R v Montasser, 2024 ABKB 8

Court of King’s Bench of Alberta Citation: R v Montasser, 2024 ABKB 8 Date: 20240104 Docket: 210649091Q2/231049438U1 Registry: Edmonton Between: His Majesty the King Crown - and - Islam Montasser Offender Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Endorsement of the Honourable Justice M. J. Lema _______________________________________________________

I. Introduction [ 1 ] What are the relevance and, if any, weight of the nature of an underlying (guilty-plea) offence when deciding whether the offender should be released on a later breach-of-release-conditions-pending-sentencing charge? II.

Background [ 2 ] Following his guilty plea to trafficking in persons, the offender was released on conditions pending sentencing (now set for mid-February 2024). [ 3 ] Two of the conditions were remaining at home unless one or more exceptions applied and reporting to the door when requested by police checking on his whereabouts. [ 4 ] In late October 2023, per the Crown, the offender was absent from home three times without any exception applying and, if he was at home on one of those occasions, he failed to present himself at the door.

Leading to four breach-of-condition charges, the offender’s arrest, an initial release-on-new-charges hearing before Tibbitt J., a denial of release, and the current revocation-of-initial- release and review-of-release-on-new-charges proceedings. [ 5 ] The Crown and Defence agreed that the threshold issue here is whether the presiding Alberta Court of Justice justice erred in denying release on the new charges.

If she did not err, the offender will remain in custody on the new charges, rendering the parallel revocation-and-potentially-fresh-release aspect moot. [ 6 ] If she did err, the parties agree that I am to consider release on the new charges afresh and also that, in effect, I should combine that aspect with the revocation-and-fresh-release aspect i.e. effectively blend the two release streams and decide whether the offender should be detained or released and, if the latter, on what condition(s), pending his upcoming sentencing. III. Analysis A.

Denial-of-release-on-new-charges decision [ 7 ] At the release hearing (on November 27, 2023), the Defence argued (in part): … I would highlight the allegations that are before the Court [i.e. the breach charges], especially in light of the conditions that [the offender is] under, these are relatively minor if the Crown can prove them. [ 8 ] The Crown responded on this aspect (in part): … [The breach charges] are not relatively minor when they occur in the context of the fact that [the offender] is out on release on a very serious substantive charge that required strict bail conditions.

Any violation of a bail condition in those circumstances is extremely serious. … … while he is entitled to the presumption of innocence on the breaches, he is not entitled to the presumption of innocence on the substantive charges that he is out on, released on, and that changes the analysis, in the Crown’s respectful submission, when you are considering release. [ 9 ] The presiding justice observed the following in her decision declining release: So [the offender] has admitted to trafficking a 15-year-old girl, providing her with drugs, arranging her to be at various locations, arranging for adult males to have sex with her for money, setting up a profile of her on a plus 5 advertising website, including photographs of her on that site.

They are extremely serious charges and explain the very serious release conditions. His conduct included contact through various forms of social media and telling the girl that she was very pretty, then locating her using Snapchat, and as I said, arranging for her to be moved in various locations in Edmonton and taking other steps over a period of time between March 11 and April 26, 2021. What he has admitted to gives me information on why such strict bail conditions were in place and what the potential is if they are not followed . [page 21, lines 30-41] [emphasis added] B.

Appropriate consideration of underlying offence [ 10 ] As reflected above, the presiding justice concluded that the circumstances of the underlying offence (to which the offender pleaded guilty) were relevant for context, including “explain[ing] the very serious release conditions” and illuminating further (potential) misconduct. [ 11 ] As I see it, those are both permissible uses of the underlying offence. It would in fact be unusual if the release decision-maker did not consider the underlying offence for these purposes. C. Other factors considered

[ 12 ] The question becomes whether the presiding justice placed undue weight on these relevant factors (i.e. the nature of the underlying offence and the guilty plea). [ 13 ] The answer is no.

The presiding justice also emphasized the offender’s criminal record: … [which] includes obstruction, failing to attend court, failing to comply with recognizance, and flight form police, as well as other substantive offences, but I find those [i.e. described] offences particularly relevant to the issue of a compliance with any conditions. [ 14 ] She also noted his on-release status, the reason, or core reason, for his release (“so that he could visit his mother in the hospital”), and the particulars of the alleged breaches. [ 15 ] And the strength of the Crown’s case.

After noting that the offender had the presumption of innocence on the breach charges, she observed that “the part of the Crown’s case establishing he wasn’t present at his home on those [alleged breach] occasions does seem strong. The issue of where he was is of course a matter for trial. I’m not prepared to dismiss the charges as weak on their face.” [ 16 ] Defence did not suggest that the presiding justice erred on her assessment of the latter aspect.

In any case, I concur with the presiding justice’s analysis here, in view of the exceptions here i.e. a “shopping” exception requiring advance permission from the bail supervisor and the “religious services” exemption seemingly not covering “lectures” and, in any case, the unlikelihood that a religious service (even if including a lecture) would run to after midnight.

In other words, I do not see ambiguous release conditions here, especially on the “shopping” exception. [ 17 ] I find that the presiding justice did not commit the error asserted by the Defence i.e. of declining to release solely on the basis of the nature of the underlying offence and the guilty plea, or either of them separately. Neither did she place undue weight on those factors. D. Significance of compassionate-release aspect [ 18 ] The offender pleaded guilty to a serious underlying offence.

Despite very material criminal-record indicators flagging a material risk of offending while on release, the offender received a kind of compassionate release, centred on being able to visit and otherwise connect with his mother in the period up to sentencing.

Absent that factor, a decision declining to release the offender pending sentencing would have been justifiable, anchored entirely or at least substantially on second-ground concerns arising from his criminal record. [ 19 ] In other words, the offender received a kind of special dispensation, given his family circumstances. [ 20 ] And, even though the breach charges, viewed without reference to the background circumstances (criminal record and underlying offence here), might be regarded as “minor” or “somewhat minor” (themselves not constituting criminal offences on their own i.e. aside from being release conditions), the background cannot be disregarded. [ 21 ] Through the apparent (strong Crown case) committal of the alleged breach offences (and whether three or four, with the “not answering door” aspect being effectively an alternative to one of the “not at home” charges), the offender seems to have displayed a cavalier attitude to adherence to his release conditions. [ 22 ] And I am not placing any weight here on the Crown’s reference before the presiding justice and me to other (not-charged) breaches, with no evidence from the probation officer as to those asserted breaches. [ 23 ] Through his apparent cavalier regard for his release conditions, the offender has re-animated the re-offending concerns anchored on or arising from his criminal record i.e. having apparently shown an inability or unwillingness to adhere to his release conditions, he effectively presents with a higher risk of reoffending generally. [ 24 ] And, again, that is the case even if the underlying offence and guilty plea are not emphasized.

And, in any case, it was not wrong to emphasize those elements as part of the context, in the sense of showing what kind of activities the offender was capable of and did perform and explaining how the release conditions came to be, at least in part. [ 25 ] Plus, nothing in the record showed that the offender’s absences here, or any of them, had anything to do with visiting his mother. And no evidence was provided about any continuing need or wish for the offender to continue to be on release for the purpose of visiting his mother. E.

Cases attaching weight to seriousness of underlying offence [ 26 ] I draw support from Ju v The Queen , 2003 BCSC 762 (Hood J.): In giving her reasons, Her Honour Judge Warren had this to say: He is facing very serious charges, and although there may be difficulties with respect to the identity of two of the counts, there is not that problem with Count 3, the police pursuit. The court expressed grave concerns on the secondary and tertiary grounds on November 8th, and it is hard to imagine a more onerous recognizance being imposed. ...

Notwithstanding the views, support and requests for a second chance contained in the letters of the well-meaning members of his family, friends and so on, the accused has demonstrated by his conduct, in the face of his earlier release, and the specific conditions thereof, that his detention is necessary for the protection or safety of the public, having regard to all of the circumstances which I

have considered, including the substantial likelihood that if released he will commit a further criminal offence in breach of his recognizance and which by its very nature would put other members of the public at risk . ... If the accused was entitled to a second chance he has had that chance.

He has demonstrated a complete disregard of the conditions of the earlier release order, which was granted with grave concern by the learned Provincial Court Judge on the initial s. 515 application; and who set out most stringent conditions on the accused’s release, believing that they would address her concerns, and which were simply ignored. [ 27 ] In the present case, the release conditions were apparently not ignored over the bulk of the release period, at least in the sense of no breach charges, but were apparently ignored multiple times recently. [ 28 ] On the seriousness of the underlying offence as a factor in considering release pending a conviction appeal (an analogous context), see R v Lai , 2021 BCCA 342 (CJ Baumann in chambers) at para 51 (reference to underlying “index offence”). [ 29 ] I also rely on these cases confirming the relevance of underlying-offence seriousness when considering breach charges and sentencing following such convictions: Obodzinski c R , 2021 QCCA 1395 This judgment should not be interpreted as stating that the nature of the original offences may never inform the disposition of a breach sentence where the underlying offences were of a similar nature. [para 77] R. v.

Thompson , 2021 ONCJ 361 (Chamberlain J.) ... I would turn first to an analysis of the breach in context of Mr. Thompson’s personal circumstances, the nature and duration of the breach and other relevant factors: The seriousness of the underlying charges : I know very little of the allegations before the Court that make up the underlying charge. It is a manslaughter charge, which on its face is serious. It implies an allegation, clearly unproven, that he may have had a hand in the death of an individual. [para 19, sub para (8)] R. v.

Lewis , 2012 NLCA 11 : Bearing in mind the seriousness of the underlying offence which resulted in the convictions for breach of probation and breach of recognizance, the fact that Mr. Lewis was on probation following conviction for a previous break and entry offence, and Mr. Lewis’ abysmal record with respect to breaches of court orders, a sentence of nine months for each of the charge of breach of probation and the charge of breach of recognizance is quite consistent with the sentence of six months in Oxford .

In the circumstances of this case, imposing the additional three months can only be viewed as a principled exercise of discretion. ... [para 72] [emphasis added] R v Buschemeyer , 2021 ABQB 1008 (Gates J.): The circumstances in this instance are significantly more aggravating than those in Exell . As such, a substantial period of imprisonment is called for in this instance. While the decision in Exell may provide a useful guide in terms of the proper approach to sentencing relative to this particular offence [breach of probation order], the sentence imposed in that instance is wholly inadequate for this matter.

In the result, I find that a sentence of 18 months is appropriate given the gravity of the underlying circumstances. [para 96] [emphasis added] IV.

Conclusion [ 30 ] The breach charges are not automatically serious because of the seriousness of the underlying charges or the offender’s guilty plea, or either on its own. [ 31 ] They are serious against the backdrop of all the circumstances, including the offender’s criminal record and the nature of the underlying charge and the guilty plea. [ 32 ] The offender’s history of offending (criminal record and underlying offence), illuminated by his apparently cavalier attitude to his release conditions, raises a material risk of reoffending with risk to the public i.e. trigger, or re-trigger, material second-ground concerns. [ 33 ] In the end, the offender showed that the dispensation he received by being released pending sentence, even if warranted for much of his release period, should not continue for the remaining period through to sentencing. [ 34 ] All to say: Tibbitt J. did not err in considering the seriousness of the underlying offence, weighing that factor amongst the others, or deciding on revocation.

V. Closing note [ 35 ] Counsel advised that, in light of the new breach charges, the waiting-on-sentencing bail has been or should be revoked. I accordingly declare that that has occurred or, in any case, I direct that that bail is now revoked. [ 36 ] Defence advised that no decision on a fresh bail application on that aspect is needed, with no such application being advanced.

[ 37 ] I thank Ms. Hughson and Mr. Fix for very helpful submissions. Heard in Edmonton, Alberta on December 21, 2023. Released orally on December 22, 2023. Dated at Edmonton, Alberta this 4 th day of January, 2024. M. J. Lema J.C.K.B.A. Appearances: Susan D. Hughson, KC for the Crown Steven J. Fix Fix and Smith Barristers & Solicitors for the Accused