R. v. Mohsenipour

2020 BCCA 112 R. v. Mohsenipour

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Mohsenipour, 2020 BCCA 112 Date: 20200330 Docket: CA45957; CA45961 Docket: CA45957 Between: Regina Respondent And Kasra Mohsenipour Appellant - and - Docket: CA45961 Between: Regina Respondent And Tamim Albashir Appellant Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify the complainants referred to in this judgment by the initials N.V., K.C. and S.C. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice Fitch (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated January 29, 2018 (conviction) (R. v. Albashir, 2018 BCSC 736, Vancouver Docket 27174). Oral Reasons for Judgment Counsel for the Appellant Kasra Mohsenipour (CA45957) (in person on March 18 and via teleconference on March 19, 23 and 30, 2020): J. Narwal Counsel for the Appellant Tamim Albashir (CA45961) (via teleconference): M.E. Sandford Q.C. (on March 23 and 30, 2020 only) A. Tolliday (on March 19, 23 and 30, 2020 only) Counsel for the Respondent (via teleconference): L.A. Vizsolyi (on March 19, 23 and 30, 2020 only) Place and Date of Hearing: Vancouver, British Columbia March 18-19 and 23, 2020 Place and Date of

Judgment: Vancouver, British Columbia March 30, 2020 Summary: The appellants apply for bail pending the determination of their appeals from conviction on a number of prostitution‑related offences along with attempting to obstruct justice. The Crown did not oppose the release of either of the appellants. Held: Applications dismissed. The appeals are not frivolous and the appellants have established they will surrender themselves into custody. The appellants have not satisfied their onus to establish that their detention is not necessary in the public interest. Both appellants have a history of displaying disregard for previously imposed court orders. The release plans proposed by counsel were inadequate to guard against the risk of offence while on bail. The appellants have been convicted of very serious offences involving three complainants, one of whom they knew to be underage, over a substantial period of time. Combined with public safety concerns, the maintenance of public confidence in the administration of justice required the dismissal of both applications. The hearing of the appeals is expedited. FITCH J.A. (via teleconference): I. Introduction [1] The appellants, Kasra Mohsenipour and Tamim Albashir, apply for bail pending the determination of their appeals from conviction. The appellants were jointly charged and convicted of a number of prostitution‑related offences

along with attempting to obstruct justice in relation to the prosecution of those offences. Mr. Albashir received a global sentence of 10 years' imprisonment. Mr. Mohsenipour received a global sentence of nine years' imprisonment. [2] The applications are governed by s. 679(3) of the Criminal Code, R.S.C. 1985, c. C‑46 [Code]. By virtue of this provision, the appellants, who no longer benefit from the presumption of innocence, must establish on a balance of probabilities that: (1) their appeals are not frivolous; (2) they will surrender themselves into custody in accordance with the terms of a release order; and (3) that their detention is not necessary in the public interest. [3] The merit component of the test -- reflected in the appellants' obligation to establish that their appeals are not frivolous -- sets a fairly low bar. The second criterion is self‑explanatory. The public interest criterion, the central focus of these applications, has two components: (a) public safety; and (b) public confidence in the administration of justice: R. v. Oland, 2017 SCC 17 at paras. 23-26. [4] The public safety component of the third criterion tracks the familiar requirements of the so‑called "secondary ground" governing an accused's release pending trial. An applicant for bail pending appeal must establish that their detention is not necessary for the protection or safety of the public

having regard to all the circumstances including any substantial likelihood that they will, if released from custody, commit a criminal offence or interfere with the administration of justice. [5] The public confidence component of the third criterion involves weighing two competing interests: enforceability and reviewability. The enforceability interest reflects the general rule favouring the enforceability of judgments. Reviewability, on the other hand, reflects societal acknowledgement that, despite best efforts, prejudicial errors are sometimes committed in the course of trials and that a convicted person should be able to meaningfully engage the appellate review process before serving all or a significant portion of a custodial sentence: Oland at para.

25. Although the "not frivolous" test erects a low merits threshold, where an applicant for bail pending appeal demonstrates that the appeal has considerable merit, this may play an important role in assessing the weight to be given to the reviewability interest: Oland at para. 40. [6] Similarly, the public safety and public confidence components of the third criterion must not be treated as silos. Even in cases where the public safety threshold has been met by an applicant seeking bail pending appeal, residual public safety concerns remain relevant and may inform the public confidence analysis: Oland at paras. 27, 39. [7] The need to maintain public confidence in the administration of criminal justice will generally only be engaged on bail pending appeal applications involving convictions for serious offences: Oland at para.

29. I do not understand either the Crown or the appellants to suggest that the public confidence component is not engaged in the circumstances of this case. [8] The public confidence component must be measured through the eyes of a reasonable member of the public -- someone who is thoughtful, dispassionate, informed of the circumstances of the case, and respectful of society's fundamental values, including those that speak to collective and individual interests. Factors that inform public confidence include the strength of the grounds of appeal, the seriousness of the offence, and public safety: Oland at para.

47. Anticipated delay in the hearing of an appeal may be a factor that favours the reviewability interest and the making of an order admitting an offender to bail pending appeal. The list is not exhaustive. Many case‑specific considerations inform the public confidence component. [9] With this framework in mind, I turn to consider the material put before me on these applications and the positions of counsel. II. The Material Filed on the Applications and the Positions of the Parties in Brief [10] Mr. Mohsenipour's notice of application for bail pending appeal was filed on March 16, 2020, returnable on March 18, 2020. The Crown consented to the hearing of the application on short notice and, through Mr. Mohsenipour's counsel, conveyed to the Court its consent to the application itself. The application was supported by affidavits sworn by Mr. Mohsenipour and Mr. Mohsenipour's mother (his proposed surety), information pertaining to Mr. Mohsenipour's criminal record, and the proposed release terms. [11] On March 17, 2020, I advised counsel, through the registry of the Court, of my concern that the materials filed in support of the application were incomplete and insufficient to permit judicial assessment of the criteria governing release pending appeal or the suitability of the release conditions jointly proposed by counsel. [12] On March 18, 2020, counsel for Mr. Mohsenipour

appeared before me and filed additional materials in support of the application including a memorandum of argument, the reasons for judgment, the reasons for sentence and further particulars respecting Mr. Mohsenipour's criminal history. The application was put over to the following day. [13] On March 18, 2020, Mr. Albashir filed a notice of application for bail pending appeal returnable the following morning. The application was supported by a memorandum of argument, affidavits sworn by Mr. Albashir's counsel and Mr. Albashir's parents (his proposed sureties), information pertaining to Mr. Albashir's criminal record, and the jointly proposed release terms. [14] Both of the appellants seek a release order on the promise of their sureties to pay $250,000 if they fail to comply with a condition of the order. Both orders contemplate release on house arrest terms. [15] On the same day, the Crown filed a brief memorandum of argument in response to Mr. Mohsenipour's application confirming that it was not opposed to his release on bail pending appeal on the conditions jointly proposed by counsel. [16] Both matters came before me on March 19, 2020. The Crown conveyed its verbal consent to the hearing of Mr. Albashir's application on short notice and advised the Court that it was not opposed to his release on bail pending appeal on the conditions jointly proposed by counsel. [17] I

conveyed to counsel my continuing concern about the existence of informational gaps on issues material to the application of the statutory criteria governing release. Given my preliminary assessment of the public interest concerns associated with the release of either of the appellants, I suggested that this case might be one in which "a more pointed consideration of the strength of [the] appeal" might be required: Oland at para.

41. In addition, I sought further information relating to: (a) the suitability of the proposed release terms; (b) the suitability of the proposed sureties; (c) the circumstances surrounding the appellants' conviction for attempting to obstruct justice; (d) the appellants' criminal histories and their compliance with previously imposed court orders; and (e) the availability of electronic monitoring as a condition of bail should release be granted. I also sought an explanation for the delay in the prosecution of these appeals and, in particular, the failure of the Crown to file its factums (given that the appellants filed their factums in July 2019) and the failure to have the appeals listed for hearing. I also conveyed to counsel that, despite the consent of the Crown, I wished to hear full arguments on both applications. [18] In light of the concerns I expressed and my expectation as to the manner in which the applications would proceed, counsel asked that the matter be put over to Monday, March 23, 2020, with leave to file additional materials by the end of the day on Friday, March 20, 2020. [19] On March 20, 2020, Mr. Mohsenipour provided the following additional materials: (a) supplementary written submissions; (b) the reasons for judgment of Justice Fleming detaining him pending trial on the secondary and tertiary grounds set out in s. 515(10)(b) and (c) of the Code; (c) a

statement made by Mr. Mohsenipour's mother addressing her misconduct in attempting to cover up her son's breach of a previous court order imposed in an earlier and unrelated matter; (d) a Form 12 Surety Declaration executed by Mr. Mohsenipour's mother pursuant to s. 515.1 of the Code; and (e) a judgment given on March 18, 2020, by a United States District Court judge reconsidering an earlier detention order in light of the COVID‑19 pandemic and releasing an accused person pending trial on the ground that the circumstances in New York State detention centres -- including the suspension of legal visits -- warranted a temporary release order to enable the accused to prepare his defence pursuant to 18 U.S.C. § 3142(i). [20] Also on March 20, 2020, Mr. Albashir provided additional materials, including: (a) supplementary written submissions; (b) the reasons for judgment of (then) Associate Chief Justice Cullen detaining him pending trial on the secondary and tertiary grounds; (c) additional information respecting his criminal history; and (d) R. v. J.S., 2020 ONSC 1710, a case involving a pre‑trial bail review in which the reviewing judge held that the elevated risk to detained accused from COVID‑19 was a factor to be considered in assessing the tertiary ground. In J.S., the judge took judicial notice of the increased health risks associated with institutional confinement. This, in

conjunction with a new release plan, was found to warrant the accused's release on strict conditions. [21] The applications were argued on March 23, 2020, by teleconference. Judgment was reserved to today's date. [22] Against this background, I am satisfied that the parties had a full opportunity to address my preliminary concerns before the applications were argued. III. Background [23] The appellants were jointly charged with prostitution‑related offences in relation to three women -- one of whom was underage at the relevant time -- and one count of attempting to obstruct justice arising out of their efforts, after Mr. Albashir had been arrested, to dissuade one of the women from testifying by bribing her with money. The alleged offences span a period from May 15, 2013, to April 16, 2016. (a) The Denial of Bail Pending Trial [24] While I recognize that it is the circumstances now prevailing and the legislative framework set out in s. 679(3) that govern the determination of these applications, important context relevant to the criteria I am obliged to apply can be gleaned from the two decisions denying the appellants bail pending trial. (i) Mr. Albashir [25] When Mr. Albashir's application for bail pending trial was heard, he was single with no dependents. While Mr. Albashir did not file an affidavit in support of the application before me -- a deficiency not explained by

counsel and not expressly attributed to the COVID‑19 pandemic -- it would appear that his status has not changed. He is a Canadian citizen. [26] I will briefly address the particulars of Mr. Albashir's criminal record. On April 27, 2010, while accompanied by two other males, he stole some articles of clothing from a retail store. A store clerk who pursued the group was bear sprayed. The thieves sped away from the scene but crashed into another vehicle. The stolen clothing and a can of bear spray were found in the getaway vehicle. Mr. Albashir was arrested in the vehicle and charged with robbery. He was 19 years of age at the time of this offence. [27] On May 31, 2010, while on bail for the alleged robbery, Mr. Albashir was charged with being in possession of counterfeit money. He was 20 years of age. [28] On July 15, 2010, Mr. Albashir, having been convicted of theft under in relation to the April 27, 2010 incident, was given a suspended sentence and placed on a 12‑month probation order. [29] On August 16, 2010, Mr. Albashir was charged with robbery for stealing a phone in the course of which he communicated threats of violence. At the time of this offence, he was on bail for the May 31, 2010 offence, and probation for the April 27, 2010 offence. [30] On October 25, 2011, Mr. Albashir was sentenced to a six‑month conditional sentence order for possessing counterfeit money. [31]

Mr. Albashir appears to have been living with his parents throughout this time, including after the conditional sentence was imposed. One of the terms of the conditional sentence order required him to observe a curfew. On November 9, 2011, the police conducted a curfew check and were advised by Mr. Albashir's father that he was not home "because he had court in the morning and wanted to be closer to the courthouse so he was not late." Mr. Albashir then called home and advised that he was out doing community service. At the relevant time, Mr. Albashir did not have permission from his bail supervisor to be out of his residence. A judicial determination was subsequently made that Mr. Albashir had breached his conditional sentence order. [32] On November 10, 2011, Mr. Albashir was convicted of theft under in relation to the August 16, 2010 offence. He received a suspended sentence and 18 months' probation. [33] Mr. Albashir applied for but was denied bail pending trial on three occasions. On the first occasion he was denied bail on the secondary ground and on the second and third occasions (after being charged with attempting to obstruct justice) he was denied bail on the secondary and tertiary grounds. The third bail application was heard by Cullen A.C.J. pursuant to s. 523(1.2) of the Code after a direct indictment was preferred on December 22, 2016. [34] The release plan put

before Cullen A.C.J. is similar to the release plan put before me on this application. [35] In his March 10, 2017 reasons for judgment denying bail, the Cullen A.C.J. remarked, "[i]t does not appear that the applicant's parents had much control over him when he was younger". He found that "the applicant has demonstrated indifference to court orders" which he considered to "weigh heavily against his contention that he would abide by strict terms of release." He concluded that if Mr. Albashir were released, "there is a substantial likelihood that he will commit a criminal offence or interfere with the administration of justice that would imperil the protection or safety of the public." [36] Mr. Albashir's two brothers also have criminal records. I am advised that his younger brother was convicted in 2015 for robbery and theft over, while his twin brother was convicted in 2013 of attempted robbery. I mention this because Mr. Albashir's younger brother will also be residing with his parents in the same residence as Mr. Albashir if release is granted. (ii) Mr. Mohsenipour [37] At the time of his bail application pending trial and, I believe, now, Mr. Mohsenipour is also single with no dependents. [38] A provincial court judge detained Mr. Mohsenipour pending trial on the secondary and tertiary grounds on an information charging him with prostitution‑related offences alleged to have

been committed with respect to only one of the complainants -- K.C. [39] After the direct indictment was preferred, Mr. Mohsenipour had a further bail hearing before Fleming J. Reasons for judgment detaining Mr. Mohsenipour on the secondary and tertiary grounds were given on March 6, 2017. The reasons provide important background information regarding Mr. Mohsenipour's antecedents and are of assistance in assessing his suitability for bail pending appeal and the suitability of his mother to act as his surety. The summary that follows is taken from those reasons and, to a lesser extent, from material filed by Mr. Mohsenipour in this Court. [40] I take note of the fact that at the time of the bail application before Fleming J., the trial was scheduled to start on June 1, 2017. Mr. Mohsenipour proposed that he be released on a $100,000 surety bail on terms requiring that he reside at his parents' home in Vancouver, British Columbia. [41] Mr. Mohsenipour was then 24 years of age. He was born in Iran but moved to Canada in about 2000. He holds dual Canadian and Iranian citizenship. [42] The bail judge noted that in 2010 Mr. Mohsenipour was found guilty as a youth for committing the following offences: (a) uttering threats to cause death or bodily harm; (b) possession of a weapon; (c) two counts of robbery; and (d) breach of an undertaking. The judge also noted that Mr. Mohsenipour

breached the terms of a deferred custody and supervision order imposed under the Youth Criminal Justice Act, S.C. 2002, c. 1. [43] Information regarding the circumstances of the offences committed by Mr. Mohsenipour as a youth is somewhat lacking. It would appear, however, that both of the robberies involved threats of violence made by Mr. Mohsenipour in the course of stealing electronic devices from other teenagers. Mr. Mohsenipour was noted to have been on bail when the robbery offences were committed. [44] On July 20, 2010, Mr. Mohsenipour was sentenced to a six‑month deferred custody and supervision order to be followed by a 12‑month intensive support and supervision order on a variety of terms, including a curfew and that he not associate with Mr. Albashir. [45] On August 10, 2010, Mr. Mohsenipour was arrested after he was observed speaking to Mr. Albashir in violation of the terms of the deferred custody and supervision order. He was released on the same terms. [46] On December 31, 2010, Mr. Mohsenipour was stopped by the police while driving a van in breach of his curfew. He supplied a false name and date of birth. The following day, Mr. Mohsenipour's mother attended the police station to claim the van. She denied that her son had been driving the van the night before, and said (falsely) that he had been with her all evening. When Mr. Mohsenipour was arrested the

following day, he told the arresting officer he was not worried because his mother would say he was with her. [47] On January 11, 2011, Mr. Mohsenipour pleaded guilty (as an adult) to obstructing a peace officer and admitted to breaching the terms of the deferred custody and supervision order. [48] After reviewing the circumstances of the allegations, the bail judge concluded that Mr. Mohsenipour's detention was necessary for the protection or safety of the public pursuant to s. 515(10)(b) of the Code: [47] I have determined there is not only a risk that Mr. Mohsenipour will commit an offence if he is released, but a substantial risk he will attempt to obstruct justice or interfere with the administration of justice, based on the circumstances of the alleged pimping offences, which span a prolonged period and involve three young, vulnerable complainants, and the circumstances of the alleged attempt to obstruct justice offence which involves influencing K.C., to recant her statement and end her cooperation with police. [50] My determination is also based on Mr. Mohsenipour's criminal record. Although dated, it establishes he did not abide by court orders and committed further violent offences while bound by court orders, which remains relevant when assessing the risk he will commit offences or interfere with the administration of justice. [53] I conclude the risk presented by

Mr. Mohsenipour constitutes a danger to public safety in general, or specific victims or witnesses. [54] I am not persuaded the release plan proposed by Mr. Mohsenipour would reduce the risk he poses to an acceptable level. His failure to abide by court orders in the past included an undertaking to a responsible person, signed by his parents, placing them at risk of being criminally charged with wilfully failing to report his breach of terms. Further, both Mr. Mohsenipour and Mr. Albashir were prohibited by a protective intervention order from any contact with N.V. [the underage complainant] while she was working as a prostitute for both of them. The transcripts show that Mr. Albashir repeatedly told Mr. Mohsenipour there was a no-contact order in place that included him and K.C. while they discussed and Mr. Mohsenipour executed plans to contact, meet with, and arrange for K.C. to recant her statement and end her cooperation with police. [55] It is unclear from Mr. Mohsenipour's submissions how long he lived at home with his parents before he was arrested. However, the evidence demonstrates that his parents were not able to control his behaviour in the past when he was subject to court orders. The evidence also suggests his mother attempted to cover up his breaches of curfew by denying circumstances he later admitted to. [56] I am not satisfied there are terms that could

reasonably reduce the risk to safety Mr. Mohsenipour poses. [57] I am satisfied therefore the Crown has established the accused's detention is justified on the secondary ground. [49] In addressing the tertiary ground for detention set out in s. 515(10)(c) of the Code, the judge said this: [58] Turning to the tertiary ground, the ultimate question is whether Mr. Mohsenipour's detention is necessary to maintain public confidence in the administration of justice. [Discussion of the strength of the Crown's case is omitted.] [64] The second factor listed is the gravity of the offences. Several of the counts in the Indictment are brought pursuant to the amendments to the Code enacted in response to Canada (A.G.) v. Bedford, 2013 SCC 72. The amendments reflect Parliament's view of prostitution as a form of sexual exploitation involving extremely dangerous activities that pose a risk of violence and psychological harm to those involved, mostly women and children. [67] When assessing the third factor, the circumstances surrounding the commission of the offence, St‑Cloud [R. v. St‑Cloud, 2015 SCC 27] indicates the Court should consider, among other things, whether the offence is violent, heinous or hateful, involved a victim that is vulnerable, the extent to which the accused participated, if committed by several people, and aggravating and mitigating circumstances that could be taken

into account at sentencing. [68] In my view, the alleged circumstances underlying the offences with which Mr. Mohsenipour is charged with committing are very serious. The various pimping offences are alleged to have occurred over a prolonged period involving three complainants, two young women, and a third, a young person, for the first two years, substantial ongoing economic exploitation, and a high degree of control over the sexual exploitation of K.C and S.C. (b) The Trial and the Reasons for Judgment [50] At the conclusion of a 38‑day trial presided over by a judge of the Supreme Court of British Columbia sitting without a jury, the appellants were convicted, jointly or individually, of the following counts: Count 1 Tamim ALBASHIR and Kasra MOHSENIPOUR, from the 15th day of May, 2013 to the 1st day of July, 2013, inclusive, at or near Coquitlam, in the Province of British Columbia, did procure or attempt to procure N.V. to become a prostitute, contrary to Section 212(1)(d) of the Criminal Code. Count 2 Tamim ALBASHIR and Kasra MOHSENIPOUR, from the 1st day of July, 2013 to the 1st day of July, 2014, inclusive, at or near Vancouver, in the Province of British Columbia, for the purposes of gain, did exercise control, direction or influence over the movements of N.V. in such a manner as to show that he was aiding, abetting or compelling N.V. to engage in or carry on

prostitution, contrary to Section 212(1)(h) of the Criminal Code. Count 3 Tamim ALBASHIR and Kasra MOHSENIPOUR, from the 1st day of July, 2013 to the 1st day of July, 2014, inclusive, at or near Vancouver, in the Province of British Columbia, lived wholly or in part on the avails of prostitution of N.V., a person under the age of eighteen years and for the purpose of profit, aided, abetted, counselled or compelled N.V. to engage in or carry on prostitution with any person and used, threatened to use or attempted to use violence, intimidation or coercion in relation to N.V., contrary to Section 212(2.1) of the Criminal Code. Count 4 Tamim ALBASHIR, from the 26th day of December, 2015 to the 23rd day of January, 2016, inclusive, at or near Vancouver, in the Province of British Columbia, for the purpose of facilitating an offence under subsection 286.1(1), did recruit, hold, conceal or harbour N.V., or did exercise control, direction or influence over her movements, contrary to section 286.3(1) of the Criminal Code. Count 5 Tamim ALBASHIR, from the 26th day of December, 2015 to the 23rd day of January, 2016, inclusive, at or near Vancouver, in the Province of British Columbia, did receive a financial or other material benefit in relation to N.V., knowing that it was obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1) contrary

to section 286.2(1) of the Criminal Code. Count 7 Tamim ALBASHIR and Kasra MOHSENIPOUR, from the 15th day of March, 2014 to the 5th day of December, 2014, inclusive, at or near Vancouver, in the Province of British Columbia, and at or near Edmonton, in the Province of Alberta, for the purpose of gain, did exercise control, direction or influence over the movements of K.C. in such manner as to show that he was aiding, abetting or compelling that person to engage in or carry on prostitution with any person, contrary to Section 212(1)(h) of the Criminal Code. Count 8 Tamim ALBASHIR and Kasra MOHSENIPOUR, from the 6th day of December, 2014 to the 16th day of April, 2016, at or near Vancouver, in the Province of British Columbia, and at or near Edmonton, in the Province of Alberta, did receive a financial or other material benefit in relation to K.C., knowing that it was obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1) contrary to section 286.2(1) of the Criminal Code. Count 9 Tamim ALBASHIR and Kasra MOHSENIPOUR, from the 6th day of December, 2014 to the 16th day of April, 2016, at or near Vancouver, in the Province of British Columbia, and at or near Edmonton, in the Province of Alberta, for the purpose of facilitating an offence under subsection 286.1(1), did exercise control, direction or influence over the movements of

K.C., a person who offered or provided sexual services for consideration, contrary to section 286.3(1) of the Criminal Code. Count 10 Tamim ALBASHIR and Kasra MOHSENIPOUR, from the 1st day of August, 2014 to the 16th day of April, 2016, inclusive, at or near Vancouver, in the Province of British Columbia, and at or near Edmonton, in the Province of Alberta, did unlawfully recruit, transport, transfer, receive, hold, conceal or harbor K.C., or did exercise control, direction or influence over the movements of K.C., for the purpose of exploiting her or facilitating her exploitation, contrary to Section 279.01(1) of the Criminal Code. Count 11 Tamim ALBASHIR and Kasra MOHENIPOUR, from the 6th day of December, 2014 to the 16th day of April, 2016, inclusive, at or near Vancouver, in the Province of British Columbia, and at or near Edmonton, in the Province of Alberta, did receive a financial or other material benefit in relation to K.C., knowing that it is obtained by or derived directly or indirectly from the commission of an offence under subsection 279.01(1) of the Criminal Code, contrary to Section 279.02(1) of the Criminal Code. Count 12 Tamim ALBASHIR from the 15th day of April, 2014 to the 15th day of June, 2014, inclusive, at or near Vancouver, in the Province of British Columbia, did procure or attempt to procure S.C. to become a prostitute, contrary to Section 212(1)(d) of

the Criminal Code. Count 14 Tamim ALBASHIR, Kasra MOHSENIPOUR from the 5th day of May, 2014 to the 5th day of December, 2014, inclusive, at or near Vancouver, in the Province of British Columbia, and at or near Edmonton, in the Province of Alberta, for the purposes of gain, exercised control, direction or influence over the movements of S.C., in such a manner as to show that he was aiding, abetting or compelling that person to engage in or carry on prostitution, contrary to Section 212(1)(h) of the Criminal Code. Count 15 Tamim ALBASHIR, Kasra MOHSENIPOUR from the 6th day of December, 2014 to the 31st day of August, 2015, inclusive, at or near Vancouver, in the Province of British Columbia, and at or near Edmonton, in the Province of Alberta, did receive a financial or other material benefit in relation to S.C., knowing that it was obtained by or derived directly or indirectly from the commission of an offence under subsection 286.1(1) contrary to section 286.2(1) of the Criminal Code. Count 16 Tamim ALBASHIR, Kasra MOHSENIPOUR from the 6th day of December, 2014 to the 31st day of August, 2015, inclusive, at or near Vancouver, in the Province of British Columbia, and at or near Edmonton, in the Province of Alberta, for the purpose of facilitating an offence under subsection 286.1(1), did exercise control, direction or influence over the movements of S.C., a person who offered

or provided sexual services for consideration, contrary to section 286.3(1) of the Criminal Code. Count 17 Tamim ALBASHIR, Kasra MOHSENIPOUR from the 15th day of May, 2014 to the 31st day of August, 2015, inclusive, at or near Vancouver, in the Province of British Columbia, and at or near Edmonton, in the Province of Alberta, did recruit, transport, transfer, receive, hold, conceal or harbor S.C., or exercised control, direction or influence over the movements of S.C., for the purpose of exploiting her or facilitating her exploitation, contrary to Section 279.01(1) of the Criminal Code. Count 18 Tamim ALBASHIR, Kasra MOHSENIPOUR from the 6th day of December, 2014 to the 31st day of August, 2015, inclusive, at or near Vancouver, in the Province of British Columbia, and at or near Edmonton, in the Province of Alberta, did receive a financial or other material benefit in relation to S.C., knowing that it was obtained by or derived directly or indirectly from the commission of an offence under [subsection] 279.01(1) of the Criminal Code, contrary to Section 279.02(1) of the Criminal Code. Count 19 Tamim ALBASHIR, Kasra MOHSENIPOUR from the 23rd day of April, 2016 to the 2nd day of August, 2016, inclusive, at or near Port Coquitlam, Vancouver and Burnaby, in the Province of British Columbia, did wilfully attempt to obstruct, pervert or defeat the course of justice by attempting to

dissuade K.C. by threats, bribes or other corrupt means from giving evidence in a judicial proceeding, contrary to Section 139(2) of the Criminal Code. [51] The trial judge's lengthy oral reasons for judgment (383 paragraphs) were delivered on January 29, 2018. [52] Counts 1-5 involve the underage complainant, N.V. [53] Counts 7-11 involve the complainant, K.C. [54] Counts 12 and 14-18 involve the complainant, S.C. [55] The trial judge found that the appellants were jointly involved in an unlawful pimping‑related venture that involved the "pimping" of females in the sex trade. He found that the co‑conspirators' exception to the hearsay rule applied such that the acts and declarations of any one of the co‑venturers, if made in furtherance of the conspiracy, were admissible against the others. [56] I will deal only briefly with the evidence adduced at trial upon which the judge placed reliance. [57] N.V. first engaged in the sex trade when she was 14 years old. This initial engagement involved only a few "dates". She was introduced to the appellants when she was 15 years old and in Grade 10. She was asked if she wanted to work for them in the sex trade. She agreed to do so. She lied about her age, telling the appellants she was 20 years old. N.V. was set up by the appellants in an apartment. The appellants engaged her in a photoshoot for advertising purposes. They set the fees

for her services and arranged for all of her "dates". She was required to work six days per week. She was permitted to leave the apartment to get food in the morning but was required to return immediately thereafter. She was paid one‑third of the money she earned. [58] The police became aware that N.V. was involved in the sex trade and attempted more than one intervention. The police advised the appellants that N.V. was only 16 years of age when the first intervention was attempted. Mr. Albashir said that he thought N.V. was 18. After this attempted intervention, N.V. was moved by the appellants to a downtown hotel paid for by Mr. Mohsenipour. [59] The second attempted intervention involved serving the appellants with a notice of application for a protective intervention order pursuant to s. 28 of the Child, Family and Community Service Act, R.S.B.C. 1996, c.

46. The application was styled, "In the matter of the child: N.V." It was explained to the appellants that N.V. was a youth and that if the order was granted, they would be subject to arrest if they breached its terms. The trial judge found that the appellants were dismissive of the information that was relayed to them. On September 12, 2013, an order was granted by a provincial court judge directing the appellants to have no contact with N.V. The order was served on the appellants. [60] The trial judge found that, in breach of that order, the appellants continued to engage N.V. in the sex trade, housing her in rented apartments. By this time, she was addicted to heroin. [61] In 2014, Mr. Albashir ended the appellants' relationship with N.V. because she brought a boyfriend to the apartment against Mr. Albashir's wishes. [62] For a time, N.V. worked independently as an escort. [63] In 2015, Mr. Albashir asked N.V. if she wanted to resume working for him in downtown Vancouver, telling her that she could make up to $700 per day. N.V.'s boyfriend engaged in text messages with Mr. Albashir, essentially telling him to leave N.V. alone. As reflected in the reasons of Cullen A.C.J., Mr. Albashir initially offered to pay N.V.'s boyfriend $8,000 to let N.V. go and then threatened him when he refused. The threat was conveyed in a text message in which Mr. Albashir said to N.V.'s

boyfriend, "[Y]ou don't know who you are talking to Just let her go or you will see what happens". N.V. eventually agreed to go back to work with the appellants. [64] N.V. testified that on one occasion while she was working for Mr. Albashir, he threatened her with what appeared to be a gun. He did so when N.V. attempted to defy him by leaving the apartment to take her mother out for lunch. Mr. Albashir told her she could not leave because she belonged to him. The judge found that Mr. Albashir told her that she was his "bitch". [65] Without addressing the factual and legal analysis of the trial judge, I will summarize his findings in relation to the counts involving N.V. The judge found that, from the beginning, the appellants imposed rules about what N.V. could and could not do, and directed how she would provide sexual services to clients and the number of clients she would service. They controlled when and where she would work. They controlled her access to the apartment. They took most of the money she earned from the sex trade. They told her she could not have boyfriends and could not leave the apartment without their permission. They took these measures to ensure N.V.'s continued involvement in the sex trade. They did so for their own financial benefit. Further, the judge found that the appellants knew N.V. was under 18 years of age. [66] With respect to Mr. Albashir, the

judge found that he threatened N.V. with a real or imitation gun, intimidated her through displays of anger, and threatened to throw her dog off of a balcony. With respect to Mr. Mohsenipour, the judge found that he aided and abetted the actions of Mr. Albashir and was in a joint criminal venture with Mr. Albashir at the relevant time. [67] K.C. was 27 years old at the time of trial. She started working as an escort in 2008 or 2009. In 2014, she received a message from Mr. Albashir who said he was interested in being her pimp along with Mr. Mohsenipour. Mr. Albashir set out the terms of the proposed agreement including that K.C. would retain 40% of the money she received from providing sexual services to clients. K.C. eventually agreed to the arrangement. She was taken by the appellants to an apartment occupied by another female escort. [68] On one occasion, Mr. Albashir and K.C. got into an argument. She testified that, on this occasion, he punched her in the face, leaving her with a black eye. On other occasions, she said that Mr. Albashir grabbed her by the hair, put his hands around her neck and cut her with his fingernails. On yet another occasion, Mr. Albashir grabbed K.C. by the throat, threw her to the ground and put his knee on her face when she refused to do an outcall. [69] There was a considerable body of evidence before the judge, upon which he relied, confirming

Mr. Albashir's assaults on K.C. In one text message, Mr. Albashir was angry that K.C. lost a client by making the client wait. He said to her, "u continue to disrespect me" and, "ur face is swollen cuz u wanted it that way". Photographic evidence was introduced at trial confirming at least some of K.C.'s injuries. Other text messages sent by Mr. Albashir to K.C. constituted admissions by him that he hit her because he needed to defend his pride as "the boss". S.C. also testified that she saw many incidents of violence between Mr. Albashir and K.C. [70] With respect to the charges relating to K.C., the judge found that the appellants imposed rules as to when, where and how K.C. would provide her services. He found that punishments -- physical, emotional or financial -- were imposed or threatened for not adhering to the rules. The judge further found that: (a) the appellants recruited K.C.; (b) harboured her by providing her a place to live; (c) transported her to different locations; and (d) exercised direction and influence over her movements by telling her where to go and when she could leave, and setting rules about her working conditions including her hours and days of work. [71] S.C. was 27 years old at the time of trial. She is a member of a First Nations community. K.C. introduced her to the appellants. S.C. met with Mr. Albashir and initially said that she would not be

able to do the work. She later decided otherwise after being supplied, at her request, with alcohol. She worked out of an apartment for about three weeks. She was required to tell Mr. Albashir when she was leaving the apartment to eat. She was told that she had to provide sexual services when she was menstruating, something that she did not want to do. She was also required to continue working when she was sore. [72] After about three weeks, S.C. left the apartment. Mr. Albashir called her, telling her that he wanted her to return to work. When she returned, the appellants demanded that she work for two days without pay as a form of "tax". [73] Thereafter, the judge found that S.C. was required to work as an escort under what amounted to oppressive and inhumane conditions. She was required to work six days per week. Her requests for more time off to visit her son were denied. Financial quotas were established that required S.C. to make $1,000-$2,000 per day. S.C. was required to be on call 19 hours per day. She was not permitted to have family and friends visit her in the apartment. [74] On one occasion, Mr. Mohsenipour pointed a gun at S.C. and threatened to kill her. Mr. Albashir warned her after this incident that she should not disrespect Mr. Mohsenipour or he would react accordingly. She testified that Mr. Albashir threatened to kill her dog and eventually took her dog

away from her. The trial judge found that there was an atmosphere created by the appellants which carried the threat of violence, physical or psychological, against her. [75] K.C. and S.C. also witnessed the appellants beating another female escort. [76] Some additional background is required to put in context the conviction of the appellants for attempting to obstruct justice (Count 19). [77] Mr. Albashir was arrested on April 23, 2016. Mr. Mohsenipour was not arrested until September 29, 2016. [78] When Mr. Albashir was arrested, he was charged with offences involving only K.C. He was detained on an order requiring him to abstain from communicating with Mr. Mohsenipour and K.C. While subject to this no‑contact order, and, it would seem, the day after his detention, Mr. Albashir began discussing with Mr. Mohsenipour, in recorded telephone calls made from the North Fraser Pretrial Centre, what they needed K.C. to do to recant her statement. They discussed how to approach K.C., their plan to give her $5,000 for agreeing to recant her allegations and, as I understand it, their plan to have her phone changed so she could not be contacted by the police. Arrangements were made to have K.C. speak with a lawyer. In one of the calls, Mr. Albashir said to Mr. Mohsenipour, "Hopefully if I get out, we'll go back to work again." [79] K.C. testified that Mr. Mohsenipour asked her to recant

her statement to the police in exchange for the payment of $5,000. In a recorded call from the North Fraser Pretrial Centre, Mr. Mohsenipour told Mr. Albashir that he had asked K.C. to lie. K.C. testified that she was picked up in a car driven by Mr. Mohsenipour and paid $2,500. Mr. Mohsenipour told her she would get another payment of $2,500 when Mr. Albashir was released from custody. The judge concluded that the actions of the appellants were clearly an attempt to pervert or defeat the course of justice. [80] Counts 6 and 13, charging the appellants with living on the avails of prostitution contrary to the former s. 212(1)(j) of the Code, were quashed on the ground that the direct indictment was preferred after the suspension of the declaration of invalidity made in Canada (Attorney General) v. Bedford, 2013 SCC 72, had expired. The Crown appealed the acquittal of the appellants on these two counts. That appeal was heard by a division of this Court in December 2019. Judgment is on reserve. In the event that the appeal is allowed on these two counts, the Crown advises it will not be seeking an additional period of imprisonment. (c) Reasons for Sentence [81] Sentence was imposed on February 15, 2019. The sentencing proceedings were delayed for more than one year to accommodate a successful constitutional challenge to a mandatory minimum sentence provided for in s. 212(2.1) of

the Code. [82] In his reasons, the sentencing judge characterized the circumstances of the offences as "corrupt, very serious, and egregious." He found that the appellants maintained control over the complainants in an environment of verbal abuse, threats of violence, and, in some instances, direct violence against the complainants or other escorts working with them. He found the appellants to have been significantly enriched by their involvement in exploiting women. [83] The judge found Mr. Albashir to be the leader. He concluded that Mr. Mohsenipour accepted Mr. Albashir's leadership role. [84] The judge found that it was Mr. Albashir who actively convinced N.V. to work for the appellants in the sex trade. He concluded that Mr. Mohsenipour was present for the discussion. He found that N.V.'s young age and drug addiction made her particularly vulnerable. Moreover, he found that N.V. entered into the arrangement under the impression that she and Mr. Albashir would have a romantic relationship, while Mr. Albashir's intention was simply to use her for his own financial gain. He found that N.V. was forced to perform some sexual services with which she was uncomfortable. [85] The judge found that Mr. Albashir assaulted K.C. on a number of occasions. He concluded that while Mr. Mohsenipour was not directly involved in the assaults, he was present when K.C. was told what had happened

to another sex‑trade worker who did not obey the rules. Further, the judge found that the appellants were involved in an unlawful common venture and knew how the other operated, including by resorting to violence. [86] The judge reviewed the circumstances in which S.C. was forced to work for the appellants. He found that Mr. Mohsenipour pointed a gun at her head and threatened to kill her. He found that S.C. watched the appellants beat another woman who was working for them. He accepted her evidence that Mr. Albashir threatened to kill her son and, later, her dog. He also accepted that her dog was eventually taken from her. He concluded that the appellants exploited S.C., who was vulnerable, for personal gain. [87] The judge imposed concurrent sentences for the offences committed in relation to each individual complainant, but made those sentences consecutive to the sentences imposed for the offences committed against the other two complainants. Consecutive sentences were also imposed on the obstructing justice count. [88] Employing this methodology, the judge concluded that a global sentence of 12 years and three months' imprisonment would result for Mr. Albashir, while a 10‑year global sentence would result for Mr. Mohsenipour. Applying the totality principle, the judge reduced the sentences by imposing a global 10‑year custodial sentence upon Mr. Albashir, and a global

nine‑year custodial sentence upon Mr. Mohsenipour. [89] Both appellants were given credit for time served in pre‑sentence custody at a ratio of 1.5 to 1. The effect of the sentences is to require Mr. Albashir to serve a further five years' and nine months' imprisonment and Mr. Mohsenipour to serve a further five years' and five months' imprisonment. [90] The appellants will be eligible to apply for day parole in June of this year and full parole either at the end of this year or early in 2021. They submit that the Parole Board of Canada is unlikely to give favourable consideration to an application for parole while their appeals remain outstanding. IV. The Position of the Appellants (a) Both Appellants [91] Both appellants argue that I should give considerable weight to the fact that the Crown is not opposing release pending appeal. I accept that the position of the Crown is an important factor to be considered. [92] Both appellants submit that there is no reason to doubt that they will surrender themselves into custody in accordance with the terms of a release order. They emphasize that they have stable housing, roots in the community and strong family support. [93] The appellants say that their grounds of appeal are strong and clearly surpass the "not frivolous" standard. [94] In addition to the grounds of appeal advanced in their factums, the appellants advise that the Crown

has now supplied a large volume of post‑conviction disclosure, including material they say ought to have been disclosed at trial. [95] I am told that much of the additional disclosure relates to the involvement of James Fisher, a former detective with the Counter Exploitation Unit of the Vancouver Police Department, in the investigation of the appellants. I am advised that Mr. Fisher was the lead investigator on the attempt to obstruct justice count and that he had a large number of interactions with the three complainants. [96] Mr. Fisher pleaded guilty in 2018 to two counts of breach of trust and one count of sexual exploitation by kissing two other vulnerable complainants engaged in the sex trade. He was sentenced to 20 months' imprisonment. His sentence appeal to this Court was dismissed in reasons indexed as 2019 BCCA 33. One of the two complainants in Mr. Fisher's case introduced N.V. to the appellants. [97] Although the conduct of Mr. Fisher was a live issue at the appellants' trial, a considerable volume of additional disclosure was made only after the trial. I am advised that the Report to Crown Counsel relating to Mr. Fisher was disclosed for the first time in February 2020. I am further advised that a very substantial volume of material was disclosed on March 18, 2020. I am told that investigations are ongoing with respect to the conduct of other police officers who

had involvement with the three complainants in this case. [98] Although the non‑disclosure of material said to attract an unfulfilled Stinchcombe (R. v. Stinchcombe, [1991] 3 S.C.R. 326) disclosure duty prior to trial has not yet been framed as a ground of appeal, the appellants advise that the disclosure recently made by the Crown makes it inevitable that appellate proceedings will be further delayed. They anticipate amending their notices of appeal and filing fresh evidence applications and supplementary factums advancing a further ground of appeal that the Crown failed in its disclosure obligation in circumstances where there is a reasonable possibility that the undisclosed information could have made a difference to the outcome or impaired the overall fairness of the trial process: R. v. Dixon, [1998] 1 S.C.R. 244; R. v. Taillefer, 2003 SCC 70; R. v. Illes, 2008 SCC 57. [99] The appellants submit that this proposed ground of appeal challenges the propriety of their convictions on all of the counts. They advise that disclosure has now been made of the fact that K.C. was provided with financial benefits by the Vancouver Police Department and met with investigating officers on occasions that were not recorded in their notes. [100] Mr. Mohsenipour emphasizes that further disclosure may yet be provided. He also submits that what has been disclosed to date will undoubtedly lead

to further disclosure requests and, quite possibly, judicial oversight of the manner in which newly disclosed materials have been vetted. [101] The appellants submit that confining them to a correctional facility during the COVID‑19 health crisis is not in the public interest and this is a circumstance that favours the granting of bail in this case. They rely on J.S. in support of this argument. [102] Mr. Mohsenipour also suggests that the time it will take to develop the non‑disclosure ground of appeal will be impacted by the COVID‑19 pandemic. He says that preparing this ground of appeal will likely require his involvement in a way more akin to pre‑trial preparation than to the type of preparation that would ordinarily be required for an appeal. In this regard, he notes that in R. v. Myers, 2019 SCC 18 at para. 27, the Court observed in the context of addressing pre‑trial detention that the denial of bail can have a detrimental impact on an accused's ability to prepare a defence. Mr. Mohsenipour's counsel further advised me of his understanding that visits between counsel and federally incarcerated inmates have been suspended as a consequence of the COVID‑19 pandemic. [103] The appellants emphasize the length of time that has passed since their amended notices of appeal and factums were filed (Mr. Albashir filed his amended notice of appeal and factum on July 23, 2019, and

Mr. Mohsenipour filed his amended notice of appeal and factum on July 30, 2019). They note that the Crown has not filed its responding factums and no hearing date has been fixed for the appeals. [104] Both of the appellants argue that the circumstances set out herein and, particularly, the further delay in the prosecution of the appeals they say will inevitably result as a consequence of the emergence of the non‑disclosure issue, tips the balance in favour of reviewability. [105] They argue that directions expediting the appeals will be unavailing in this case because of the volume of new disclosure that must now be reviewed and the complexity of the issues that will arise thereafter. (b) Mr. Albashir [106] Mr. Albashir asserts in his factum filed in July 2019 that the judge erred in his analysis of "procuring" in relation to Count 1 and that the guilty verdict on that count is unreasonable. He argues that the judge erred in his analysis of the required element of receiving a material benefit from human trafficking. He submits that the judge also erred in his approach to the human trafficking counts by regarding facilitation as a mode of commission of the offence. In the alternative, Mr. Albashir submits that the human trafficking provision is ambiguous, and that this ambiguity should be resolved through the application of Charter principles. In the further alternative, he

submits that if the judge's analysis of facilitating human trafficking is correct, s. 279.01(1) of the Code is unconstitutional. Mr. Albashir did not challenge the constitutionality of this provision in the trial court. He has not yet been granted leave to raise this issue on appeal. As I understand it, leave to raise this constitutional question for the first time on appeal will be decided by the division of this Court assigned to hear the conviction appeal. [107] Mr. Albashir also argues that the judge erred in his analysis of the law of conspiracy and party liability and erred in his application of the Kienapple (Kienapple v. The Queen, [1975] 1 S.C.R. 729) principle in such a way that could have affected the global sentence imposed. As a consequence of the newly made disclosure, Mr. Albashir submits that his appeal might not be heard until January 2021. [108] Mr. Albashir's parents own property in Surrey, British Columbia, and are prepared to act as sureties. He seeks release pending appeal on the promise of his sureties to pay (without deposit) $250,000 if he violates the terms of the release order and on terms that require him to reside with his parents and comply with a house arrest condition. (c) Mr. Mohsenipour [109] In his factum, Mr. Mohsenipour adopts the grounds advanced by Mr. Albashir and asserts, in addition, that the judge erred in his analysis and application

of the co‑conspirators' exception to the hearsay rule, and in his assessment of the credibility of the complainants. [110] With respect to the public interest criterion, Mr. Mohsenipour submits that the importance of complying with court orders has now been brought home to him. [111] He seeks to distinguish his own situation from that of Mr. Albashir, who was found to be the leader of the enterprise. He emphasizes that a separate and distinct inquiry is required for each applicant under s. 679(3). [112] With respect to the obstruction of justice count (Count 19), he emphasizes that, unlike Mr. Albashir, he was not subject to a no‑contact order when the offence was committed. He also emphasizes that he has not been charged with breaching a no‑contact order since his incarceration. [113] Mr. Mohsenipour submits that there is no evidence to suggest that he currently has any ability to contact the complainants. He submits that no reasonable inference can be drawn that he would attempt to do so now if released on bail. [114] Mr. Mohsenipour submits that the release plan now proposed is more robust than the plan presented to Fleming J. Instead of a $100,000 surety, he is now proposing release on a $250,000 surety bail. He seeks an order naming his mother as his surety. [115] In an effort to allay concerns raised about the appropriateness of naming Mr. Mohsenipour's mother as a

surety, his counsel filed a statement from the mother expressing her embarrassment for providing what appears to have been a false alibi for her son after he was apprehended for breaching his curfew. She also expresses regret for her poor exercise of judgment. [116] Mr. Mohsenipour's father is currently in Iran attending to pressing family matters. It is unsure when he will be able to return to Canada. [117] Mr. Mohsenipour's parents own, as joint tenants, the property in which Mr. Mohsenipour proposes living if release is granted. There is approximately $650,000 in equity in the home - all of which Mr. Mohsenipour's mother says she and her husband are prepared to pledge if release is granted. [118] Mr. Mohsenipour submits that lingering risks that engage the public interest criterion can be addressed through the imposition of bail terms that require him to reside with his parents and observe a form of house arrest. He submits that in assessing the public interest ground, regard should be paid to the expectation of a reasonable member of the public that an appeal with merit should be concluded within a reasonable period of time so that an appellant has access to a meaningful remedy. V. The Position of the Crown [119] As noted earlier, the Crown does not oppose the release of either of the appellants on bail pending appeal. [120] The Crown concedes that the grounds of appeal are

not frivolous and that both appellants have established they will surrender themselves into custody. [121] The Crown submits that concerns about public safety and potential interference with the administration of justice can be addressed through the imposition of the proposed terms. The Crown does not oppose naming Mr. Mohsenipour's mother as a surety. The Crown submits that there is no realistic possibility that these appeals can be ready for hearing before late this year. In the circumstances, the Crown concedes that the reviewability interest tips the balance in favour of release. VI. Analysis [122] Although separate consideration must be given to each application, in light of the considerable overlap that exists between the two applications I find it convenient to address them together, except where the context requires that individualized consideration be given to the particular circumstances of one of the appellants. (a) Will the Appellants Surrender into Custody as Required? [123] I am satisfied that the appellants have established that they will surrender themselves into custody in accordance with the terms of a release order. Although both appellants have violated previously imposed court orders, neither appellant has been convicted in the past for failing to appear. (b) Are the Appeals Frivolous? [124] I am also satisfied that the appellants have established that

their grounds of appeal are not frivolous. Indeed, having now had an opportunity to engage in a more pointed consideration of the grounds argued by the appellants in their factums (and even excluding the new constitutional argument the appellants have not yet been given leave to advance), my preliminary assessment is that the grounds are arguable and clearly surpass the "not frivolous" threshold. [125] It is difficult, at this stage, to make an informed assessment of the merit of the proposed fresh evidence application based on the non‑disclosure issue. This is attributable to a number of factors. First, the contours of the proposed application have not yet taken shape. Second, Crown counsel who appeared on this application has, as I understand it, been assigned carriage of the constitutional issue only. She does not have conduct of the disclosure issue and was not in a position to provide the Court with even a preliminary assessment of the merits of the proposed fresh evidence application, nor could she meaningfully address questions about the grounds of appeal argued by the appellants in their factums. I was advised that senior Crown counsel with conduct of the appeals, including the disclosure issue, was unavailable. While I intend no criticism of Crown counsel who appeared on the application, I would have thought that the Prosecution Service would make available counsel who

could meaningfully speak to these issues, particularly after the Court signaled to the parties that it wished to hear full argument on the applications despite the concession that had been made. [126] Crown counsel was also unable to say whether the disclosure it considers itself obliged to make is now complete or, if not, when the disclosure process will be completed. [127] I note, as well, that the appellants moved promptly to perfect their appeals. As noted, the factums of both appellants were filed in July 2019. The Crown has not yet filed its factums in response and has not committed to a date by which it will do so. (c) Is the Detention of the Appellants Necessary in the Public Interest? [128] Taking into account all of the considerations that inform the public interest -- and I acknowledge there are many in this case that pull the analysis in different directions -- I do not consider that either of the appellants have, at this stage, discharged their onus on this issue. (i) Public Safety [129] Both appellants have a history of displaying a casual disregard for previously imposed court orders. [130] Mr. Albashir has committed criminal offences in the past while subject to bail and probation orders. He violated the terms of a conditional sentence order imposed in 2011. He lied when he was confronted with the curfew breach. Shockingly, he disregarded the terms of the

protective intervention order designed to end his sexual exploitation of an extremely vulnerable 16‑year‑old. Almost immediately after being taken into custody on charges involving K.C., Mr. Albashir engaged Mr. Mohsenipour in a scheme to pervert the course of justice by paying one of the complainants to secure the recantation of her statements to the police. The evidence on this count did not depend on the evidence of the complainant. The plan was discussed by the appellants and recorded in telephone conversations that were adduced at trial. While this conduct took place, Mr. Albashir was bound by a no‑contact order which he blatantly and almost immediately violated. [131] The conduct underlying the obstruction of justice count is not isolated but reflects a consistency of disposition and character and raises very serious concerns that Mr. Albashir will not consider himself bound to abide by any release conditions this Court might impose. [132] In 2017, Cullen A.C.J. concluded that there was a substantial likelihood that Mr. Albashir would commit a criminal offence or interfere with the administration of justice in a way that would imperil the protection or safety of the public if released. Although the context is now different, I share the same concerns today. Indeed, even after Mr. Albashir had been arrested on very serious charges, he focused his efforts on unlawfully

undermining the investigation and prosecution of those charges so he could "get out" and "go back to work again." [133] The risk Mr. Albashir poses to the public is not measured solely by the likelihood that he will commit further criminal offences if released. Consideration must also be given to the type of offence that he is at risk of committing while on release. Mr. Albashir has, by his conduct, demonstrated a disposition to violence and psychological abuse that is capable of inflicting -- and in this case did inflict -- significant harm. He has shown a willingness to put his own interests over the interests of others -- including the physical and psychological well‑being and sexual integrity of a minor. [134] I also have concerns about the proposed sureties in each of the applications before me. Writing extra‑judicially in The Law of Bail in Canada, 3rd ed. (Toronto: Thomson Reuters, 2017), Justice Gary T. Trotter notes that a suitable surety should be someone of good character and someone with the ability and authority to discharge the obligations, and effectively exercise the powers of, a surety. This includes the ability to exercise effective control over the person for whom they are acting as a surety: see R. v. Moazami, 2019 BCCA 226 at para. 36 (Frankel J.A. in Chambers). [135] On this point, I am not persuaded there has been significant change since Cullen A.C.J.

observed that Mr. Albashir's parents had not been able to exercise control over him in the past. Mr. Albashir was residing with his parents when he committed the offences in 2010 and 2011. In addition, I am troubled by the incorrect information supplied by Mr. Albashir's father to the police when Mr. Albashir was found in breach of a curfew imposed upon him as a term of his conditional sentence order. Whether Mr. Albashir's father was duped by his son on this occasion or attempting to mislead -- and I am in no position to make a finding either way -- does not matter. The most favourable inference to be drawn from the circumstances is that Mr. Albashir is capable of lying to and manipulating his parents when it serves his interests to do so. [136] Against this background, I have concerns about the extent to which Mr. Albashir's parents would be willing or able to take independent steps to control their son's conduct if he was granted bail pending appeal -- even with a substantial promise to pay in place. In short, I have concerns about whether Mr. Albashir's parents can be entrusted to discharge the duties of a surety. [137] In addition to my concerns about the suitability of the proposed sureties, I have some concerns about Mr. Albashir's proposed release plan because it would require him to live with his younger brother who also has a criminal record for violence. [138] Mr.

Mohsenipour is similarly situated. He, too, has displayed an indifference to court orders that have been imposed in the past, committing violent offences while on judicial interim release. While Mr. Mohsenipour's conduct might, if isolated in time, be attributed to youthful immaturity, the trajectory of his behaviour into early adulthood does not warrant such a benign conclusion. As an adult, Mr. Mohsenipour ignored the protective intervention order designed to interfere with his ability to continue exploiting N.V. As an adult, he took active steps to pervert the course of justice by paying K.C. to recant her statement to the police. As with Mr. Albashir, his conduct displays a consistency of disposition and character that raises serious concerns about whether he would abide by the protective release conditions this Court might impose. [139] Justice Fleming denied Mr. Mohsenipour bail pending trial having concluded there was a risk he would commit an offence if released and a substantial risk he would attempt to obstruct justice. She found that he posed a danger to public safety in general and to specific individuals in particular. Despite the passage of time and different context, I have the same concerns today. While Mr. Mohsenipour's behaviour was somewhat less egregious, he, too, demonstrated a capacity to commit acts of extreme violence, including by threatening to kill

S.C. while pointing a gun at her. The risk is not just that Mr. Mohsenipour will reoffend while on bail, but that he will do so in such a way as to cause serious physical or psychological harm. [140] Justice Fleming found that the evidence before her demonstrated Mr. Mohsenipour's parents were not able to control his behaviour when he was subject to previous court orders. Disturbingly, his mother -- the individual I am asked to name as Mr. Mohsenipour's surety -- appears to acknowledge attempting to mislead the authorities in 2010 by falsely claiming that her son, who was alleged to have breached his curfew, was home with her all evening. This conduct, even though it occurred a decade ago, raises concerns about whether Mr. Mohsenipour's mother would be willing or able to take independent steps now to control her son's conduct if he was granted bail pending appeal -- even with a substantial promise to pay in place. [141] I have reflected carefully on the statement prepared by Mr. Mohsenipour's mother expressing regret for her conduct on this occasion. I have also taken into account that she has no criminal record and appears to be a hard‑working professional. But these circumstances do not assuage my concern that there remain serious issues about whether she can be entrusted to discharge the responsibilities of a surety. I am also troubled by Mr. Mohsenipour's expression of

confidence at the time of the breach that he could rely on his mother to lie on his behalf. [142] With respect to both applications, I am also troubled by the existence of informational gaps relevant to the assessment of the types of conditions that could conceivably attach to a suitable release plan. [143] For example, I asked counsel in advance of the hearing whether, in the current health crisis, a Technical Suitability Report for electronic monitoring could be completed. Such a term might provide additional behavioural controls that appear to be lacking in the home. I was advised by counsel for Mr. Mohsenipour that probation officers are currently prohibited from conducting in‑home assessments or fitting individuals to be released on bail with electronic bracelets. I was provided with no information from the Correctional Service of Canada ("CSC") or BC Corrections confirming this information. I do not know whether a Technical Suitability Report can, in these unusual times, be completed on the basis of information supplied by the occupant of a residence. Further, if this can be done, I do not see why the appellants could not be fitted with electronic supervision equipment before being released from custody. [144] In raising this issue, I am mindful of the observations of Frankel J.A. in Moazami at para. 37 about the limits of electronic monitoring conditions. And I agree

with the remarks of Justice Mainville that it will only rarely be the case that electronic monitoring will be sufficient in itself to support release on bail pending appeal in the absence of appropriate sureties: R. v. Chun, 2015 QCCA 1021 at paras. 30-31 (Chambers), review dismissed 2016 QCCA 164. But the availability of electronic monitoring in the circumstances of this case may provide an additional measure of public protection if appellate delay eventually pushes the analysis further towards the interest in reviewability. (ii) Public Confidence [145] The appellants have been convicted of very serious offences involving three complainants over a substantial period of time. Violence and threats of violence involving firearms were used in the commission of the offences. Inherent in the prostitution‑related offences with which the appellants have been convicted is the assertion by them of dominance over another person and the appropriation of that person's right to self‑determination. The offences of procuring a minor into prostitution and human trafficking are particularly egregious and they violate, in a fundamental way, shared community values. In my view, the seriousness of the offences in issue raises concerns about whether public confidence in the administration of justice would be undermined by an order admitting either of the appellants to bail pending appeal. [146]

These considerations, combined with the public safety concerns addressed herein, favour the enforceability interest and dismissal of the applications. [147] I acknowledge that there are other features present in this case that weigh in favour of reviewability and the making of a bail order. As I have noted, the grounds of appeal advanced to date surpass the "not frivolous" threshold. The strength of the appeals is an important aspect of the resolution of these applications. Even though I am not in a position at this stage to make an informed assessment of the nascent non‑disclosure ground of appeal or the potential merit in a fresh evidence application based on this ground, I accept that the appeals are arguable. [148] The other factor that weighs prominently in the analysis is appellate delay. I agree with Mr. Mohsenipour's counsel that a reasonable member of the public would conclude that an individual with a meritorious appeal should have access to a remedy in a reasonable period of time. As noted in Oland at para. 48, "[w]here 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." [149] The delay that has been occasioned in the prosecution of these appeals is not something that lies at the feet of the appellants. While I

do not doubt the complexity of the disclosure issues that have arisen, I am concerned by the time it has taken the Crown to fulfil what it considers to be its disclosure obligation. I am equally concerned by the vague representations made by the Crown on these applications as to the status of either the disclosure issue or the Crown's preparation for these appeals. [150] At the same time, I am not persuaded that it is inevitable that these appeals will be inordinately delayed as a consequence of this development. The Crown must, however, understand its obligation to devote resources sufficient to ready the appeals for hearing, including in relation to the disclosure issue. Failure to do so moving forward could, despite the considerations that currently favour enforceability, tip the balance in favour of reviewability in one or both appeals. [151] I will briefly address other factors relied on by the appellants as favouring reviewability. [152] Counsel for Mr. Mohsenipour advised me that visits between legal counsel and inmates have been suspended on an interim basis. I do not, however, know what alternative arrangements have been made by CSC to facilitate contact between inmates and their counsel. [153] Both appellants submit that I should take into account the increased risk of infection during the COVID‑19 pandemic if the virus is introduced inside the prison's walls. I have

not, however, been provided with any information as to the safeguards being put in place by CSC to prevent the introduction and spread of the virus in federal institutions. The authorities the appellants rely on are of limited assistance. Both reflect case‑specific consideration of the problem in the context of pre‑trial bail applications. [154] At the end of the day, it is unnecessary for me to decide whether the elevated risks to federally incarcerated appellants of contracting COVID‑19 could conceivably count as a public interest factor favouring release. In all the circumstances of this case, doing so would not change my view that the enforceability interest currently outweighs the reviewability interest. [155] In conclusion, and having given respectful weight to the position of the Crown, I am not persuaded on the totality of the material before me and on the release plans proposed that either of the appellants has established that their detention is not necessary in the public interest. [156] Section 679(10) of the Code empowers an appellate judge who does not make a release order to give directions considered to be necessary to expedite the hearing of the appeal. As noted in Oland at para. 48, directions of this kind do not always provide a perfect solution. This case is no exception. [157] To preserve the reviewability interest to the extent I currently consider

advisable, I would expedite the hearing of these appeals to the fall. I would refer both matters back to the case management judge. The case management judge is better situated than I am to target specific hearing dates, set a timetable for the completion of appellate steps and monitor the progress of these appeals. [158] As in all cases, it is open to the appellants to bring a second application for bail pending appeal based on a material change in circumstances: R. v. Daniels (1997), 119 C.C.C. (3d) 413 (Ont. C.A.); R. v. Baltovich (2000), 144 C.C.C. (3d) 233 (Ont. C.A.) at paras. 3-7 (Rosenberg J.A. in Chambers); R. v. Wilder, 2006 BCCA 290 at para. 5 (Donald J.A. in Chambers); R. v. Shevalev, 2018 BCCA 388 at para. 8 (Groberman J.A. in Chambers). [159] I have attempted to identify in these reasons the uncertainties, concerns and informational gaps that I consider to be present at this time. While I am not prepared to predetermine what might constitute a material change in circumstances, further information relevant to the likely delays to be encountered in the prosecution of these appeals, and fresh proposals capable of addressing the concerns I have identified respecting the suitability of the release plans are factors that will, no doubt, be given some weight should the applications be renewed. [160] While it is not necessary for the same judge to hear successive applications, it is desirable and would serve the interests of judicial economy: Daniels at paras. 38-42; R. v. D'Agostino, 1998 ABCA 202 at para. 18 (O'Leary J.A. in Chambers). Accordingly, I will make efforts to accommodate future applications should they be forthcoming. [161] For the reasons given, the applications for bail pending appeal are dismissed. "The Honourable Mr. Justice Fitch"