



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Manasseri, 2017 ONCA 226

DATE: 20170321

DOCKET: M47464 (C55794)

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Charlie Manasseri

Applicant

Philip Campbell, for the applicant

Shawn D. Porter, for the respondent

Heard: February 9, 2017

Application for release pending new trial, ordered in
R. v.
    Manasseri
, 2016 ONCA 703.

Watt J.A.:

[1]

Déjà vu all over again?

[2]

Charlie Manasseri is in jail. He
    wants out of jail.

[3]

The last time Charlie Manasseri
    got out of jail, he got into trouble. He got arrested and sent back to jail.

[4]

Charlie Manasseri says this time
    will be different. He has learned his lesson. The case against him is in
    tatters. The prospect of conviction approaches the vanishing point.

[5]

The Crown opposes Charlie
    Manasseri's release. Detention is necessary in the public interest and to
    maintain public confidence in the administration of justice.

[6]

These reasons explain why I have
    decided to order Charlie Manasseri's release from custody until his new trial
    has been completed. And this despite his chequered past on release.

The BACKGROUND FACTS

[7]

The issues raised on this
    application do not require a forced march through the evidence adduced at
    trial. But something need be said about the issues in dispute at trial, on
    appeal and in any future proceedings that may take place, as well as some
    procedural steps along the way.

The Death of Brian
    Fudge

[8]

Over a dozen years ago  on New
    Year's Eve, 2005  two men assaulted Brian Fudge in an Ottawa bar. Brian Fudge
    was nineteen, and very drunk. Charlie Manasseri assaulted Brian Fudge first.
    Fudge was escorted from the bar by an employee and a friend. At the bottom of a
    set of stairs leading to the street, George Kenny punched Brian Fudge.
    Unconscious from Kenny's blow, Brian Fudge crumpled to the ground. He never
    regained consciousness and died in hospital.

The Arrest and
    Release of Charlie Manasseri

[9]

Within days of Brian Fudge's death,
    police arrested Charlie Manasseri on a charge of second degree murder. George
    Kenny was charged with assault in connection with Fudge's death, as well as
    assault causing bodily harm for an assault on Brian Fudge's friend. Later,
    police charged Kenny with manslaughter and joined him with Manasseri on the
    same information.

[10]

About a month after his arrest,
    Charlie Manasseri was released from custody on a recognizance with sureties and
    subject to a series of conditions.

[11]

A year after his release from
    custody, Manasseri was arrested for an alleged breach of the terms of his
    recognizance. Six weeks later, he was released from custody on the same terms.
    The charge on which he had been arrested was withdrawn. He remained out of
    custody until he was convicted of second degree murder almost six years later.

The Case for the Crown at Trial

[12]

The central issue at the joint
    trial of Manasseri and Kenny was who caused Brian Fudge's death. Kenny?
    Manasseri? Was each a principal, since neither was a party to the other's assault?

[13]

The only evidence adduced at trial
    about the mechanism or cause of death was tendered by the Crown. The mechanism
    advanced was diffuse axonal injury (DAI), a process that pointed towards
    Manasseri as the killer and away from Kenny.

[14]

The jury found Manasseri guilty of
    second degree murder and Kenny guilty of assault causing bodily harm.

[15]

Both Manasseri and Kenny appealed.

The Fresh Evidence

[16]

During the lengthy period the
    appeals from conviction were outstanding, counsel for Manasseri assembled
    reports from a neuropathologist and a forensic pathologist which disputed the
    mechanism of death advanced by the Crown's experts at trial. The Crown also
    obtained reports from two other forensic pathologists. Each expert was
    cross-examined.

[17]

At the risk of oversimplification,
    the effect of the fresh evidence was to show that:

i.

DAI was
not
the mechanism or cause of Brian Fudge's death;

ii.

alcohol concussion syndrome (ACS)
    was the mechanism or cause of death according to three of the four experts; and

iii.

George Kenny's blow was the
    primary contributor to Brian Fudge's death.

The experts were divided
    about the role of Manasseri's blows in the death of the deceased. Two experts,
    a neuropathologist and a forensic pathologist, said Manasseri's blows did not contribute
    to Brian Fudge's death. Two forensic pathologists said they could not eliminate
    Manasseri's blows as a contributing cause.

Release Pending
    Appeal

[18]

After disclosure of some of the
    reports to be tendered as fresh evidence on the hearing of the appeal, Charlie
    Manasseri was released from custody pending the determination of the appeal.
    Manasseri entered into a recognizance in the amount of $125,000 with his
    brother and sister-in-law as sureties and subject to various conditions. Among
    the conditions was a term that prohibited direct and indirect communication
    with any witnesses who had testified at trial.

The Breach and
    Revocation Proceedings

[19]

About a year after his release
    from custody pending the determination of his appeal, Charlie Manasseri approached
    the pathologist who had testified at his trial. The meeting occurred at a gas
    bar where both happened to be refueling their vehicles. As a result of his
    conduct, Manasseri was arrested on a charge of failing to comply with his
    recognizance and detained in custody. He did not request a judicial interim
    release hearing.

[20]

The Crown applied to revoke
    Manasseri's release pending appeal. The motion succeeded.

[21]

A judge of the Ontario Court of
    Justice convicted Manasseri of failing to comply with his recognizance that
    governed his release pending appeal. The judge sentenced Manasseri to time
    served, about ten months. In separate proceedings in the Superior Court of Justice,
    a judge noted Manasseri's bail for estreatment in the full amount of $125,000.

The Appeal

[22]

The appeal hearing extended over
    three days. At the conclusion of the first day of the hearing, Manasseri fired
    his counsel, apparently of the view that further arguments should have been
    made on his behalf. The next day, Manasseri reversed field, reengaged counsel
    and the hearing continued.

[23]

On September 28, 2016, this court
    allowed Manasseri's appeal, set aside his conviction and ordered a new trial.
    The court also allowed Kenny's appeal, set aside his convictions and entered a
    stay of proceedings.

The Motion for Leave
    to Appeal

[24]

On the second to last day for
    doing so, the Crown served Charlie Manasseri in custody with a motion for leave
    to appeal to the Supreme Court of Canada from the decision of this court.

[25]

The single ground upon which the
    Crown seeks leave is:

Whether the Court of Appeal for Ontario established a new,
    legally erroneous threshold for the admission of evidence that was not led at
    trial owing to a reasonable tactical decision.

[26]

About six weeks after service of
    the motion on Charlie Manasseri, counsel who appeared on his behalf in the
    appeal to this court filed a response to the leave motion. No decision has been
    made on the motion.

The New Trial
    Proceedings

[27]

Within days of the service of the
    motion for leave to appeal, Charlie Manasseri appeared without counsel before a
    judge of the Superior Court of Justice at Ottawa for a judicial pre-trial. The
    pre-trial judge fixed a trial date, said to be the earliest date available, of
    October 10, 2017.

[28]

Charlie Manasseri says he wants
    counsel who represented him on appeal to appear for him at the new trial. But
    counsel is not available on the date set for trial because of a prior
    commitment in a court of equivalent jurisdiction elsewhere in the province.

[29]

Legal Aid authorities have
    authorized counsel to represent Manasseri in the proceedings before the Supreme
    Court of Canada, but have not yet done so in connection with any future trial
    proceedings that may take place.

THE APPLICATION FOR RELEASE

[30]

Charlie Manasseri applies for
    release from custody until his new trial has been completed. The Crown opposes
    Manasseri's application on both procedural and substantive grounds. I will
    consider first the procedural issue raised by the Crown, thereafter the merits
    of the application.

The Procedural Issue: The Forum
    for the Application

[31]

At the outset, Crown counsel
    queries whether this application should be heard by a judge of the Superior
    Court of Justice in Ottawa where any future trial proceedings will be conducted,
    rather than by a judge of the Court of Appeal for Ontario, a court that has
    finished its business with this case. Resolution of this issue requires no
    further reference to what has gone on before, but will be helped by a brief
    reference to the positions advanced by the parties and a thumbnail sketch of
    the governing principles.

The Positions of the
    Parties

[32]

The Crown acknowledges that both a
    single judge of this court and a judge of the Superior Court of Justice have
    jurisdiction to decide whether a person in custody awaiting a new trial
    directed by this court should remain in or be released from custody until that
    trial is completed. However, where the case has been returned to and is now
    managed by the trial court, and where a date has been set for a new trial, any
    application for release pending trial, according to the Crown, should be heard
    there, not here.

[33]

The Crown points out that trial
    courts are better equipped than appellate courts to conduct contested judicial
    interim release hearings. Several affidavits have been filed in support of this
    application. Crown counsel wants to cross-examine Manasseri about his assertion
    that he will comply with the terms of his release. And to cross-examine the
    proposed sureties in light of their obvious failure to adequately supervise
    Manasseri's conduct when he was released pending appeal. And those persons are
    in Ottawa, not here.

[34]

Charlie Manasseri acknowledges
    that judges of the Court of Appeal for Ontario and the Superior Court of Justice
    have concurrent jurisdiction to determine whether a person for whom a new trial
    has been ordered should be released from custody pending that trial. But he
    says, the circumstances in this case favour determination of this issue by a
    judge of the court that ordered the new trial.

[35]

According to Manasseri, several
    factors favour this court as a forum to resolve this dispute. Manasseri is in
    custody because of an order I made revoking his release order because he
    breached its terms. What is sought here is the functional equivalent of lifting
    or removing that revocation order, something that should be done by the judge
    who issued the order or another judge of the same court. A judge of the court
    that heard the appeal is most familiar with the evidentiary record, in
    particular, the impact of the fresh evidence on the likelihood of conviction at
    a new trial, a significant factor in the release/custody decision.

[36]

Manasseri also points out that the
    hearing need not be protracted. He queries the likelihood of cross-examination
    of any of the affiants. None took place at the initial hearing. The Crown's
    opposition is based on the secondary and tertiary grounds, neither of which are
    likely to be advanced measurably through cross-examination of the applicant or
    his sureties.

The Governing
    Principles

[37]

The enabling statutory authority
    is s. 679(7.1) of the
Criminal Code
, which provides:

Where, with
    respect to any person, the court of appeal or the Supreme Court of Canada
    orders a new trial, section 515 or 522, as the case may be, applies to the
    release or detention of that person pending the new trial or new hearing as
    though that person were charged with the offence for the first time, except
    that the powers of a justice under section 515 or of a judge under section 522
    are exercised by a judge of the court of appeal.

[38]

At first light, s. 679(7.1) does
    three things:

i.

it treats an accused for whom a
    new trial has been ordered as if that person were charged with the same offence
    for the first time;

ii.

it makes the judicial interim
    release hearing provisions of ss. 515 and 522 applicable to the
    release/detention determination; and

iii.

it assigns the jurisdiction of the
    justice (s. 515) or judge (s. 522) to conduct the hearing to a judge of the
    court of appeal.

[39]

On its face, s. 679(7.1) does not distinguish
    among the various stages of proceedings that follow a court of appeal's order
    for a new trial and the commencement of that trial. The phrase "pending
    the new trial", which I take to mean "while awaiting" or
    "until" the new trial, is oblivious to procedural steps, like setting
    a trial date, holding pre-trial conferences, setting schedules for pre-trial
    motions and the like.

[40]

Judicial decisions have
    interpreted the phrase "pending the new trial" to encompass two
    discrete time periods with implications for the forum in which the application
    for release is heard and determined. Those time periods are:

i.

the time between the order for a
    new trial and the successful appellant's first appearance in the trial court;
    and

ii.

the time between the first appearance
    in the trial court and the start of the new trial.

See,
R. v. Barbeau
(1998), 131 C.C.C. (3d) 350 (Que. C.A.)
(Fish
    J.A., in chambers, at p. 352;
R. v. Ranger
(2003), 180 O.A.C. 138 (C.A.) (Feldman J.A., in
    chambers, at para. 9.

[41]

In the first time period, a judge
    of the court of appeal has exclusive jurisdiction over release pending a new
    trial:
Barbeau
, at p. 352;
Ranger
, at para. 10;
R. v. Vincent
, 2008 ONCA 76, [2008] O.J. No. 534, (Sharpe J.A., in
    chambers), at para. 7;
R. v. Geddes
, 2012 MBCA 31, 100 W.C.B. (2d) 817 (Chartier J.A., in chambers), at
    para. 3. In the second time period, a judge of the court of appeal and a judge
    of the trial court have concurrent jurisdiction over release pending a new
    trial:
Ranger
, at paras. 19, 21;
Vincent
, at para. 8.

[42]

Where concurrent jurisdiction
    exists, court of appeal judges have often declined to hear the application
    transferred it to the trial court:
Barbeau
, at p. 352;
Ranger
, at paras. 27-29;
Vincent
, at paras. 16-17.

[43]

Typically, in determining the most
    appropriate forum for the hearing and determination of the application, we
    reject any closed list of factors, as well as any single conclusive
    determinant. Relevant considerations include, but are not limited to:

i.

the geographic location of the
    person, the proposed sureties, counsel and where necessary, witnesses.

ii.

the nature of the hearing, including
    the reasonable necessity of the introduction of
viva voce
testimony;

iii.

the issues in controversy;

iv.

the anticipated length of the
    hearing;

v.

the need for familiarity with the
    appellate record and the reasons provided for ordering a new trial;

vi.

the relationship, if any, between
    the issue of release and the hearing and scheduling of the new trial;

vii.

the review mechanism available to
    any party aggrieved by the decision;

viii.

the nature of the record required
    for the hearing; and

ix.

the timing of the hearing.

See,
Ranger
, at paras. 22-23, 27-28;
Vincent
, at paras. 16-17.

The Principles
    Applied

[44]

A combination of circumstances satisfies me that this court is the
    appropriate forum in which to determine whether Charlie Manasseri should remain
    in or be released from custody until any new trial in which he may be required
    to participate has been completed.

[45]

First, the basis of Manasseri's detention. An order made by this court
    is the single basis upon which Charlie Manasseri remains in custody.

[46]

Charlie Manasseri was released from custody pending determination of his
    appeal to this court. Later, he was charged with failure to comply with his
    recognizance and detained in custody. He did not seek judicial interim release
    on that charge. On application by the Crown in this court, Manasseri's
    recognizance was cancelled and he was ordered detained in custody.

[47]

In due course, Charlie Manasseri was tried on the charge of failure to
    comply with the recognizance into which he had entered when released from
    custody pending determination of his appeal. He was convicted and sentenced for
    that offence. His sentence was completed several months ago. The detention
    order made when his recognizance was cancelled in this court is now the sole
    basis for his detention.

[48]

Under the authorities, this court and the Superior Court of Justice have
    concurrent jurisdiction to conduct this hearing because Manasseri has appeared,
    had a pre-trial and been assigned a trial date in the Superior Court of
    Justice. All recent bail proceedings on the only charge that remains
    outstanding against him have been conducted in this court, a factor suggesting
    that this is the court in which they should be concluded.

[49]

Second, the issues in controversy.

[50]

The Crown opposes release here on the basis of both the secondary and
    tertiary grounds. The principal evidence relied upon in support of the
    secondary ground as a basis to continue Manasseri's detention is his conduct in
    breaching his recognizance on which he was released pending the determination
    of his appeal. The materials filed on this application include the reasons for
    conviction and the sentencing proceedings at Manasseri's trial on the breach of
    recognizance charge. Oral argument failed to unearth any suggestion of an
    evidentiary shortfall to determine whether detention is justified on the
    tertiary ground.

[51]

Third, the nature of the record required for the hearing.

[52]

A statutory factor to be considered in assessing the tertiary ground is
    the prospect of conviction. A thorough familiarity with the trial and fresh
    evidence record is critical to an informed assessment of that prospect. That
    familiarity resides here.

[53]

Fourth, the nature of the review mechanism.

[54]

Second degree murder is an offence
    within s. 469 of the
Criminal Code
. Release pending trial may only be granted by a judge of the superior
    court of criminal jurisdiction under s. 522 of the
Criminal Code
. Section 680 of the
Criminal Code
governs reviews of those decisions. The same review
    procedure applies to decisions made by judges of the court of appeal under s.
    679.

[55]

Finally, the nature of the record
    required for the hearing and the anticipated length of the hearing.

[56]

In his factum and oral argument,
    Crown counsel said he wanted to cross-examine Charlie Manasseri on his
    affidavit, to test Manasseri's assertion of a lesson learned from prior
    experience and a professed willingness to bow to the terms of a release order.
    And Crown counsel suggested that he also wished to cross-examine the proposed
    sureties on their failure to adequately supervise Manasseri when he was
    released pending appeal.

[57]

On its own, this factor, advanced
    in favour of a hearing in the Superior Court of Justice, moves no freight. The
    request is a recent arrival. On the initial application for release pending
    appeal, release was opposed on the same grounds. The same deponents filed
    affidavits containing similar assertions. None were cross-examined. Nor was
    cross-examination requested. One of the sureties was in court when the present application
    was heard. Yet no request to cross-examine was forthcoming.

[58]

It is for these reasons that I
    decided that this court was the appropriate forum in which to hear and
    determine the application for release pending any new trial that may be held.

The Substantive Issue: Release or Detention?

[59]

Some further background is necessary in order to place the claim for
    release in its proper setting.

The Additional Background

[60]

Charlie Manasseri is 55 years old. Putting aside his recent conviction
    for failing to comply with a recognizance, he has a handful of dated and
    unrelated convictions. He says that he has been involved in a relationship with
    a mature, gainfully employed woman for several years. The relationship has been
    interrupted by Manasseri's incarceration, but he proposes to live with her if
    released. She attended the release application but no affidavit has been filed
    to explain her characterization of the relationship or her willingness to take
    Manasseri in and ensure his compliance with any applicable terms of a release
    order.

[61]

For a seven-year period, from arrest to the conclusion of the trial,
    Charlie Manasseri was out of custody, bound by the terms of a recognizance. He
    was charged with a failure to comply with that recognizance and incarcerated
    for a few weeks after arrest, but the charge was withdrawn by the Crown.

[62]

Charlie Manasseri deposes to a history of employment. In recent years,
    when out of custody, he has bought, renovated and resold houses. He is hopeful
    of finding work if released, but acknowledges that his hopes may not be
    realized.

[63]

According to Manasseri, his health has deteriorated significantly since
    he has been incarcerated. He complains of a number of conditions and ailments
    and of the failure of correctional authorities to do anything about them.
    Further incarceration, he says, will only make matters worse.

[64]

About a year after his release pending appeal, Manasseri breached his
    recognizance. He converted an accidental meeting with a principal Crown witness
    at trial  the pathologist who conducted the post-mortem and established the
    cause of Brian Fudge's death  into a ten-minute harangue about his innocence
    and her faulty pathology. He blames his conduct on frustration and his belief
    in his innocence. A similar frustration likely prompted him to fire his counsel
    at the end of the first day of the hearing of his appeal, only to rehire him
    the following day.

[65]

The judge who found Manasseri
    guilty of failing to comply with his recognizance had a different
    characterization of the offence. The judge said:

77.     The
    offender did not try to directly or indirectly threaten the pathologist who
    testified for the Crown in his murder trial which resulted in a conviction and
    life sentence.

78.     However, he
    tried to improperly influence her testimony in a future trial if one was
    obtained. He did this by forcefully, although politely, telling her why she was
    wrong and by inference what harm she had done to him.

79.     He chose to
    do this at night at a semi-isolated location; approaching a much smaller
    person; angry and frustrated at times; pounding on a wall.

80.     This was an
    attempt to influence and to intimidate her; although not by the threat of
    violence, but that undercurrent was present. And given the size difference, the
    time of night, the semi-isolated location with no one between them and no one
    in that immediate area, I find the offender knew that a degree of intimidation
    was present.

81.     Of equal
    concern was his attempt again devoid of hostility or threats to convince and
    intimidate the pathologist into concealing what he knew to be his crime,
    violating his recognizance condition not to communicate with a witness in his
    ongoing murder case matter.

[66]

Tony and Pamela Manasseri are Charlie Manasseri's brother and
    sister-in-law. They were his sureties when he was released pending the
    determination of his appeal. An order of estreatment, in the full amount of the
    recognizance - $125,000  has been made against them. Yet they re-assert their
    willingness to act as sureties and promise increased vigilance to ensure
    compliance with any release order that may be made.

[67]

A judge of the Superior Court of Justice has fixed the commencement day
    of Manasseri's new trial as October 10, 2017. It is difficult to regard that
    date as anything but tentative. A motion for leave to appeal to the Supreme
    Court of Canada has been filed by the Crown and remains outstanding. When a
    decision on that motion will be given is uncertain, equally, the result. Even
    if the Supreme Court of Canada were to refuse leave to appeal, it seems
    unlikely that any new trial will take place seven months from now. Manasseri is
    currently unrepresented. He expresses a preference, at least at the moment, for
    appellate counsel to represent him at any new trial.

[68]

If the trial is to proceed in October 2017, appellate counsel will not
    be available to do so because of a prior commitment elsewhere in the province
    before a court of equivalent jurisdiction.

The Position of the Parties

[69]

Charlie Manasseri says that he should be released on a recognizance,
    with his brother and sister-in-law as sureties, and subject to stringent terms
    including a curfew, even house arrest, and more frequent reporting conditions.

[70]

Manasseri submits that a clear-eyed, dispassionate assessment of all the
    circumstances shows that his detention is not necessary for the protection or
    safety of the public, including any witnesses who testified at trial. Despite
    the earlier breach, for which he has paid his due and from which he has learned
    his lesson, there is no likelihood, let alone a
substantial
likelihood, that if released, he will commit a criminal offence or interfere
    with the administration of justice.

[71]

Manasseri points out that the breach occurred during a chance sighting
    at a gas bar, not as the result of a planned confrontation. He acknowledged the
    breach. He spent ten months in jail as a result of it. He jeopardized the
    financial security of his brother and sister-in-law. He will not do so again.

[72]

Manasseri emphasizes that, despite his recent breach, he has
    demonstrated in the past that he is capable of abiding by the terms of a
    recognizance. He was out of custody prior to trial for almost seven years on
    terms that were markedly less stringent than those he would willingly take on
    here and did not falter. Similarly, he spent about a year on bail pending
    determination of his appeal without incident.

[73]

Likewise, Manasseri says, he has established that his detention is not necessary
    on the tertiary ground  to maintain confidence in the administration of
    justice. Whether he has discharged this burden must be assessed from the
    perspective of a thoughtful person, one not prone to emotional immediate
    reactions, whose knowledge of this case is inaccurate or who disagrees with
    society's fundamental values.

[74]

Here, Manasseri continues, there is a significant risk that he is
    factually innocent of any crime of culpable homicide on the basis of the fresh
    evidence and the discredited evidence about the mechanism of death adduced by
    the Crown at his first trial. If he were acquitted of any crime of culpable
    homicide, or even if found guilty of manslaughter, the time he has already
    spent in custody would far exceed what would be a fit sentence. This would be
    all the more so if his detention were to continue until the end of trial.

[75]

Crown counsel acknowledges that the primary ground for detention  to
    ensure attendance at trial  is not in play here. But Manasseri has failed to
    establish that his continued detention is not necessary for the protection or
    safety of the public or to maintain confidence in the administration of
    justice.

[76]

On the secondary ground, Crown counsel says the circumstance which tells
    most heavily against Manasseri's application for release is his breach of the
    previous recognizance. It was not a breach of a term prohibiting him from
    consuming alcohol, or requiring compliance with a curfew, rather a term that
    enjoined communication with witnesses who testified at trial. And it was a
    breach accompanied by aggravating factors. Like an attempt, albeit
    unsuccessful, to intimidate a witness. A demonstrated awareness that what he
    was doing was prohibited. An attempt to persuade the pathologist, Dr. Ayroud,
    that her opinion, thus her testimony, was wrong. Pursuit of his theme for ten
    minutes. And a request for silence about the encounter.

[77]

The Crown says that it is a reasonable inference from what happened recently
    that, if released, Manasseri is likely to breach the terms of his recognizance
    again. Manasseri just doesnt get it. His self-portrayal as the victim in this
    entire piece permeates his conduct. He considers the incident with Dr. Ayroud
    "blown out of proportion". He claims his conviction for failure to
    comply was the result of ineffective assistance of trial counsel, an allegation
    he presses on his in-person appeal from that conviction.

[78]

Manasseri discharged appellate counsel (but rehired him) because he,
    Manasseri, knew better than counsel about "meritorious grounds of
    appeal" that experienced appellate counsel had not advanced.

[79]

The Crown contends that this is a man with a short fuse, a person with
    poor impulse control, who comes unglued even in the absence of provocation. The
    prospect that his sureties would suffer a significant financial loss by his
    breach of the terms of any recognizance did not curtail his conduct with Dr.
    Ayroud, and there is no reason to conclude that it would operate as a
    disincentive in the future.

[80]

On the tertiary ground, Crown counsel points out that detention on this
    basis is not limited to exceptional cases. Manasseri is awaiting trial on a
    very serious charge  second degree murder  that is punishable on conviction
    by imprisonment for life. The offence involved a savage and unprovoked attack
    on a significantly intoxicated youth who gave Manasseri no quarrel. The attack
    occurred in a public place in a crowd celebrating New Year's Eve. A central
    issue at trial will be causation  what caused Brian Fudge to die. And the case
    for the Crown on that issue remains intact, the fresh evidence notwithstanding.

The Governing Principles

[81]

The parties do not differ significantly on the principles that govern my
    decision on this application, but part company on the result that the
    application of those principles should yield in this case. A brief reminder
    about some of the controlling principles will not go amiss.

[82]

Section 679(7.1) of the
Criminal Code
requires me to consider
    and decide the application as if Manasseri were a person charged with second
    degree murder "for the first time". Section 522 of the
Criminal
    Code
governs release of a person charged with an offence listed in s. 469
    of the
Criminal Code
, such as second degree murder. Anyone charged
    with a s. 469 offence, according to s. 522, is to be detained in custody
    unless, offered a reasonable opportunity to do so, he or she shows cause why
    his or her detention is not justified on any of the grounds described in s.
    515(10).

[83]

The effect of the joint operation of ss. 679(7.1), 522(2) and 515(10) in
    this case is that Manasseri must show that his detention is not necessary on
    the secondary ground and not necessary on the tertiary ground as defined in ss.
    515(10)(b) and (c).

[84]

The
secondary
ground in s. 515(10)(b) focuses on and seeks to
    ensure against recidivistic conduct on release. The statutory reversal of onus
    for persons charged with second degree murder means that an accused must show
    that his or her detention is
not
necessary:

·

for the protection of the public; or

·

for the safety of the public

including victims, witnesses and persons under 18. This
    determination is to be made on the basis of all the circumstances, including
    any substantial likelihood that the accused will, if released,

·

commit a criminal offence; or

·

interfere with the administration of justice.

[85]

Three brief points should be made about the secondary ground.

[86]

First, to determine whether the secondary ground controls the
    release/detention decision, requires a consideration of
all
the
    circumstances. A relevant circumstance, neither exclusive, nor dispositive, is
    the substantial likelihood of recidivistic conduct ("commit a criminal offence")
    or an interference with the administration of justice.

[87]

Second, in connection with the specified circumstances encompassed by
    the clause "including
any substantial likelihood
that the accused
    will, if released from custody, commit", the italicized words refer to a
    probability of certain conduct, not a mere possibility. And the probability
    must be substantial, in other words, significantly likely.

[88]

Third, where, as here, the onus of showing cause for release falls on an
    accused, that accused must demonstrate not only that his or her detention is
    not necessary for the
protection
of the public, but also that it is
    not necessary for the
safety
of the public.

[89]

The
tertiary
ground holds that detention is justified if it is
    necessary to maintain confidence in the administration of justice. Several
    brief observations about the content and operation of this ground are germane.

[90]

First, as in the case of the secondary ground, whether detention is or
    is not necessary on this ground is to be determined by a consideration of
all
the circumstances, but in particular, the four factors Parliament has marked
    out for specific consideration in s. 515(10)(c):
R. v. Hall
, 2002 SCC
    64, [2002] 3 S.C.R. 309, at para. 40;
R. v. St-Cloud
, 2015 SCC 27,
    [2015] 2 S.C.R. 328, at para. 35.

[91]

Second, as in the case of the secondary ground, the use of the term
    "including" in relation to the listed factors negates any suggestion
    that the listed factors are dispositive of an order of detention on the
    tertiary ground:
St-Cloud
, at para. 68.

[92]

Third, to determine whether detention is justified on the tertiary
    ground, a judge is to make his or her appraisal objectively, through the lens
    of the four factors Parliament has specified, and with particular focus on
    those factors:
Hall
, at para. 41;
St-Cloud
, at para. 35.

[93]

Fourth, detention can only be justified on the tertiary ground if the
    judge, having considered the listed factors and related circumstances, is
    satisfied that a reasonable member of the community would be satisfied that
    denial of release is necessary to maintain confidence in the administration of
    justice:
Hall
, at para. 41;
St-Cloud
, at para. 35.

[94]

Fifth, the term "public" in s. 515(10)(c) refers to reasonable
    members of the public who are properly informed about the philosophy of the
    legislative provisions;
Charter
values; and the actual circumstances
    of the case:
Hall
, at para. 41;
St-Cloud
, at para. 74.

[95]

A "reasonable member of the public" is familiar with the
    basics of the rule of law in Canada and with the fundamental values of our
    criminal law, including those protected by the
Charter
. He or she
    knows the importance of the presumption of innocence and the right to liberty
    and that these are fundamental rights guaranteed by our Constitution. The
    reasonable member of the public also expects, perhaps even more so now, that
    anyone charged with a crime is entitled to be tried for it within a reasonable
    time:
St-Cloud
, at para. 79.

[96]

A final point before turning to the specific factors requiring
    consideration under s. 515(10)(c). In Canada, pre-trial release of those
    charged with crime is the cardinal rule and detention, the exception:
St-Cloud
,
    at para. 70;
R. v. Morales
, [1992] 3 S.C.R. 711, at p. 728. That said,
    sometimes, as here, the onus of demonstrating release is shifted to an accused
    who is required to demonstrate that detention is not necessary on the primary,
    secondary or tertiary ground.

[97]

One of the factors that a judge is required to consider in gauging the
    influence of the tertiary ground is the apparent strength of the case for the
    Crown. This requires consideration of the quality, and to some extent, the
    quantity of the evidence available to the Crown to prove its case. This
    assessment must also take cognizance of the defence advanced by the accused:
St-Cloud
,
    at paras. 58-59.

[98]

The second factor  the gravity of the offence  is measured objectively
    on the basis of the maximum and any minimum sentence permitted or required on
    conviction:
St-Cloud
, at para. 60.

[99]

The third factor  the circumstances surrounding the commission of the
    offence  involves consideration of the nature of the offence, as for example
    its violent, heinous or hateful nature; its context, for example domestic
    violence or gang activity; the involvement of others; the extent of the
    accused's participation; and the vulnerability of the victim:
St-Cloud
,
    at para. 61. The personal circumstances of the accused may also be relevant
    under the third factor including, in some cases, that the accused's trial will
    not be held until a much later date:
St-Cloud
, at para. 71.

[100]

The
    final listed factor  liability to a lengthy term of imprisonment on conviction
     refers to the range of penalty available upon conviction, including any
    mandatory minimum:
St-Cloud
, at paras. 64-65.

The Principles Applied

[101]

As
    I will explain, I am satisfied that Charlie Manasseri has demonstrated that his
    detention until his trial is completed is neither necessary nor justified, for
    the protection or safety of the public, or to maintain confidence in the
    administration of justice.

[102]

For
    all practical purposes, the single most significant factor upon which the Crown
    relied, and Manasseri seeks to overcome, is the nature and circumstances of his
    recent conviction for failure to comply with the recognizance upon which he was
    released pending the determination of his appeal to this court.

[103]

In
    my respectful view, the task the Crown sets for this prior conviction exceeds
    its capacity. I say so for several reasons.

[104]

First,
    neither the secondary nor the tertiary ground is established or rebutted by any
    single circumstance. Each case is different. And the answer in each case is
    determined by a consideration of all the circumstances. Each circumstance is
    worthy of individual consideration. That said, what is dispositive is their
    cumulative impact in light of the standard set by the applicable ground. There
    is no
primus inter pares
.

[105]

Second,
    a substantial likelihood of future recidivism does not follow from a single
    prior conviction of failure to comply with a recognizance. And even if such a
    conclusion were sustainable without regard to other circumstances, it is but a
    single factor to be considered in connection with the secondary ground.

[106]

Third,
    exclusive focus on recent events fails to take into account an accused's
    history on judicial interim release. To be certain, contemporaneous or recent
    conduct is important. But so is past performance. A single robin does not make
    a spring.

[107]

In
    connection with the secondary ground, it is important to remember that with
    ever-decreasing supervision, Charlie Manasseri was on judicial interim release
    prior to trial for nearly seven years without any established breach. His
    recent breach, to be certain, was serious and worthy of condemnation. It arose
    out of an accidental meeting, not a planned confrontation. For it, Manasseri
    incurred a substantial punishment. And rightly so. But the breach was more
    opportunistic than designed. And opportunity can be restricted by conditions
    short of detention.

[108]

On
    the tertiary ground, a reasonable member of the community, properly informed
    about the philosophy of the provisions,
Charter
values and the actual
    circumstances of the case, in my in respectful view, would not consider that
    Manasseri's detention is necessary to maintain confidence in the administration
    of justice.

[109]

Charlie
    Manasseri is presumed innocent of second degree murder. The case for the Crown
    is quite different than what Manasseri faced at his first trial. There, the
    expert evidence about the mechanism of death  DAI  pointed towards Manasseri.
    There was no contrary evidence. But a different tableau is likely to unfold at
    the second trial. A contrary view that denies DAI as the mechanism of death. ACS.
    A mechanism that tends to point away from Manasseri in the view of some, while
    others cannot exclude his contribution.

[110]

There
    is also uncertainty about the timing of the trial in light of the pending
    motion of the Crown for leave to appeal to the Supreme Court of Canada and the
    availability of counsel on the trial dates currently scheduled. Detention until
    the trial is completed, likely in 2018, would result in pre-disposition custody
    that would, in all probability, exceed any sentence imposed for any offence
    other than second degree murder.

CONCLUSION

[111]

For
    these reasons, I am satisfied that Charlie Manasseri should be released from
    custody until any new trial on the charge of second degree murder has been
    completed. He is to be released on a recognizance in the total amount of
    $125,000, without deposit, but with Tony and Pamela Manasseri as sureties and
    subject to the terms contained in Appendix 'A' to these reasons.

Released: March 21, 2017 ("DW")

"David Watt
    J.A."




Appendix A

1)       
    KEEP THE PEACE and be of good behaviour;

2)       
    REMAIN in the Province of Ontario;

3)       
    RESIDE at 3383 Cambrian Road, Ottawa, Ontario with Donna Mooney and provide
    written confirmation of your residence to the officer in charge of the Ottawa
    Police Service forthwith upon your release;

4)       
     REMAIN in your residence each day except between the hours of 6:00 a.m. and
    8:00 p.m. when you may be absent for the purposes of seeking or maintaining
    employment, attending school, medical appointments, court appearances or
    meetings with counsel or in the company of at least one of your sureties;

5)       
    REPORT forthwith upon your release to the officer‑in‑charge of the
    Ottawa Police Service, and thereafter each Monday or at such other time each
    week as may be arranged with the officer-in-charge;

6)       
    CARRY your bail papers with you at all times;

7)      
     NOTIFY the officer-in-charge of the Ottawa Police Service, the Crown
    Attorney's office in Ottawa and the Crown Law Office  Criminal in writing of
    any change of address within 24 hours of that change;

8)       SEEK
    and maintain gainful employment or continue to attend school;

9)       NOT
    attend Le Skratch bar and not attend any licensed premises;

10)     REFRAIN
    from any direct or indirect communication with the owners, former owners and employees
    or former employees of Le Skratch bar, any witnesses at your first trial, and
    the family of Brian Fudge;

11)
         ABSTAIN absolutely from the consumption of alcohol and
    from the non‑medical use of drugs;

12)     
    REFRAIN from possessing any firearm, cross‑bow, prohibited weapon,
    restricted weapon, prohibited device, ammunition or explosive substance and
    surrender to a peace officer, a firearms officer, or a chief firearms officer
    any such items currently in the applicant's possession, together with every
    authorization, licence and registration certificate relating thereto and held
    by the applicant;

13)     DEPOSIT
    your passport with the officer-in-charge of the Ottawa Police Service and not
    reapply for a new passport if the current passport expires;

14)     DELIVER
    to Crown Attorney's Office and the Crown Law Office - Criminal forthwith a copy
    of the recognizance of bail pending your new trial;

15)     NOTIFY
    the officer-in-charge, the Crown Attorney's office at Ottawa and the Crown Law
    Office  Criminal forthwith, in writing, if charged with any criminal or provincial
    offence while on release pending your new trial; and

16)     APPEAR at any new
    trial that may be held or surrender into custody if your conviction is
    restored.


