Nova SCoTia COURT OF APPEAL Citation: R. v. A—Rawi, 2021 NSCA 6 Date: 20210107 Docket: CAC 503005 Registry: Halifax ‘Between: . stole ‘s, Bassam Al—Rawi f vent‘ Appellant is tal v 1 (8) i As «£7 Her Majesty the Queen Take #> Respondent Restriction on Publication: pursuant tos. 486.1 of the Criminal Code of Canada Judge: Derrick, JA. Motion Heard: .— January 7, 2021, in Halifax, Nova Scotia in Chambers Written Decision:. January 8, 2021 Held: Motion granted Counsel: Tan Hutchison, for the appellant James Gumpert, Q.C. for the respondent sees comecoms countor erea. tra exnty vat * Writs of to San ol h Coit aa ire ceny ofr ongnatdocumen on fe wor. omote C" carer Jemwany An. oal __. 6 ga Keuy murony serum reostean NomGstaConttigpet Order restricting publication — sexual offences 486.4 (1) Subject to subsection (2) the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (1) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 21 1, 213, 271,272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (1) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred toin subparagraph () ifit occurred on or ater that day; or (b) two or more offences being dealt with in the same proceeding, atleast one of which is an offence referred to in paragraph (a). Mandatory order on application (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at te fist reasonable opportunity, inform any witness under the age of cightcen years and the victim of th right to make an application for he order; and (b) on application made by the victim, the prosecutor or any such witness, make the order. Page 2 Decision: Introduction {1 Bassam Al—Rawi was convicted on August 28, 2020 of sexual assault. On December 17, he was sentenced to two years in prison. He appealed his conviction and applied pursuant to s. 679 of the Criminal Code for bail pending his appeal. On January 7, 2021, his bail motion was heard over approximately four hours in Chambers. Mr. Al—Rawi and his surety, Faris Jeshami, were cross—examined, and I heard submission from counsel. {2} — Following the submissions from counsel, I gave oral reasons granting bail. went over the Release Order with Mr. Al—Rawi and Mr. Jeshami. Pursuant to sections 13 and 14 of the Canada Avidence dot, .S.C. 1985, c. C—5, I took Mr. Jeshami‘s affirmation for the Surety Declaration virtually as Mr. eshami appeared by Skype from Ottawa. [3] — 1 indicated I would be providing a written decision. This decision duplicates themes addressed in my oral reasons and augments them, providing greater detail of the evidence and relevant legal principles. [4] — Mr. Al—Rawi supported his motion for bail with two alternative release plans. In one, he proposed being released to live in Germany where he was residing until being sentenced to prison. The other proposal was a release plan for Mr. Al—Rawi to live in Ottawa. Each plan involved Mr. Al—Rawi depositing $25,000 in cash and Mr. eshami pledging $50,000 secured by personal property without a deposit, for a total amount securing Mr. Al—Rawi‘s release of $75,000. [5] . The Crown fled a written brief in response to Mr. Al—Rawi‘s motion, It concluded its analysis by saying: "For the reasons outlined earlie in this brief, the Respondent [Crown] does not have a reasonable basis to oppose the Appellant‘s release on significant bail, both by cash and surety‘s pledge". (6) . I granted Mr. Al—Rawi‘s motion for bail on the basis of his "Germany" release plan. Page Bail Pending Appeal — Section 679G) of the Criminal Code [7] — Bail at appeal is materially different from bail pre—tial (known as judicial interim release). Mr. Al—Rawi no longer enjoys the presumption of innocence as he did at his ria. The entitlement to reasonable bail pre—trial guaranteed by s. 1 1(e) of the Canadian Charter of Rights and Freedoms does not apply. Mr. Al—Rawi bears the burden of establishing, on a balance of probabilities, that he meets each of the s. 6790) criteria (R. v. Ofand, 2017 SCC 17, at para. 19). [8] — Bail pending appeal is governed by section 679 of the Criminal Code which sets out the three statutory criteria: (3) in the case of an appeal [against conviction}, th judge of the court of appeal may order tha the appellant be released pending the determination ofhis appea if the appelant establishes that (a) th appeal. is not frivelous; (6) he will surender himself ito custody in accordance with th ems of the order, and () his detention is not necessary n the pblic intrest [9] . The Crown‘s conclusion that it did not have a reasonable basis for opposing Mr. Al—Rawi‘s bail, provided substantial conditions are in place, indicated the Crown was satisfied Mr. Al—Rawi has satisfied the requirements ofs. 679G). [10] _ In determining Mr. Al—Rawi had satisfied the s. 679(3) criteria, I examined the relevant evidence and submissions. I review details below relating to Mr. Al— Rawi‘s grounds of appeal, his history of release on bail, and the evidence at the bail hearing. Mr. Al—Rawi‘s Appeal {1} | Mr. Al—Rawi‘s Notice of Appeal alleges the trial judge erred in his consideration of certain evidence relating to the credibility of the complainant; his consideration of the identification evidence; improperly using hearsay evidence; shifting the burden of proof to Mr. Al—Rawi; and his determination that the Crown had established the mens rea for sexual assault {12} . In a Supplementary Brief filed in support of Mr. Al—Rawi‘s bail motion, Mr. Hutchison developed the arguments he intends to make on appeal. He indicates the allegations of error by the tral judge include: impermissible speculation when Page4 assessing the complainant‘s credibility, specifically, her evidence about the events of the night,including the sexual assault reliance on neutral factors to enhance the complainant‘s credibility; failure to consider and properly apply the law relating to identification evidence, reliance on an in—dock identification, application of the law of circumstantial evidence to evidence of identification, and reliance on hearsay in assessing the issue of identity of the perpetrator; determination that mens rea had been proven by the Crown beyond a reasonable doubt; and reversal of he burden of proof by imposing an obligation on Mr. Al—Rawi to explain why the complainant would fabricate her evidence. [13] _ Mr Hutchison advised his Supplementary Brief was intended to augment his submissions that Mr. Al—Rewi‘s appeal is not frivolous. Mr. Al—Rawi‘s Release on Bail in the Courts Below [14] — Mr. Al—Rawi was iving in Germany in 2018 when he was charged. He was operating his own businesses and in 2017 had married a German woman with whom he had been involved since 2009. He continued to live in Germany while the prosecution of the sextal assault charge proceeded through the Nova Scotia courts. [15] | Mr. Al—Rawi elected to have a tial before a judge of the Nova Scotia Supreme Court siting without a jury. He was released on conditions pending his preliminary inquiry on February 4 and 5, 2019. He travelled from Germany to attend his preliminary inquiry and, with his wife, travelled back and forth between Germany and Nova Scotia for his tril. The trial proceeded on ight days in February and early March, 2020. It was then adjourned for continuation on additional dates in late August in order to hear evidence from a toxicologist. As a result of public health directives relating to COVID, Mr. Al—Rawi and his wife quarantined for two weeks in Nova Scotia before the resumption of his rial. [16] — In his sentencing decision, the trial judge noted there had been no issues with Mr. Al—Rawi‘s attendance at ria; "He waived extradition and appeared here faithfully when required by the Court" [17] — Trial Crown sought t revoke Mr. Al—Rawi‘s bail upon conviction. The tral judge extended bail under a recognizance with a surety and new conditions. Mr. Al—Rawi was required to deposit $500. A different surety, not Mr. eshami, pledged $10,000 in personal property. Mr. Al—Rawi was ordered to remain in Nova Scotia. He complied with all his release conditions prio to sentencing in Page S December, 2020. On December 17, 2020, he was taken into custody to begin serving his sentence. [18] — Mr. Al—Rawi was before the Nova Scotia Provincial Court in 2019 on a re— tril afte a successful appeal in an unrelated matter. He complied fully with his release conditions and attended court throughout as required. The re—trial concluded in an acquittal. The Bail Hearing on January 7, 2021 [19] Two witnesses testified atthe bail hearing: Mr. Al—Rawi and his surety, Mr. Jeshami. Mr. Gumpert cross—examined both of them on behalf of the Crown. Mr. Jeshami was affirmed by me pursuant to the provisions of the Canada Evidence Act I mentioned earlier. [20] _ 1 was satisfied that the evidence provided by Mr. Al—Rawi and Mr. Jeshami could be relied upon. Mr. Jeshami impressed me as a suitable surety — genuine, candid and reliable with a firm grasp of a surety‘s ole and responsibilities. [21] _ M. Jeshami provided an affidevitin support of Mr. Al—Rawi‘s motion for bail. In i, he attested to the following: 15. I understand Bassam has been convicted of sexual assalt and has been sentenced t 2 years jil ime; 16. — understand Bassam is making an aplication for bil to the Nova Scotia Cour of Appeal.! support Bassam‘s application; 17... am willing to ac sa surety for Bassam it he is ranted baily 18. understand th roles and responsibilities of a surety; 19. .— I am willing to pledge $50,000, without deposit in my ole as a surey for Bassam; 20. I understand tha I will b required t pay $50,000 nto cour should Bassam breach his bail conditions, commit any father offences, fail to atend court or fil o surrender to the Cental Nova Scotia Correctional Facfty; 21. —I understand Bassam is asking th cout that he be allowed to etur o Genmany or that he b allowed to five in Otawa. 1 support both bail plans; 22... | am confident that Bassam will comply with his bail conditions, tend court and surrender to the Cental Nova Seats Correctional Facility: Page 6 {22} | Mr. Gumpert‘s questioning of Mr. Jeshami established that: Mr. Jeshami has been close friends with Mr. Al—Rawi since childhood. They grew up in the same Baghded neighbourhood in homes 200 meters apart. They went to school together and Mr. eshami knows Mr. Al—Rawi‘ family, his parents, siblings, and uncle. When he moved away to the United Arab Emirates for work, Mr. Jeshami continued to maintain close contact with Mr. Al—Rawi through social media. He described Mr. Al—Ravi as lk a brother to him and was emphatic about wanting to support him. [23] | Mr. Jeshami emigrated to Canada in 2014. Since 2016 he has worked full— time as a letter carier for Canada Post. He owns his own home and two rental properties. His affidavit indicates he has substantial savings. His pledge of $50,000 to secure Mr. Al—Rawi‘s bail is supported by a solid financial position. {24 — Mr. Jeshami has no criminal record. [25] — In response to questions from Mr. Gumpert, Mr. Jeshami indicated he understood his obligations as a surety, had read Mr. Al—Rawi‘s proposed release conditions and appreciated he would lose his $50,000 pledge if Mr. Al—Rawi violated his bail. When asked these questions, Mr. Jeshami‘s immediate response was: "I am 100 percent sure he would not", referring to the likelinood of Mr. Al— Raw being non—compliant. [26] — Mr. Jeshami acknowledged that hi responsibilities as a surety include contacting the police if he learned Mr. Al—Rawi was not abiding by the terms of his bail He said firmly, "Yes, I would do that". [27] — Mr. Jeshami was asked about the level of his confidence that if released to return to Germany, Mr. Al—Rawi would return for his appeal. He noted that Mr. Al— Rai has returned to Canada "many times" from Germany to attend court. Mr. Jeshami said Mr. Al—Rawi had come back to Canada before: "I am fully confident he will come again‘. [28]. I asked Mr. Jeshami whether he maintained regular contact with M Al— Raw. He advised he does and is also in frequent contact with Mr. Al—Rawi‘s wife, and his brother who lives in Germany. [29] | Mr. Al—Rawi confirmed the information from his German immigration lawyer i a letter attached to his supplementary affidavit. He holds a temporary resident permit in Germany and must return by February 8, 2021 to renew it in Page? person. The permit expires on April 20, 2021. Mr. Al—Rawi‘s conviction prevents him from applying for permanent resident status in Germany. [30] | Mr. Al—Rawi testified he faces possible deportation from Germany because of the sexual assault conviction: [31] — When asked by Mr. Gumpert if he was released to return to Germany, would he come back to Canada, Mr. Al—Rawi testified that, "Everything in my life is dependent on this case", He said: "Under no circumstances will 1 fail to attend". [32] | Mr Al—Rawi indicated he kept in regular touch with Mr. Hutchison throughout the trial process. Mr. Hutchison confirmed this [33] Mr. Al—Rawi described a constellation of reasons the appeal is of critical importance to him. His wife, a German citizen, is 24 weeks pregnant. Incligible for health care benefits in Canada where she has been visiting to support Mr. Al—Rawi, she must return to Germany to have the baby. The due date is late ApriVcarly May. [34] — Mr. Al—Rawi applied to sponsor his wife for permanent residency in Canada and paid in excess of $1000 as required. The application was rejected because of his conviction. [35] | Mr. Al—Rawi explained the challenges facing his businesses in Germany, due to the pandemic and his conviction. He testified that if he is not able to retum to Germany there would be significant financial consequences for his businesses, his employees and his financial situation. He and his wife own a home and have payments associated with the home and the businesses. [36] | Mr. Al—Rawi testified that everything is interconnected and connected to whether his appeal succeeds. [37] | 1 asked Mr. Al—Rawi about his contact with Mr. Jeshami. He confirmed they are in frequent contact and that Mr. Jeshami also communicates with his wife and brother. Mr. Al—Rawi‘s brother lives near where Mr. Al—Rawi and his wife have their home, [38] . Following cross—examination, I heard submissions from counsel. As I mentioned earlier, Mr. Al—Rawi proposed alterative release plans. Mr. Gumpert indicated the Crown did not oppose Mr. Al—Rawi‘s release under either the "Germany" release plan or the "Ottawa" release plan. Page 8 [39] _ As I determined Mr. Al—Rawi had met the onus on him to justify his release on bail under the "Germany" release plan, I did not find it necessary to discuss the "Ottawa" release plan. It similarly contemplated strict conditions and, as I mentioned earlier, the same financial commitments by Mr. Al—Rawi and Mr. Jeshami. [40] I will now address Mr. Al—Rawi‘s "Germany" release plan and the criteria under s. 679(3) of the Code. The "Germany" Release Plan [41]. The affidavit and testamentary evidence established that Mr. Al—Rawi‘s "Germany" release plan would enable him to return to Germany to renew his temporary residency. It would also enable him to support his wife through the rest of her pregnancy and attend the birth of hi frst child. {42} — Returning to Germany would also mean Mr. Al—Rawi could operate the car rental company he owns there which employs more than 30 people. It would enable him to stabilize hi financial situation. [43] — Mr. Al—Rawi‘s wife provided a letter to the trial judge at sentencing in which she indicated she was overwhelmed by trying to manage the car rental business in her husbands absence. (After his conviction in August, Mr. Al—Rawi was released on bail with a condition to reside in Nova Scotia. Mr. Al—Rawis evidence before me indicated his and his wife‘s inancial circumstances would be very adversely affected if he was not able to return to Germany. Satisfying the s. 679(3) Criteria for Bail Pending Appeal Is the Appeal Frivolous? [44] | The sexual assault for which Mr. Al—Rawi stands convieted occurred on December 15, 2012. The complainant had a SANE examination (Sexual Assault Nurse Examination) that same day and was interviewed by police three days later. In March 2013, the police took a statement from Mr. Al—Rawi. They advised the complainant they would not be laying charges. Four years later, upon leaning that a taxi driver had been acquitted of sexual assault, the complainant contacted the police to see if there was any connection to her case. Mr. Al—Rawi was charged in 2018. Page 9 [45] — In his sentencing decision, the ria judge gave a synopsis of the facts of the offence Mr. AbRawi picked up an intoxicated Ms. BCB in th ealy hors of Satuday, December 15,2012; He was diving a cab, bat she was nota fire. The ide appeared to be a compassionate gestre towards a stranger. Eventually, Mr. Al Rawi headed fora highway and ended at his apartment building. He escorted Ms. ECB to his thid foor apartment, and she was sill very intonicated. Mr Al—Rawi had sex with Ms. ECB on his be in his bedroom. She did not want his She communicated nothing for consent Indeed she pretended to have pased out in an effet t avoid sex. [46] There is a very low threshold for satisfying the requirement that the appeal is "not frivolous" (R. v. Apadl, 2012 NSCA 113, at para. 19), The Crown recognized this. The Crown‘s brief says: "The Respondent acknowledges that the grounds of appeal raise arguable issues"" In oral submissions, Mr. Gumpert said Mr. Al— Rawi‘s appeal is "well beyond frivolous". Mr. Gumpert explained that reviewing the elaboration in Mr. Hutchison‘s Supplementary Brief of the grounds of appeal assisted him in coming to this view. [47] . In paragraph 12 above, I reviewed the arguments Mr. Hutchison intends to develop for Mr. Al—Rawi‘s appeal. 1 find they support the position taken by the Crown. [48] — As Mr. Gumpert noted, itis difficult to assess the strength of Mr. Al—Rawi‘s grounds of appeal in the absence of being able to review the full record of the rial and the arguments of counsel. The unavailability of the trial transcript restricts somewhat the "preliminary assessment" to be made of th strength of Mr. Al— Rawi‘s appeal (Oland, at para. 45). This is not at all unusual for bail pending appeal motions. Gauging whether the appeal grounds clear the low "not fivolous"" threshold has to be done without recourse to the trial record. The Appeal Book is not available yet. Bail motions are not delayed until the Appeal Book is fled. Will Mr. Al—Rawi Surrender Himself nto Custody as Required? [49] — Mr. Al—Rawi is a Canadian citizen. He arrived in Canada as a refugeo. He spent the fist 23 years of his if in Iraq which included the first Gulf war in 1991 and the American invasion in 2003. After Saddam Hussein was deposed the political axis in the country shifed and young men of Mr. Al—Rawi‘s ethnicity Page 10 (Sunni Muslim) were being persecuted. As a consequence, Mr. Al—Rawi left Iraq and his family and eventually made his way to Germany. [50] — The Crown‘s brief recites the tril judge‘s description in his oral sentencing decision of Mr. Al—Rawi‘s circumstances, some of which I referred to already; ...The presentence report puts Mr Al—Ravi‘s personal circumstances ina very good light Mr. A—Ravi has sold famly supports. He was brought up wellin a middleclass houschold n Baghdad with good porent and thre siblings. He Red rag in the face of persecution against Sunni Musims afe the American invasion. Two decades late, he sll maintains ood relations wth is parent and siblings. Mr. AlRawi and his spouse have been together fr over ten yeas. They are expecting thei frst child s wife travelled with him to Nov Scotia o upport him during th ris. She says they are, "Together, strong and commited" Mr. Al—Ravwi received a good education in Baghdad. Study appealed to him, expecially th study of languages After high school he eared a biomedical degree, wth good marks. Upon moving to Germany, he laned German and Swedish. Mr. Al: Ravi lef Germany for Canada, where he was accorded refugee status. Between 2010 and 2015, he came cloe to otaning a commersia pilot‘ cence However, mounting legal expenses caused him to withdraw before he could complete the last hous ofrequred fling time. Mr. Al: Rani has an excelent work record. He established his rst business shortly aler emignting to Germany. He operated that business fo seven years before moving to Canada While studying fr the commercial pilots licence he drove and sublet taxi cabs Since 2016, Me. Al: Ravi and his wife operted a medical service business and a ca rental and driver business in Germany, wth good resuts. He and his wife had substantial incomes, They own a home, have liquid investment, and cary a significant deb load. I accept his wife‘ statement about the severely adverse effects separation by imprisonment wll have on her. Also 1 accept he statements about the severe impacts of such onthe business. [51] . In his brief and oral submissions, Mr. Gumpert acknowledged that Mr. Al— Rawi has returned from Germany on a number of occasion to attend at proceedings inthis case and also in the previous unrelated prosecution I mentioned previously. As Mr. Hutchison put it, Mr. A—Rawi has "always answered his bail". [52] — Mr. Al—Rawi has complied with his release conditions and committed no offences while on bail. He has no criminal record. Page 11 [S3] — Mr. Hutchison, pointed out that Mr. Al—Rawi has a great deal riding on his appeal. His conviction significantly complicates hs ife and that of his wife and unborn child. Mr. Hutchison pointed out in his brief that Mr. Al—Rawi must .. Ally engage in this appeal A filire to do so will liminate his chances of obtaining German itzenship and prevent him from living in Germany wth his family. [54] — Mr. Al—Rawi would immediately face very significant immigration, financial, domestic and housing implications if his appeal did not proceed because he failed to comply the requirement of his bail that he return to Nova Scotia and surrender into custody ahead of the release of the decision on his appeal. [55] _ The Crown conceded Mr. Al+Rawi is not a fight risk. His compliance with his bail previously, his faithful attendance at all court proceedings, and the powerful incentives for him to robustly prosecute his appeal are compelling indicators he will comply with his bail conditions and return to the jurisdiction in accordance with the terms of his release. These terms include surrender nto custody in advance of the release of the decision in his appeal Does the Public Interest Require Mr. Al—Rawi‘s Detention? [56]. The public interest criteria unders. 679(3) has two components: public safety and public confidence in the administration of justice. The determination by Justice Arbour of he Ontario Court of Appeal in R. v. Farinacei, (1993) 86 C.C.C. (30) 32, that the "public interest" is comprised of these two considerations remains "good law". (Oland, at para. 26) [57] | The public confidence component involves "the weighing of two competing interests: enforceability and reviewabilty". (Oland, at para. 24) The enforceability component reflects "the need to respect the general rule of the immediate enforceability of fudgments" (Oland, at para. 25) In other words, itis expected Mr. Al—Rawi will be held to account by continuing to serve the sentence imposed on him. The reviewability component reflects a recognition that our criminal justice system is not fail—safe and that appellants challenging the legality of their convictions "should be entitled to a meaningful review process..." (Oland, at para. 25) [58] — M: Al—Rawi has been convicted of a very serious offence. The trial judge referred to the "inherent wrongfulness and harm fulness of major sexual assaults" in Page 12 his proportionality analysis at sentencing. The seriousness of the offence is a relevant consideration under the public confidence in the administration of justice aspect of the public interest criteria. [59] . In Oland, the Supreme Court of Canada directed appellate judges considering motions for bail to apply the factors relevant to the public confidence criteria in pre—tral release. These factors are: the apparent strength of the Crown‘s case; the gravity ofthe offence; the circumstances surrounding the commission of the offence, including whether a firearm was used; and the potential length of imprisonment. (at paras. 31—32) [60] —I took the factors relevant to Mr. Al—Rawi‘s bail application into account. When addressing the issue of where to locate Mr. Al—Rawi‘s sentence in the appropriate range, the trial judge said: "In my assessment, the positve aspects of Mr. Al—Rawi‘s personal circumstances and his cooperation with the tral process, also compel the lower end of the range". [61] — Bail pending appeal requires a "final balancing" of he enforceability and reviewability aspects of the public confidence criteria. The "inal balancing" must calibrate public confidence as viewed by reasonable, well—informed members of the public. The Supreme Court in Oland has been explict about this: (47) — Appelite judges are undoubtedly required to draw on their egal experise and experience in evaluating the fictos that inform public confidence, including the strength of the grounds of appeal, th seriousness of te offence, public safety and fight ris. However, when conducting th inal blancing of thes fctos, appellate judge should keep in mind tat public confidence iso be messired (brough the eyes ofa reasonable member ofthe public. This person is someone who is thoughtfhl, dispassionate, informed ofthe circumstance of te case and respectful of socil‘ fndamental values R v. Sr Cloud, 2018 SCC 27, 2015] 2 SCR. 328, at paras, 74—80,In that sense, public confidence in the administation of jisice must be distinguished fom uninformed public opinion about the case, which has no role to play in the decision o grat bail or not [62] — Assessing the public confidence component of the public interest criterion is a nuanced exercise. Appellants who have been convicted of very serious charges may qualify for bail pending appeal. Oland determined the relevant principles are applicable in al cases, regardless of the conviction: (89) .In th final analysis, here is no precise formula that can be applied to resolve th blanc between enforceability and reviewabilty. A qualitative and contextual assessment i required. Inthis egard, I would reject a categorical Page 13 appronch to murder o othr serious offences, as proposed by cerain intervenes. Instead, th principles that I have discussed should be applied uniformly. ($0) — That said, where the applicant has been convicted of murder or some other very serious crime, th publ interst n enforceability will b high and will fen outweigh th reviewablity interest, particularly where thee are lingering public safity or flight concerns and/or th grounds of appeal appear t be weak: A. Mpare, 2001 BCCA 508, 188 CC.C. (2) 312, at para. 38; Bolovich, at pa. 20; Parsons, at par 44. (31) — On the ther hand where public safey or Night concems ae neige, and where th grounds of appeal clearly surpass the "ot fivolous® criterion he public interes in reviewablity may well overshadow the enforceability interest, even in the case of murder or other very serious offences (63) . The Crown concluding it had no reasonable basis for opposing Mr. Al— Raw request for bail pending his appeal was a clear indication to me that the public interest considerations in this case had been satisfied. Based on the evidence and submissions, I was independently satisfied of the slid basis for the Crown‘s position. Conclusion [64] — In granting Mr. Al—Rawi bail, I considered the s. 679(3) criteri, the "Germany" release plan proposed by Mr. Al—Rawi, the Crown‘s position in relation to it, and the evidence from Mr. Al—Rawi and Mr. Jeshami. I concluded the Crown‘s determination there was no reasonable basis for opposing Mr. Al—Rawi‘s release pending appeal was well supported by the evidence and applicable legal principles. Mr. Al—Rawi met the burden of establishing he satisfied the criteria for release. [65] L ordered Mr. Al—Rawi‘s release on bail in accordance with the "Germany‘ release plan. Mr. Al—Rawi has an impeccable record of attending court here as required. I was satisfied he and his surety are committed to him complying with his bail conditions under the "Germany" release plan. I found that Mr. Jeshami‘s close relationship with Mr. Al—Rawi‘s wife and brother, both of whom will b living in Germany, is a further assurance any issues that might arise in relation to Mr. Al— Ravi‘s release would soon come to his surety‘s attention. Furthermore, Mr. Al— Rawi‘s long—standing friendship with Mr. Jeshami, who has pledged $50,000 to secure Mr. Al—Rawi‘s release, will act to bind his conscience. Page 14 [66] It was clear from the evidence provided by Mr. Al—Rawi that he is highly incentivized to fully engage with and prosecute his appeal. As he indicated, he stands to lose everything in Germany as a result o his conviction. find reasonable, well—informed members of the public, members of the public who are "thoughtful, dispassionate, informed of the circumstances of the case and respectful of society‘s fundamental values" would have confidence in Mr. Al— Rawi‘s release on bail (67) |I granted Mr. Al—Rawi‘s bail on the basis o the "Germany" release plan containing conditions to keep the peace and be of good behaviour, atend Court as directed, reside at a specified address unless permission to reside elsewhere is obtained from the Court, have no direct or indirect contact with the victim, report weekly to the police by telephone, and surrender himself into custody in advance of the appeal decision being released. In addition, the release plan requires Mr. Al« Rawi to: attend in person at a Chambers hearing in the Appeal Court at least two weeks prior to the date of his appeal hearing, attend in person at the appeal hearing, and attend in person at a Chambers hearing in the Appeal Court at least two weeks prior to the date when the appeal decision will be released. He must also surrender into custody in advance of the release of the decision. [68] If Mr. Jeshamni was to render as surety, Mr. Al—Rawi has undertaken as a condition of his release to surrender himself to the Court within seven days of the Court advising him of this development. [69] |I thank Mr. Hutchison and Mr. Gumpert for heir very helpful writen and oral submissions and the professionalism they demonstrated throughout this proceeding. — &. VE Derick, J.A.