



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Manasseri, 2015 ONCA 3


DATE: 20150106

DOCKET: M44517 (C55794)

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Applicant

and

Charlie Manasseri

Respondent

Shawn Porter, for the applicant

Philip Campbell, for the respondent

Heard: December 19, 2014

Application to revoke the order of judicial interim release
    made on October 24, 2014 by Epstein J.A. and for an order to cancel the recognizance
    of bail entered pursuant to the order of Strathy J.A., dated April 15, 2014.

Watt J.A.:

[1]

A chance meeting at a set of gas pumps provides the genesis for this
    application to revoke an order for release pending appeal and to return a
    convicted murderer to prison to await the determination of his appeal to this
    court.

THE BACKGROUND FACTS

[2]

A brief reference to prior proceedings and to the events that occurred
    at trial is sufficient background to an understanding and determination of this
    application.

The Trial Proceedings

[3]

Charlie Manasseri and George Kenny assaulted Brian Fudge at an Ottawa
    bar early on New Years Day, 2005. Fudge never regained consciousness. He died
    on January 2, 2005.

[4]

Manasseri and Kenny were jointly tried for their involvement in Brian
    Fudges death. Manasseri was charged with and convicted of second degree
    murder. Kenny was charged with manslaughter and convicted of assault causing
    bodily harm.

The Causation Issue at Trial

[5]

The assaults on Fudge, first by Manasseri then by Kenny, occurred
    separately. Whose blows caused Brian Fudge to die was an issue at trial. The
    verdict of the jury indicates that its members were satisfied beyond a
    reasonable doubt that the blows inflicted by Manasseri caused Brian Fudges
    death, not the later beating administered by Kenny.

[6]

The principal witness on causation at trial was Dr. Yasmine Ayroud, the
    forensic pathologist who did the post-mortem examination on Brian Fudges body.
    Dr. Ayroud concluded that Brian Fudge died of a diffuse axonal injury caused by
    blows inflicted by Manasseri. She rejected, or at least minimized, the
    possibility that death was caused by alcohol concussion syndrome that would
    have pointed to Kenny as the person who had caused death.

The Appellate Proceedings

[7]

Manasseri and Kenny have appealed their convictions. Manasseri will seek
    to introduce fresh evidence on the issue of causation on the hearing of his
    appeal. The substance of the evidence consists of the opinions of two forensic
    pathologists, Dr. David Ramsay and Dr. Christopher Milroy. Each asserts that
    the death of Brian Fudge was due to alcohol concussion syndrome and would not
    have occurred but for the later assault by Kenny.

[8]

Neither Dr. Ramsay nor Dr. Milroy has been cross-examined on their affidavits.
    Neither appeal has been perfected.

The Release Order

[9]

On October 29, 2013 Charlie Manasseri was ordered released from custody
    pending the determination of his appeal.  The order required Manasseri to enter
    into a recognizance in the amount of $125,000, with two named sureties, but
    without deposit. The sureties are Manasseris brother and his sister-in-law.

[10]

The
    recognizance on which Manasseri was released included several conditions, among
    them this:

REFRAIN from any direct or indirect communication with the
    owners and employees of Le Skratch bar, any witnesses in the matter, and the
    family of Brian Fudge.

[11]

The
    original release order of October 29, 2013 has been extended twice by judges of
    this court because counsel for Manasseri has not perfected his appeal by the
    dates specified in the order. On each occasion, Manasseri has entered into a
    new recognizance. On each occasion, that recognizance has included the
    non-communication term excerpted in the immediately preceding paragraph.

[12]

A
    recognizance containing the non-communication term was in force on October 27,
    2014.

The Gas Station Incident

[13]

Around
    9:30 p.m. on October 27, 2014, Dr. Ayroud was at a gas station fueling her
    vehicle. Charlie Manasseri approached her from the other side of the pump
    island and began to speak to her.

[14]

Manasseri
    identified himself to Dr. Ayroud and pointed to the bar across the road as the
    place where the altercation had occurred. He made several references to the
    trial and its consequences including how long he had spent in custody before
    being released, the difficulties he had in trying to find a job and various health
    problems from which he suffered. Manasseri complained about the bias of the
    police, the frailties of the evidence against him and the competence of his
    trial counsel.

[15]

Manasseri
    explained to Dr. Ayroud that he needed to find someone to contradict the evidence
    that she had given at trial. He walked over to a panel on the wall and hit it
    hard several times with both fists, then said something to the effect that had
    he done that to Brian Fudge, Mr. Fudge would have had sustained more injuries.
    The gas station attendant came outside to see whether everybody was okay.
    Both Dr. Ayroud and Manasseri replied yes.

The Request for Silence

[16]

As
    Manasseri and Dr. Ayroud parted company, Manasseri said Thank you. I hope, I
    hope you can keep this private. Because Im not allowed to talk to witnesses and
    I, I just realized that you are a witness. Have a good night. Drive carefully.

The Police Investigation

[17]

About
    a week later, on November 4, 2014, Dr. Ayroud reported the incident to the
    Crown Attorneys Office and the Ottawa Police Service. She turned over the
    notes she had made about the incident to the police the following day.
    Subsequently, police interviewed the attendant who had been on duty at the gas
    bar when the incident occurred, reviewed a video he had taken on his cellphone
    and watched what appeared on the security video at the gas station.


The Charges

[18]

On
    November 14, 2014 police charged Manasseri with breach of recognizance under s.
    145(3) of the
Criminal Code
. Manasseri did not request a bail hearing
    on the charge and remains in custody as a result.

THE MOTION

[19]

The Crown seeks an order revoking the
    order directing the release of Manasseri pending the determination of his
    appeal to this court and cancelling the recognizance into which he entered
    under that order.

[20]

For his part, Manasseri acknowledges
    the authority of a single judge of appeal to make the orders sought and
    recognizes the likelihood that they will be made. What Manasseri seeks is a new
    release order permitting him to be out of custody pending the determination of
    his appeal. He proposes a recognizance in a more substantial amount with an
    additional surety and subject to more stringent conditions.

The
    Positions of the Parties

[21]

The
    parties begin on common ground. Each acknowledges the authority of a chambers
    judge to make an order under s. 679(6) of the
Criminal Code
revoking
    an order releasing an appellant pending determination of his or her appeal to
    the court of appeal and cancelling the form of release that gives effect to
    that order.

[22]

For
    the Crown, Mr. Porter accepts the onus of establishing a reasonably grounded
    belief that Charlie Manasseri contravened his recognizance or committed an
    indictable offence after his release from custody. He submits that he has met his
    onus, but that Manasseri has failed to show cause why his detention in custody
    is not justified within s. 515(10) of the
Criminal Code
.

[23]

Mr.
    Porter says that the materials filed on the application demonstrate a violation
    of the non-communication term of the release order and recognizance. The
    exchange between Manasseri and Dr. Ayroud demonstrates Manasseris knowledge of
    her role as a witness at his trial, the critical importance of her evidence to
    his conviction and the need for contrary evidence if his appeal is to succeed.
    Manasseris parting remarks demonstrate his appreciation of the unlawful nature
    of his conduct and an attempt to sequester it from investigative view.

[24]

Mr.
    Porter contends that Manasseris case for a fresh release order collapses under
    its own weight. This was a serious breach. It occurred while Manasseri was
    bound by a recognizance in a substantial amount. His brother and sister-in-law
    were his sureties. He attempted to cover up the breach, at the same time
    acknowledging the impropriety of his conduct.

[25]

For
    Manasseri, Mr. Campbell recognizes the virtual inevitability of a revocation of
    the release order and cancellation of the recognizance. He focusses his
    submissions on the case for a new release order and fresh recognizance.

[26]

Mr.
    Campbell says that the appeal against conviction has significant merit: the
    fresh evidence demonstrates that Manasseris assault on Fudge was not a
    significant contributing cause of Fudges death. It would be contrary to the
    interests of justice to require Manasseri to remain in custody for several
    months as the fresh evidence record is completed while Kenny, the gratuitous
    beneficiary of an erroneous verdict, remains out of custody.

[27]

Mr.
    Campbell contends that one isolated incident should not result in Manasseris
    return to prison. He was out of custody for several years prior to trial and
    for a year after conviction without any scent of a breach. He proposes an
    additional surety, Manasseris partner, who well understands the obligations of
    a surety and, by vocation, is an experienced supervisor. He has a valid defence
    to the charge of failure to comply with the recognizance and will advance it
    fully at trial. Additional reporting terms will make the point that compliance
    is not optional.

The Governing Principles

[28]

Brief
    reference to the authority to make the orders Crown counsel seeks will furnish
    the foundation necessary for the discussion that follows.


The Statutory Authority

[29]

Section
    679(6) of the
Criminal Code
makes the provisions of ss. 525(5), (6)
    and (7) applicable to persons who have been released from custody pending
    determination of their appeal to the court of appeal: with such modifications
    as the circumstances require.

[30]

Among
    the incorporated provisions, s. 525(5) permits a judge (of the superior court
    of criminal jurisdiction
[1]
)
    to issue a warrant for the arrest of an accused who has been released from
    custody if the judge is satisfied that there are reasonable grounds to believe
    that since release an accused:


i.

has violated or is about to violate his or her form of release; or


ii.

has committed an indictable offence
[2]
.

Section 525(6) authorizes a peace officer to arrest an
    accused without warrant where the officer has the same reasonably grounded
    belief that would permit issuance of a warrant of arrest under s. 525(5).

[31]

The
    final incorporated provision, s. 525(7), authorizes release of an accused
    arrested with or without warrant under either s. 525(5) or s. 525(6), provided
    the accused shows cause why his or her detention in custody is not justified on
    any ground enumerated in s. 515(10). Section 525(7) lacks the detail contained
    in ss. 524(4) and 524(8), which require a judicial finding of previous or
    anticipated breach or commission of an indictable offence since release as a
    condition precedent to cancellation of the form of release and a hearing at
    which the accused is entitled to show cause for release.

[32]

The
    inscrutable such modifications as the circumstances require, a close relative
    of
mutatis mutandis
, has a chequered past with judges of this court.
    But after a few skirmishes along the way, the parties agree that, at least
    where an appellant is in custody on a charge of failure to comply with a
    recognizance entered into pursuant to an order for release pending appeal, a
    chambers judge has authority to:


i.

revoke the release order;


ii.

cancel the recognizance; and


iii.

where the appellant shows cause that his or her detention is not
    necessary within s. 515(10) of the
Criminal Code
, order the appellants
    release from custody on a fresh recognizance.

See,
R. v. Dallaire
(2001), 141 O.A.C. 65, 40
    C.R. (5th) 385 (C.A.  Chr.s), at paras. 11-14. See also, Trotter,
The Law
    of Bail in Canada
(3rd ed.), s. 11.6, at p. 11-19.


The Principles Applied

[33]

For
    the reasons that follow, I am satisfied that the current order in accordance
    with which Manasseri was released from custody pending the hearing of his
    appeal should be revoked and the recognizance issued to give effect to that
    order cancelled. Further, at least until such time as counsel for Manasseri can
    provide a schedule for the expeditious completion of the fresh evidence
    materials and perfection of the appeal, Manasseri will remain in custody.

[34]

First,
    I am satisfied, as the parties agree, that I have the authority to revoke the
    release order and cancel the recognizance.

[35]

Charlie
    Manasseri is already in custody, as a result of his arrest on a charge of failure
    to comply with the recognizance entered into under a release order made by a
    judge of this court. He was not arrested, so far as I can determine, on the
    basis of any authority incorporated by reference in s. 679(6). He has received
    timely and detailed notice of the basis of this application.

[36]

Apart
    altogether from the fact of the charge of failure to comply, the materials
    filed in support of the application satisfy me that there are reasonable
    grounds to believe that since his release pending the determination of his
    appeal to this court, Charlie Manasseri has contravened the recognizance on
    which he was released and committed an indictable offence.

[37]

Manasseri
    approached Dr. Ayroud. He recognized her, not only as a witness from his trial,
    but as a witness whose opinion Manasseri needs to contradict on appeal if his
    appeal is to succeed. It was her opinion about cause of death that tended to
    assign responsibility for the killing to Manasseri. That Manasseri knew that
    speaking to Dr. Ayroud was a breach of his release terms seems clear from his
    parting remarks about keeping the conversation secret.

[38]

Mr.
    Campbell did not argue strenuously that a case for revocation and cancellation
    had not been established. The order releasing Manasseri pending the
    determination of his appeal is revoked and the recognizance entered into to
    give effect to that order is cancelled.

[39]

Turning
    next to whether Manasseri has shown cause why his detention is not justified
    under s. 515(10) of the
Criminal Code
, I am not persuaded he has done
    so.

[40]

At
    the outset, I readily acknowledge that for several years prior to trial and for
    about a year after his release pending the determination of his appeal, no
    failures to comply were recorded. Further, the proposed fresh evidence, if
    accepted, appears to present an arguable basis for a new trial.

[41]

The
    story could have ended there. And would have ended happily for Charlie
    Manasseri. But he could not leave well enough alone. He decided to add another
    chapter, one that has a different ending. And not a happy ending.

[42]

Single-handedly,
    Charlie Manasseri converted a chance sighting at a gas station into what at
    first appears a clumsy attempt at witness intimidation. He knew that he was not
    to communicate, either directly or indirectly with anyone who had been a
    witness at his trial for second degree murder. He recognized Dr. Ayroud. He
    knew she had been a witness. Not just any witness, but the witness whose
    evidence explained what caused Brian Fudges death and, as a result, laid
    responsibility for that death right at Charlie Manasseris doorstep. He
    complained to her of his plight. He spoke of the need to get evidence to
    contradict her. And to make his point that he was not responsible for Brian
    Fudges death, he pounded on a panel to demonstrate the damage he could have
    done had he been minded to do so. That Dr. Ayroud was not intimidated is beside
    the point.

[43]

When
    these events occurred, Charlie Manasseri was bound by the terms of a
    recognizance not to communicate with anyone who testified at his trial. His
    brother and sister-in-law had pledged $125,000 to ensure his compliance with
    the terms of his release. That was not enough to deter him from intentionally
    communicating with a critical witness. Frustration with the pace of appellate
    proceedings affords no justification for this conduct. Adding a surety,
    increasing the amount of the recognizance or tightening up its terms seem
    unlikely to enhance the prospect of compliance.


CONCLUSION

[44]

The
    release order is revoked. The recognizance is cancelled. No new recognizance
    will issue.

[45]

I
    leave open the prospect of a further application on fresh material including a
    schedule for expedited completion of the fresh evidence record, perfection of
    the appeal and disposition of the outstanding charge of failure to comply.

Released: January 6, 2015 (DW)

David
    Watt J.A.





[1]
Under s. 2 of the
Criminal Code
,
    superior court of criminal jurisdiction includes both the Court of Appeal and
    the Superior Court of Justice.



[2]
Under s. 34(1)(a) of the
Interpretation
    Act
, R.S.C. 1985, Chapter I-21, as amended, an offence is deemed indictable
    if D may be prosecuted for the offence by indictment.


