Court of Appeal for Ontario

Date: 2017-03-21

Docket: M47464 (C55794)

Watt J.A. (In Chambers)

Between

Her Majesty the Queen Respondent

and

Charlie Manasseri Applicant

Counsel:

• 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:

• DAI was not the mechanism or cause of Brian Fudge's death;
• alcohol concussion syndrome (ACS) was the mechanism or cause of death according to three of the four experts; and
• 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:

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

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

• the geographic location of the person, the proposed sureties, counsel and where necessary, witnesses.
• the nature of the hearing, including the reasonable necessity of the introduction of viva voce testimony;
• the issues in controversy;
• the anticipated length of the hearing;
• the need for familiarity with the appellate record and the reasons provided for ordering a new trial;
• the relationship, if any, between the issue of release and the hearing and scheduling of the new trial;
• the review mechanism available to any party aggrieved by the decision;
• the nature of the record required for the hearing; and
• 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 doesn't 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 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

David Watt J.A.

Appendix 'A' – Conditions of Release

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.