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 Year’s Day, 2005. Fudge never regained consciousness. He died on January 2, 2005.

[4] Manasseri and Kenny were jointly tried for their involvement in Brian Fudge’s 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 Fudge’s 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 Fudge’s 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 Manasseri’s 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 I’m 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 Attorney’s 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 Manasseri’s 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. Manasseri’s 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 Manasseri’s 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 Manasseri’s assault on Fudge was not a significant contributing cause of Fudge’s 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 Manasseri’s 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, Manasseri’s 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 appellant’s release from custody on a fresh recognizance.

See, R. v. Dallaire (2001), 2001 CanLII 24106 (ON CA), 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 Fudge’s death and, as a result, laid responsibility for that death right at Charlie Manasseri’s 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 Fudge’s 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.