to treat his wounds. The Applicant was released on a surety bail on this charge over the objections of the Crown. Counsel advises that there may well be a self-defence aspect to this allegation.

10Furthermore, on March 17, 2021 the Applicant was charged with simple assault for an alleged offence after he had checked himself into Oakville Trafalgar Memorial Hospital out of concern for his mental health. The Applicant was released on a surety bail on this charge as well.

11The Applicant’s sureties who act on the other matters as well, his father and sister, are good sureties. The Applicant is currently on five medications to treat his mental health issues, including anti-psychotics. Nonetheless, the concerns about his mental health condition and the past violence, are, given the early stage of his treatment, a matter of substantial concern. In my view, the public interest in enforceability has been substantially increased by the new allegations. There is now a public safety component where there was not one before. This, in turn, prompts a public confidence issue: see Oland at paras. 27, 39, 50.

12I am told that if the jury trial suspension is extended, there is every reason to believe that this appeal can be heard in June, a little more than one month from today. The transcripts for the appeal are complete. That is an important factor in this bail decision: Oland, at para. 48.

13In these circumstances, in my opinion, refusing bail but expediting the hearing of the appeal fairly balances reviewability and enforceability. For these reasons, the application for bail pending appeal is dismissed. There will be an order that the hearing of the appeal be expedited.

D.E. Harris J.