COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Manasseri, 2013 ONCA 647

DATE: 20131029

DOCKET: M42846 (C55794)

Watt J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Charlie Manasseri

Appellant/Applicant

Philip Campbell and Diana Lumba, for the appellant

Milan Rupic, for the respondent

Heard: September 12, 2013

Application for judicial interim release pending appeal against a conviction entered by the Honourable Justice Julianne A. Parfett of the Superior Court of Justice, sitting with a jury, on February 29, 2012.

Watt J.A.:

[1] On New Year’s Eve 2005, Brian Fudge and some friends went to the Skratch Bar in Ottawa to celebrate his birthday and New Year’s.

[2] Early on New Year’s Day, two men assaulted Brian Fudge.

[3] Charlie Manasseri was the first to assault Brian Fudge. While at the bar to order drinks, Manasseri and Fudge argued about who should be served first. Accounts of the assault vary from a mutual scuffle to Manasseri repeatedly smashing Fudge’s head against the top surface of the bar. In the end, blood appeared on Fudge’s forehead. Bouncers escorted Fudge, who was severely intoxicated, from the bar.

[4] Another man, whom the Crown alleged was George Kenny, also punched Brian Fudge. The blow caused Fudge to fall to the ground.

[5] Brian Fudge died the next day, January 2, 2005.

[6] Charlie Manasseri and George Kenny were jointly indicted and tried. Manasseri was charged with second degree murder and Kenny with manslaughter in connection with Brian Fudge’s death.[^1] The jury found Manasseri guilty of second degree murder and Kenny guilty of the included offence of assault causing bodily harm.[^2]

[7] Both Manasseri and Kenny have appealed their convictions. Kenny has already been released from custody pending the determination of his appeal to this court. By this application, Manasseri seeks to achieve the same result.

[8] These reasons explain why I have decided to allow Manasseri’s application and order that he be released from custody pending the determination of his appeal to this court.

THE BACKGROUND FACTS

[9] A brief review of some features of the circumstances of this case and its procedural history is essential to an appreciation of the grounds of appeal raised, thus whether the applicant has satisfied the requirement of s. 679(3)(a) of the Criminal Code and demonstrated that his appeal is not frivolous.

The Assaults

[10] The altercation between Manasseri (the applicant) and Brian Fudge began as a verbal dispute. Despite significant differences in the accounts of those who saw the altercation, all agreed that when the applicant and Fudge were separated, Brian Fudge moved away from the bar, talked to others, and spoke on his cell phone as the bouncer escorted him towards the stairs and out of the bar.

[11] Evidence was given about a second assault on Brian Fudge before he reached the bottom of the stairs, but no one suggests that anything that occurred as Fudge descended the stairs played any role in his ultimate demise.

[12] At the bottom of the stairs and without any apparent provocation, George Kenny grabbed Brian Fudge by the shirt and punched him in the head. Brian Fudge crumpled to the floor, unconscious. He never regained consciousness.

[13] It is common ground that the applicant and Kenny did not know one another at the time each assaulted Brian Fudge. The Crown did not allege a common enterprise.

The Cause of Death

[14] The pathologist who conducted the post-mortem examination on the body of the deceased certified that Brian Fudge died of a closed head injury consistent with the consequences of blunt force trauma to the left side of his head.

Proof of Causation at Trial

[15] Crown counsel called three expert witnesses, including the examining pathologist, to prove causation at trial. Each expressed the view that the deceased died of a diffuse axonal injury (DAI) likely caused by the applicant’s assault on him.

[16] The experts who testified for the Crown were cross-examined about the possibility that the deceased died from alcohol concussion syndrome (ACS). Each rejected, or at least minimized the possibility that ACS caused the deceased’s death as a result of the effect of Kenny’s single blow to the head of the deceased who was then in a state of acute alcohol intoxication.

[17] Trial counsel for the appellant did not adduce any expert evidence to put in play ACS as a substantial contributing cause of the deceased’s death based on the blow struck by Kenny.

[18] The physical findings at autopsy revealed only two relatively minor injuries to the deceased – a bruise on the left side of his head and an abrasion on the right. These findings did not reflect the nature and extent of the violence that several witnesses claimed the appellant had inflicted on Brian Fudge at the bar.

The Report of Dr. Michael Pollanen

[19] The Chief Forensic Pathologist for Ontario, Dr. Michael Pollanen, reviewed the conclusions of the examining pathologist about what had caused Brian Fudge’s death. In his report, completed and disclosed to counsel nearly five years before the jury rendered its verdict, Dr. Pollanen tried to determine which blow caused Brian Fudge’s death. He concluded that the cause of death was “hypoxic encephalopathy and cerebral swelling in a man with head injury and acute ethanol intoxication”.

[20] Dr. Pollanen explained his conclusion about cause of death in these terms:

This question [which blow caused death?] has three dimensions. First, it is clear from the lack of severe facial and scalp/skull injuries that the history of the assaults does not accord well with the autopsy findings. On this basis, it is not clear that the history as presented is actually correct, i.e. the history of the severity of the assaults seems to be a less reliable indicator of “what happened”, the autopsy being or useful in this regard. Second, since there is no self-evident mechanistic explanation of how the assaults caused the lethal outcome, it is not clear which of the assaults was lethal. If the mechanisms I have discussed are applicable, one could argue that the second assault was more important than the first assault (‘concussion-alcohol’ hypothesis), or that both assaults together caused death (‘second impact syndrome’ hypothesis). Furthermore, given that the history does not accord well with the autopsy findings, the severity of the first assault seems to lack objective corroboration to the point that its medical significance might be questioned.

Overall, it is clear that death is associated with a head injury during acute ethanol intoxication, but I do not have satisfactory medical evidence to clearly indicate which of the two putative assaults actually caused Brian Fudge to die. This is based not only on the specifics of this case, but also the largely anecdotal and controversial nature of the medical knowledge in this area. However, there is some evidence to conclude that acute ethanol intoxication could have been a significant contributing factor in death, acting in concert with concussion.

In conclusion, I would certify the cause of death descriptively and emphasize that other non-medical evidence is likely to be more important in teasing out the legal relevance of the two putative assaults. (Emphasis in original)

The Proposed Fresh Evidence

[21] The applicant proposes to tender for admission on appeal the expert opinion of Dr. David Ramsay, a highly qualified neuropathologist currently employed at the London Health Sciences Centre in London, Ontario. Dr. Ramsay holds several other appointments at academic institutions, hospitals, and in the Ontario Forensic Pathology Unit. In his report to appellate counsel, Dr. Ramsay concluded:

Various possibilities to explain Mr. Fudge’s death have been discussed. The explanation that most closely fits the witness accounts and the clinical and neuropathological findings is the ‘alcohol concussion’ hypothesis. This hypothesis suggests that the second blow to Mr. Fudge’s head triggered a cardiorespiratory arrest that led to fatal brain swelling, the function of the vital centres having been compromised by the effects of the alcohol. I cannot be sure whether and, if so, to what degree the first assault contributed to the fatal sequence of events arising from the second assault.

[22] Dr. Ramsay also offered his opinion about the cause of death expressed by the experts who testified for the Crown at trial. He explained:

The testimony of Drs. Ayroud, Jansen and Lesiuk indicates that Mr. Fudge died of a severe head injury, that the principal traumatic finding was diffuse axonal injury, and that one or other, or both, of the assaults could have been responsible. They did not accept the alternative possibility that death could have resulted from the ‘alcohol concussion syndrome’, which I believe to be the most credible explanation for Mr. Fudge’s demise. The evidence in support of this syndrome as the cause of death has not been detailed and explored in the trial record.

The Grounds of Appeal

[23] The solicitor’s notice of appeal filed on the appellant’s behalf alleges that the trial judge erred in failing to:

i. sever the applicant’s trial from the that of the co-accused, George Kenny;

ii. properly instruct the jury on the mental element required for murder; and

iii. correct inaccurate submissions made by the trial Crown about the degree of force used by the applicant on the deceased, and its significance on the mental element required for murder.

THE APPLICATION FOR RELEASE PENDING APPEAL

[24] The controverted issue between the parties relates to the requirement of section 679(3)(a) of the Criminal Code that an applicant for release pending appeal against conviction must demonstrate that the appeal is not frivolous. To a lesser extent, they tussle over whether, as a convicted murderer, the applicant’s detention is necessary in the public interest.

[25] A helpful beginning for the discussion that follows is a brief summary of the positions advanced by the parties on the hearing of the application.

The Position of the Applicant

[26] For the applicant, Mr. Campbell acknowledges that the case for release rests primarily on the strength of his application to introduce as fresh evidence the opinion of Dr. David Ramsay, the neuropathologist, about what caused Brian Fudge’s death. Mr. Campbell says that the case advanced for admission of Dr. Ramsay’s opinion as fresh evidence on appeal is formidable and the opinion itself demonstrates the applicant’s factual innocence of any crime of culpable homicide.

[27] Mr. Campbell points out that Dr. Pollanen, the Chief Forensic Pathologist, reviewed the conclusion of the Crown experts and was skeptical about their opinions on causation. Dr. Pollanen did not consider their conclusions that DAI caused Brian Fudge’s death to be a viable explanation. He described ACS as a possible and arguably preferable explanation, but was not firm in his view.

[28] Mr. Campbell acknowledges that Dr. Pollanen was available to be called as a defence witness at trial. But the equivocal nature of Dr. Pollanen’s evidence, and the fact that his opinion was not exculpatory of the applicant, left trial counsel with no alternative than to keep Dr. Pollanen on the sidelines. This was neither a tactical decision, nor an abandonment of ACS as the cause of the deceased’s death.

[29] The opinion to be proffered as fresh evidence, Dr. Ramsay’s conclusion that ACS was the likely cause of Brian Fudge’s death, is unequivocal. This opinion never got before the jury because the experts called by the Crown rejected it as a substantial contributing cause of death. Its acceptance by the trier of fact would exculpate the applicant of any crime of culpable homicide and demonstrate his factual innocence. The cogency of this evidence trumps any claim of lack of due diligence and would require its admission to vindicate the interests of justice.

[30] In connection with the public interest, Mr. Campbell underscores that refusal of release would result in the continued incarceration of a person who is likely factually innocent of any crime of culpable homicide. At the same time, the person who likely caused Brian Fudge’s death, George Kenny, not only escaped conviction of manslaughter, but is out of custody pending the determination of his appeal to this court.

The Position of the Respondent

[31] For the respondent, Mr. Rupic opposes release principally on the basis that the applicant has failed to establish that the appeal is not frivolous. Secondarily Mr. Rupic submits that the applicant’s detention, as a convicted murderer, is necessary in the public interest.

[32] Mr. Rupic says that the applicant acknowledges that this application depends principally on the strength of the case for the admission of Dr. Ramsay’s opinion as fresh evidence on the hearing of the appeal. And it is on this basis, Mr. Rupic contends, that the applicant’s case for release founders. The applicant simply cannot make out a case for the likely reception of Dr. Ramsay’s opinion about cause of death as fresh evidence.

[33] According to Mr. Rupic, the proposed evidence is not fresh: the substance of this alternative explanation for the cause of Brian Fudge’s death appeared in Dr. Pollanen’s report, was put to the Crown’s experts at trial, and was rejected by them. For tactical reasons, trial counsel, not alleged to have provided ineffective assistance to the appellant, chose not to call Dr. Pollanen to proffer his opinion about this alternative cause of death to the jury. Further, the proposed evidence fails to meet the enhanced standard of cogency required when evidence available at trial was not adduced for tactical reasons.

[34] Mr. Rupic says that the proposed evidence lacks cogency for several reasons. The theory is speculative and conjectural. Dr. Ramsay does not say that Brian Fudge died from Kenny’s punch alone, or that the applicant’s assault on Fudge could not have been a significant contributing cause of Brian Fudge’s death.

[35] Mr. Rupic further argues that the applicant’s continued detention is necessary in the public interest. The applicant was convicted of murder. Those convicted of murder are rarely released pending appeal irrespective of their pre-trial release status. The likelihood of appellate reversal, according to Mr. Rupic, is minimal, and thus the applicant’s continued incarceration is unlikely to amount to a miscarriage of justice.

The Governing Principles

[36] The principles that inform my decision in this case are those that explain the requirements of section 679(3) of the Criminal Code, describe the standard of causation in prosecutions for unlawful homicide, and articulate the test for reception of fresh evidence on appeal.

The Statutory Requirements

[37] Under section 679(3) of the Criminal Code, an applicant who seeks release pending the determination of an appeal from conviction must establish to the satisfaction of the chambers judge:

i. that the appeal is not frivolous;

ii. that the applicant will surrender into custody in accordance with the terms of the release order; and

iii. that the applicant’s detention is not necessary in the public interest.

In this case, the respondent opposes release on grounds i and iii.

[38] An appeal is not frivolous if the proposed grounds of appeal raise arguable issues. An applicant need not establish a likelihood, much less a certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention if established.

[39] Where the principal ground of appeal involves or depends upon the introduction of fresh evidence, it would seem reasonable to require an applicant demonstrate an arguable case for the introduction of the fresh evidence. No principled reason could support a less rigorous standard in fresh evidence cases.

[40] The public interest criterion in section 679(3)(c) requires a judicial assessment of the need to review the conviction leading to imprisonment, on the one hand, and the need to respect the general rule of immediate enforceability of judgments, on the other: R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), at pp. 47-48.

[41] Public confidence in the administration of justice requires that judgments be enforced. The public interest may thus require that a person convicted of a very serious offence, like second degree murder, who advances grounds of appeal that are arguable but weak, be denied release pending appeal: Farinacci, at p. 48.

[42] But public confidence in the administration of justice also requires that judgments be reviewed, and that errors, if any, be corrected, especially where an appellant’s liberty is at state: Farinacci, at p. 48.

[43] The public interest ground assumes a place of greater prominence in cases in which an applicant has been convicted of a very serious offence and faces the prospect of a lengthy period of incarceration: R. v. Baltovich (2000), 2000 CanLII 5680 (ON CA), 144 C.C.C. (3d) 233 (Ont. C.A. – Ch’rs), at para. 19; R. v. Demyen (1975), 1975 CanLII 1338 (SK CA), 26 C.C.C. (2d) 324 (Sask. C.A.), at p. 326. As a result, release of an applicant pending appeal of a murder conviction is rare: Baltovich, at para. 20. But where the grounds of appeal are strong and a serious concern about the accuracy of the verdict emerges from the materials filed, the public interest may favour release: Baltovich, at para. 20; R. v. Parsons (1994), 1994 CanLII 9754 (NL CA), 30 C.R. (4th) 169 (Nfld. C.A.), at pp. 186-187.

The Causation Requirement in Unlawful Homicide

[44] The causation requirement in cases of unlawful homicide emerges from the combined operation of sections 222(1) and 222(5) of the Criminal Code. A person commits homicide when that person, directly or indirectly, by any means, causes the death of a human being: Criminal Code, s. 222(1). A person commits culpable homicide, an unlawful killing, when that person causes the death of another by means of an unlawful act: Criminal Code, s. 222(5)(a).

[45] It is well settled that to satisfy the causation requirement in cases of unlawful homicide, the Crown must prove that the conduct of an accused was a significant contributing cause of the death of the deceased: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 71. An intervening act by another person, as for example the assault by Kenny, does not always sever the causal connection between an accused’s act and the result, the death of the deceased: R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R 30, at para. 52. Provided the dangerous and unlawful acts of an accused remain a significant contributing cause of the death of the deceased, the intervening acts of another are of no moment to an accused’s liability: Maybin, at para. 60.

The Admissibility of Fresh Evidence on Appeal

[46] Appellate courts have a broad discretion to receive further evidence on appeal after undertaking a context-sensitive inquiry into all the relevant circumstances: Reference re: Truscott (2007), 2006 CanLII 34698 (ON CA), 83 O.R. (3d) 272 (C.A.), at para. 81; R. v. Maciel (2007), 2007 ONCA 196, 219 C.C.C. (3d) 516 (Ont. C.A.), at para. 43. The overarching principle is the “interests of justice”: Truscott, at para. 81; Maciel, at para. 43.

[47] The criteria applied to determine whether the “interests of justice” warrant reception of further evidence on appeal are a well-rehearsed quartet:

i. the evidence should not generally be admitted if, by due diligence, it could have been adduced at trial;

ii. the evidence must be relevant and bear upon a decisive or potentially decisive issue in the trial;

iii. the evidence must be reasonably capable of belief; and

iv. the evidence must be such that, if believed, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result.

Palmer v. the Queen, [1981] S.C.R. 759, at p. 775

[48] Fresh evidence tendered for reception on appeal challenges the reliability of the verdict rendered at trial by producing evidence that could remove or render unreliable a factual underpinning essential to the verdict: Truscott, at para. 82. In other words, a party seeks to re-litigate, with the help of the new evidence, a factual issue litigated, and on the evidence adduced there, decided at trial: Truscott, at para. 82.

[49] An appellant who tenders fresh evidence on appeal and has it admitted must convince the appellate court in the end that the fresh evidence sufficiently undermines the reliability of the verdict so as to warrant the conclusion that maintaining the verdict would amount to a miscarriage of justice: Truscott, at para. 87.

[50] The Palmer criteria listed above involve three components:

• admissibility

• cogency

• explanation or due diligence

The explanation or due diligence component only becomes important if the first two components, which are preconditions to the admissibility of evidence on appeal, have been met: Truscott, at para. 93.

[51] The first component, admissibility, is self-evident. To undermine the reliability of the trial verdict, at least where the challenge is to a finding of fact on an essential element of the offence charged, the fresh evidence must itself be admissible according to the governing adjective law: Truscott, at para. 95.

[52] To satisfy the cogency component, the fresh evidence must be relevant to a decisive or potentially decisive issue; credible, in the sense of being reasonably capable of belief; and sufficiently probative that, when it is taken along with the rest of the evidence adduced at trial, it could reasonably be expected to affect the result reached at trial: Truscott, at para. 99. An additional degree of cogency is required where the evidence was available or could have been obtained at trial, but was not adduced because of a tactical decision by trial counsel: Maciel, at para. 50.

[53] The due diligence component is not an admissibility factor, rather is a consideration of importance in assessing the overarching principle that governs the reception of further evidence on appeal – the interests of justice. It is too often thought that the interests of justice are co-extensive with those of the accused. Not so here. And not so elsewhere. The interests of justice include the preservation and promotion of the integrity of the criminal justice process. The finality of trial verdicts would be illusory and the integrity of the trial process corrupted by the indiscriminate admission of evidence on appeal that could (and should) have been adduced at trial: Truscott, at para. 101.

[54] Absence of an adequate explanation for failure to tender evidence at trial does not mandate automatic rejection of that evidence, however, when it is proffered on appeal. Extremely cogent evidence may be admitted on appeal notwithstanding the absence of an adequate explanation for failing to adduce it at trial. But we must consider the reason the evidence was not tendered at trial and be chary of attempts to reverse on appeal considered, tactical decisions by experienced counsel immersed in the cauldron of a criminal trial: Truscott, at para. 102.

The Principles Applied

[55] The principal controversy in this case is whether the applicant has established that the appeal is not frivolous according to the requirements of section 679(3)(a) of the Criminal Code. After anxious consideration, I am satisfied that the applicant has done so. That said, I regard this as an extremely close case for reasons that I will develop.

[56] The principal basis the applicant advances in support of his submission that the appeal is not frivolous relates to the issue of causation, an essential element in the prosecution’s proof of any crime of culpable homicide. To reach this issue, the applicant seeks to introduce and, if permitted, would rely upon expert opinion evidence that posits a cause of death that was not of the applicant’s doing.

[57] For the applicant to advance an argument that contests the jury’s finding that his conduct was a significant contributing cause of the deceased’s death, he must be able to persuade a panel of this court to receive the proposed fresh evidence. For without it, the alternative cause of death advanced by the applicant is bankrupt of evidentiary support at trial. It follows, in my respectful view, that for the purpose of satisfying the requirement of section 679(3)(a) of the Criminal Code, the applicant must demonstrate that the motion to admit fresh evidence amounts to an arguable ground of appeal. This requires an examination of whether what is proposed for admission can satisfy the conditions precedent for the reception of fresh evidence on appeal.

[58] First, the admissibility requirement. The evidence proposed for admission consists of the opinion of a neuropathologist about the cause of the deceased’s death. The author of the opinion is a duly qualified expert. The subject-matter of his opinion falls fairly within the scope of his expertise and involves a subject upon which the trier of fact requires expert assistance. Evidence about the cause of the deceased’s death is relevant and material in a prosecution for a crime of unlawful homicide and is not subject to any exclusionary rule.

[59] Second, the cogency requirement. The evidence proposed for admission, the opinion of Dr. Ramsay about what caused the deceased’s death, is relevant to a decisive or potentially decisive issue. After all, an accused can only be held liable as a principal in a crime of unlawful homicide if his or her conduct is a significant contributing cause of the deceased’s death. On its face, the evidence appears reasonably capable of belief, thus credible for the purposes of the Palmer requirements. That the opinion did not find favour with the experts who testified for the Crown at trial does not mean either that Dr. Ramsay’s opinion is not reasonably capable of belief, or that it is not sufficiently probative that, when taken with the rest of the evidence adduced at trial, it could not reasonably be expected to affect the result. Competing expert opinions on an issue are scarcely remarkable. They are routine fare for juries.

[60] The final component of the Palmer criteria for the admission of fresh evidence on appeal, the due diligence requirement, is not a precondition to the admissibility of evidence on appeal: Truscott, at para. 93. Nonetheless, it becomes important where the proposed evidence satisfies the admissibility and cogency requirements. The explanation offered for the failure to adduce the evidence at trial, or the absence of an explanation, can result in the exclusion of evidence that would otherwise be admissible on appeal: Truscott, at para. 93.

[61] Causation was an issue at trial. Prior counsel for the appellant had consulted Dr. Ramsay on the cause of death issue before he (prior counsel) was removed from the record. Disclosure provided by the Crown prior to the trial included Dr. Pollanen’s review of the post-mortem findings and his reference to “concussion alcohol hypothesis” as a potential cause and mechanism of death. This identified what Dr. Ramsay now advances as the more probable cause of death. Dr. Pollanen’s conclusion was that there was some evidence to conclude that acute ethanol intoxication could have been a significant contributing factor in death, acting in concert with concussion. Dr. Pollanen was available as a witness and present at the trial when trial counsel was required to decide whether to adduce defence evidence. Counsel chose not to do so.

[62] It is at once unnecessary and unwise to attempt to gauge the influence the failure to adduce similar evidence available at the time of trial may have on a panel of this court assigned the task of determining the admissibility of this evidence. Suffice it to say that the failure to offer an adequate explanation for not adducing evidence about the mechanism of death at trial will not necessarily lead to exclusion of the evidence of appeal: Truscott, at para. 102. Much will turn on whether the decision not to adduce the evidence was a considered, tactical decision by competent trial counsel.

[63] In the end, I cannot say that the challenges the applicant will face on the due diligence issue render the application to adduce fresh evidence no longer an arguable ground of appeal.

[64] Nor am I persuaded that the applicant’s detention is necessary in the public interest.

[65] The applicant was released pending trial on a recognizance with sureties and subject to conditions that were relaxed over time. He remained on judicial interim release for nearly seven years. The applicant does not appear to constitute a danger to the public or to be a person likely to interfere with the administration of justice. The assembly of the fresh evidence materials seems likely to require a lengthy time to complete. The former co-accused whose appeal will be heard at the same time, has already been released from custody.

CONCLUSION

[66] For these reasons, the application for release pending the determination of the applicant’s appeal to this court is allowed and the applicant ordered released on a recognizance in the terms contained in Appendix ‘A’ to these reasons.

Released: October 29, 2013

“David Watt J.A.”

Appendix ‘A’

C55794

COURT OF APPEAL FOR ONTARIO

THE HONOURABLE JUSTICE ) the )

) DAY OF )

) , 2013

IN CHAMBERS

IN THE MATTER OF CHARLIE MANASSERI, convicted and sentenced at the City of Ottawa on the 29th day of February 2012, by the Honourable Justice Parfett, sitting with a jury, for the offence of second degree murder;

UPON THE APPLICATION of the above named Appellant, and upon reading the Application Record;

IT IS ORDERED that the said Appellant shall forthwith be brought before a Justice of the Peace, and upon entering into a recognizance in the amount of $125,000, without deposit, with the following sureties: Tony MANASSERI and Pamela MANASSERI, be admitted to bail upon the following conditions:

1. SURRENDER into custody at the institution from which released by 6:00 p.m. on the day before the hearing of the appeal or on the 30th day of April, 2014, whichever is the earlier;

2. ACKNOWLEDGE that failure to surrender into custody in accordance with the terms of this order will be deemed to constitute an ABANDONMENT of the appeal;

3. PURSUE the appeal with due diligence;

4. KEEP THE PEACE and be of good behaviour;

5. ADVISE the Registrar of this court of any change of address IN WRITING within 24 hours of the change;

6. REMAIN in the Province of Ontario;

7. REPORT forthwith upon release to the officer‑in‑charge of the Ottawa Police Service, and thereafter the first Monday of every month;

8. DEPOSIT his or her passport with the officer-in-charge and not reapply for a new passport if the current passport expires;

9. RESIDE at 16 Trillium Avenue, Ottawa, Ontario and advise the reporting officer of any change of address in writing within 24 hours of the change;

10. SEEK and maintain gainful employment or continue to attend school;

11. NOT attend Le Skratch bar and not attend any licensed premises between 12:00 p.m. and 6:00 a.m.;

12. 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;

13. ABSTAIN absolutely from the consumption of alcohol and from the non‑medical use of drugs;

14. 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;

15. DELIVER to Crown Law Office - Criminal forthwith a copy of the recognizance of bail pending appeal; and

16. NOTIFY Crown Law Office - Criminal forthwith, in writing, if charged with any criminal or provincial offence while on bail pending appeal.

TO THE JUSTICE OF THE PEACE in and for the Province of Ontario pursuant to section 679(5)(b) of the Criminal Code of Canada.

Signed and entered in the records of this Court this is day of , 2013.

Registrar

COURT OF APPEAL FOR ONTARIO

[^1]: Kenny was also charged with a count of assault causing bodily harm for assaulting another patron before he punched Fudge.

[^2]: Kenny was also convicted of assault causing bodily harm in connection with his assault on the second patron.