COURT FILE NO.: CR-20-40000030-00AP DATE: 20211124

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

SERGEI MANUKIAN Appellant

COUNSEL: Greg Lafontaine, for the Appellant Helen Song, for the Respondent

HEARD: June 3, 2021

BEFORE: Justice J. Copeland

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

[1] Sergei Manukian appeals from conviction and sentence on one count of assault causing bodily harm. Mr. Manukian was also tried on one count each of dangerous operation of a motor vehicle and assault with a weapon (the motor vehicle), arising out of the same incident. However, the trial judge acquitted him of those counts on the basis that he was left with a reasonable doubt about whether Mr. Manukian was acting in self-defence during the earlier portions of the incident.

[2] A brief overview will suffice as context for the issues raised. On the afternoon of October 31, 2018, Mr. Manukian and Jonathan Salazar Blanco were sitting in a black Jeep parked at Mr. Manukian’s workplace, having a cigarette. Mr. Manukian was in the driver’s seat. Another vehicle (“the Infiniti”), occupied by two men, pulled into the parking lot, and stopped directly in front of the Jeep. One of the men was Stephen Browne. The other man was never identified. Multiple shots were fired from two different handguns by the men in the Infiniti into the Jeep, where Mr. Manukian and Mr. Blanco were seated. This was at approximately 3:17 p.m.

[3] Mr. Manukian bent down as low as possible behind the steering wheel. Multiple shots entered the hood and through the windshield into the interior of the Jeep. The trial judge found that Mr. Blanco, who was in the Jeep with Mr. Manukian, returned fire (although he found that he was not satisfied that Mr. Manukian had previous knowledge that Mr. Blanco was armed).

[4] After the men in the Infiniti finished shooting, they attempted to flee in their vehicle. However, Mr. Browne, who was driving, failed to negotiate a turn, and rammed into a dumpster. Mr. Manukian drove the Jeep quickly in pursuit of the Infiniti. As the Infiniti was reversing away from the dumpster and attempting to exit, the Jeep driven by Mr. Manukian drove into the Infiniti, ramming it into the dumpster for a second time. The impact caused the Infiniti to spin around 180 degrees counter-clockwise. This was at approximately 3:18 p.m. Mr. Browne and the other assailant exited the car and took of running in different directions, with the other assailant discarding his handgun as he ran.

[5] Mr. Manukian chased after Mr. Browne on foot. Ultimately, he caught up to him across the street, and there was a physical altercation between the two men. The physical altercation began at approximately 3:22 p.m. They ran behind a building, and for a time were out of view of the security cameras. They then came around the other side of the building and into view of cameras. The struggle continued – mutually for a time. Ultimately, Mr. Manukian prevailed, and Mr. Browne was subdued on the ground (from approximately 3:24 p.m.). When Mr. Browne was on the ground, Mr. Manukian continued to intermittently punch and then kick him. This was approximately seven minutes after the shooting. During this time, Mr. Manukian called 911 for the police to attend. Mr. Manukian remained on the scene.

[6] Police attended at approximately 3:30 p.m., 13 minutes after the shooting. Mr. Browne was taken into custody and to hospital. Mr. Manukian was also taken to hospital for the injuries to his hand. The officer who dealt with Mr. Manukian at the scene described him as appearing visibly shaken, and observed injuries to his hand. Another officer who dealt with Mr. Browne found a loaded magazine in the front pocket of his pants, and a black balaclava.

[7] Forensic examination of the scene of the shooting found multiple discharged cartridge cases and bullet fragments belong to two different firearms. A black .40 calibre handgun was found in the rear seat of the Infiniti (the same calibre as the magazine found in Mr. Browne’s pants). The unknown male who fled from the Infiniti discarded a 9mm handgun.

[8] Mr. Browne did not testify at the trial. The Crown’s case was adduced through an agreed statement of facts. Most, but not all, of the events of the shooting, the car chase in the parking lot, the collision, and the physical altercation between Mr. Manukian and Mr. Browne were captured on security video from buildings in the area. That video was included as an exhibit to the agreed statement of facts.

[9] Mr. Manukian testified in his defence. His position was that his actions, both the driving and the physical altercation with Mr. Browne, were in self-defence and were lawful force in the course of effecting a lawful arrest. I will not summarize all of Mr. Manukian’s evidence. But one important aspect, which was included in the agreed statement of facts, was that there had been another attempt to kill Mr. Manukian a few weeks earlier, on October 1, 2018, by shooting into his vehicle. No suspects had been identified in that shooting at the time of the trial. In addition, on October 3, 2018, gunmen had attended at one of the locations of Mr. Manukian’s business and fired shots into the business. Again, no suspects had been identified at the time of the trial. Mr. Manukian testified that he was living in fear as a result of the two previous shootings. When the shooting happened on October 31, 2018, he went after Mr. Browne in order to apprehend him, and to end the attempts on his life and the risk that they posed to him and his family.

[10] The trial judge was left with a reasonable doubt about whether Mr. Manukian’s actions up to a point were taken in self-defence. On that basis, he found Mr. Manukian not guilty of dangerous operation of a motor vehicle, and of assault with a weapon (the motor vehicle). However, the trial judge found that from the point where Mr. Browne was on the ground and subdued, and no longer either fighting back or attempting to get up, he was satisfied beyond a reasonable doubt that Mr. Manukian was not acting in self-defence, and that the force used was excessive from that point onward. He found that bodily harm was caused to Mr. Browne, and that it was caused during the portion of the altercation when Mr. Manukian was no longer acting in self-defence. The trial judge sentenced Mr. Manukian to a $2,000 fine.

[11] Mr. Manukian raises many grounds of appeal, some of which overlap. For reasons I will explain, I find most of the grounds of appeal without merit. However, I find that on the record before the trial court, the trial judge’s finding that the bodily harm was caused during the portion of the altercation where Mr. Manukian was no longer acting in self-defence (once Mr. Brown was subdued) is unreasonable. On this basis, I set aside the conviction for assault causing bodily harm, and substitute a finding of guilt for common assault. I find that the appropriate sentence for the substituted finding of guilt of common assault is an absolute discharge.

Grounds where Crown not called on to respond

[12] At the hearing of the appeal, I only called on Crown counsel to respond to three grounds of appeal: (i) the ground in relation to changes in the trial judges written reasons as compared to his earlier oral reasons; (ii) whether the verdict of assault causing bodily harm was unreasonable (as distinct from common assault), and if so, the appropriate sentence for common assault; and (iii) the sentence appeal in relation to the conviction for assault causing bodily harm. Before turning to those grounds of appeal, I will deal briefly with the remaining grounds of appeal where I did not call on Crown counsel to respond.

[13] Counsel for Mr. Manukian argues that the trial judge failed to engage in a W.D. analysis. I reject this submission.

[14] Although the trial judge did not expressly refer to the W.D. decision in his reasons, I find that throughout his reasons, he was clearly alive to the burden of proof on the Crown beyond a reasonable doubt, and that he applied that standard. He was clearly alive to the fact that the reasonable doubt burden applied to negativing self-defence, and to issues related to his assessment of Mr. Manukian’s credibility (see for example, written reasons for judgment at paras. 16, 21-23, 34, 36, 40-41). Indeed, in several portions of his reasons, the trial judge expressed concerns about aspects of Mr. Manukian’s evidence, but despite that, found he was left in a reasonable doubt on whether his actions were in self-defence prior to approximately 3:24 p.m., when Mr. Browne was on the ground and subdued.

[15] The trial judge was left with a reasonable doubt about much of Mr. Manukian’s testimony. However, based on the objective evidence of the video showing that from approximately 3:24 p.m., Mr. Browne was on the ground and subdued, and also showing actions by Mr. Manukian from that point that the trial judge found were inconsistent with a state of mind of defensive motivation, the trial judge was satisfied beyond a reasonable doubt that from the time Mr. Browne was subdued on the ground, Mr. Manukian’s actions were not in self-defence. I find no error by the trial judge in relation to the principles from W.D., or his assessment of Mr. Manukian’s credibility in relation to the reasonable doubt standard.

[16] Counsel for Mr. Manukian submits that the finding of fact by the trial judge that Mr. Blanco fired back at the assailants was unreasonable, and further submits that the trial judge erred by using the finding that Mr. Blanco fired back to undermine Mr. Manukian’s self-defence claim. I reject both of these submissions.

[17] The trial judge explained at paragraph 4 of his written reasons the factual basis in the record for his finding that Mr. Blanco fired back. It was based on certain observations on the video, and on shell casings of a calibre found at the scene that did not fit either of the firearms used by the assailants. I note as well that in the security video in the agreed statement of facts, Mr. Blanco can be seen holding something after the attack on the Jeep that the trial judge found was a firearm. I find nothing unreasonable about that finding by the trial judge. As well, it was an agreed fact that a .45 calibre magazine was found on the front passenger floor of the Jeep (where Mr. Blanco had been sitting). This was the same calibre as the shell casings at the scene that did not fit either of the assailants’ guns. It was open to the trial judge to find that Mr. Blanco fired back.

[18] I also do not accept that the trial judge somehow used the fact of Mr. Blanco returning fire to undermine Mr. Manukian’s self-defence claim. The trial judge was left in a reasonable doubt by Mr. Manukian’s self-defence claim up to the point where Mr. Browne was subdued on the ground (from approximately 3:24 p.m.). At that point, the trial judge’s finding that Mr. Manukian was no longer acting in self-defence had nothing to do with the fact that Mr. Blanco had earlier returned fire. Rather, it was based on his findings that Mr. Browne was subdued and no longer posed a threat, and that Mr. Mr. Manukian was no longer acting with defensive motivation.

There is no error or impropriety in the Trial Judge’s additions to his written reasons for judgment

[19] Counsel for Mr. Manukian submits that the trial judge made additions to his written reasons for judgment that were not in his oral reasons for judgment that rendered the trial unfair. The changes relate to the issue of the timing of when the bodily harm to Mr. Browne occurred.

[20] Crown counsel submits that changes between oral and written reasons for judgment are only a trial fairness issue where a reasonable observer would think that the changes are an after-the-fact justification for the verdict. She submits that in this case, the trial judge had indicated at the time he gave the oral reasons for judgment that he intended to provide written reasons at a later date. He gave oral reasons for judgment in order to allow the case to proceed in a timely way. She further submits that the changes in the written reasons in this case are directly responsive to submissions made by the defence at the sentencing hearing on the issue of the trial judge’s finding of fact about when the bodily harm occurred. Thus, Crown counsel submits there is no unfairness or appearance of unfairness in this case. The changes in the written reasons are responsive to an argument made by the defence at the sentencing hearing (after the oral reasons were given), and are changes of clarification, not substance.

[21] The chronology relevant to this issue is as follows:

• The trial evidence and submissions finished on November 15, 2019. The trial judge reserved judgement, and put the matter over to December 18, 2019, for judgment (for reasons that are not clear from the record on appeal, judgment was not given on December 18, 2019).

• On January 6, 2020, the trial judge gave oral reasons for judgment. At that time, he said he would also release written reasons, but was having formatting issues. He said if there were significant differences between the written reasons and the oral reasons, the written reasons would be the final judgment. The matter was then put over to February 3, 2020 for the sentencing hearing.

• The sentencing hearing proceeded as scheduled on February 3, 2020. Importantly, at the sentencing hearing, counsel for Mr. Manukian asked the trial judge to reconsider his finding that the bodily harm occurred after Mr. Browne was on the ground and subdued (i.e., when Mr. Manukian was no longer acting in self-defence as found by the trial judge). Counsel for Mr. Manukian argued that the trial judge’s findings about when the bodily harm occurred were “vague”, and he argued that the bodily harm could have happened in the collisions while Mr. Browne was in the Infiniti, or while Mr. Manukian was in the process of subduing Mr. Browne (i.e., during the time that the trial judge had a reasonable doubt about whether Mr. Manukian was acting in self-defence). The trial judge reserved judgment on sentence, and the matter was put over to February 26, 2020 to impose sentence (for reasons that are not clear from the record on appeal, sentence was not imposed on February 26, 2020).

• On March 11, 2020, the trial judge imposed sentence, and provided written reasons for judgment and sentence.

[22] Although there are some minor changes throughout the written reasons for judgment as compared to the oral reasons for judgment, the appellant does not take issue with the minor changes. Rather, the ground of appeal relates to paragraphs 45 to 47 of the written reasons for judgment, which are entirely new and not part of the oral reasons for judgment, and two references in paragraphs 33 and 42, which were added in relation to when the bodily harm occurred.

[23] I reject the defence submission that there was any impropriety in the trial judge adding paragraphs 45 to 47, or the additions to paragraphs 33 and 42, to the written reasons for judgment. During the sentencing hearing, after oral reasons for judgment were given, counsel for Mr. Manukian invited the trial judge to revisit his factual finding about when the bodily harm occurred. I find that paragraphs 45 to 47 of the written reasons for judgment, and the changes to paragraphs 33 and 42, are directly responsive to this request from counsel for Mr. Manukian to revisit that finding. Indeed, in paragraph 45, the trial judge expressly says he is responding to counsel’s request that he revisit that finding.

[24] I address below whether the trial judge’s finding in relation to when the bodily harm occurred was unreasonable on the record before the court. But there was nothing inappropriate in his responding in his written reasons to defence counsel’s post-verdict request that he revisit a factual finding.

The Trial Judge’s finding that bodily harm was caused during the portion of the assault that was not in self-defence is unreasonable

[25] The appellant submits that the trial judge’s finding that bodily harm to Mr. Browne occurred when Mr. Manukian was no longer acting in self-defence was unreasonable. Crown counsel submits the finding is reasonable, in light of the nature of the kicks visible on the video after approximately 3:24 p.m.

[26] I find that the trial judge’s finding that the injuries to Mr. Browne (i.e., the bodily harm) happened after the assault ceased to be in self-defence is unreasonable. I explain my reasons for these findings below.

[27] In considering an appeal based on the argument that a verdict is unreasonable, an appellate court must consider whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. It is not the role of an appellate court to simply substitute its view for that of the trier of fact. However, an appellate court considering the reasonableness of a verdict is entitled to review and re-examine the evidence, and to engage in a limited weighing of the evidence to consider whether it is reasonably capable of supporting the verdict: R. v. Yebes, 1987 CanLII 17, [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37. The same test for unreasonable verdict applies whether the trial is by judge and jury, or by judge alone. However, when a trial is by judge alone, the presence of reasons may permit an appellate court to identify a flaw in the trial judge’s analysis that may explain why an unreasonable conclusion was reached. Case law developed under s. 686(1)(a)(i) in relation to unreasonable verdicts is applicable to summary conviction appeals: R. v. Hewitt, 2003 CanLII 48126 at para. 3 (ONCA); s. 822(1) of the Criminal Code.

[28] Some aspects of the trial judge’s reasons about why he found that the bodily harm was caused after Mr. Browne was subdued are somewhat conclusory (see for example, written reasons for judgment, para. 33, last sentence, para. 42); however, I find that paragraphs 39, 40, and 47 read together show that the trial judge based the finding of when the bodily harm occurred on the nature of the kicks administered by Mr. Manukian after Mr. Browne was on the ground and subdued.

[29] In the context of all of the evidence, and the absence of evidence, in the trial record, I find that one cannot rule out the reasonable inference that the bodily harm was caused earlier during either or both of the collision of the Infiniti Mr. Browne was driving (with the dumpster or the Jeep driven by Mr. Manukian), or the portion of the altercation where the Trial Judge had a reasonable doubt about whether Mr. Manukian was acting in self-defence.

[30] I base this conclusion on the following aspects of the evidence, and absences of evidence:

• The agreed statement of facts does not address when the injuries to Mr. Browne were caused. It states (para. 36): “He suffered numerous injuries as a result of the accident and/or struggle. They included the following: (i) a non-displaced nasal bone fracture; (ii) a facial bone fracture; (iii) a small fracture of the right L2 transverse process; (iv) a small epidural hematoma in the cervical region” [emphasis added]. Thus, the agreed statement of facts expressly leaves open the issue of when the injuries happened.[^1] The “and/or” formulation of the agreed statement of facts regarding when the injuries occurred leaves open as a reasonable inference that the injuries could have occurred solely during the accident (i.e., the collision). The fact that the agreed statement of facts leaves open the issue of when the injuries occurred is important because for the time period before Mr. Browne was subdued on the ground, the trial judge was left with a reasonable doubt about whether Mr. Manukian was acting in self-defence. If the evidence as a whole reasonably leaves open the inference that the injuries happened during the part of events when Mr. Manukian was acting in self-defence, then the conviction for assault causing bodily harm is unreasonable.

• It is clear from the security videos that the Infiniti that Mr. Browne was driving sustained two significant impact collisions – first crashing into the dumpster, and then Mr. Manukian’s Jeep crashing into the Infiniti (see video compilation at approximately 3:18:06 to 3:18:25). In particular, it is clear from the video that the force of impact of the Jeep into the Infiniti is very significant. The Jeep essentially T-bones the Infiniti, although on a bit of an angle, on the driver side of the Infiniti. The force of the impact causes the Infiniti to spin counter-clockwise 180 degrees, and causes significant damage to both vehicles. Indeed, the trial judge described the force with which the Jeep hit the Infiniti as “both shocking and significant” (written reasons for judgment at para. 36). As I have noted, Mr. Browne was driving the Infiniti, and so on the same side as the impact by the Jeep.

• A portion of the physical altercation between Mr. Manukian and Mr. Browne happened out of view of any of the security cameras. The time that the two men are out of view is approximately eight seconds (see video compilation at approximately 03:22:27 to 03:22:44). Just prior to going out of view, one can see in the security video that Mr. Manukian is chasing Mr. Browne and has not yet caught up to him. Mr. Browne falls to the ground and rolls, and then the two men begin to engage in a physical altercation, but then move almost immediately out of the camera’s view behind a building. When they re-emerge into the camera’s view from behind the building, they are still tightly locked in a physical altercation.

• Once they come into view of video again, and still in the time period before Mr. Browne was subdued on the ground (thus, according to the finding of the trial judge, where there was a reasonable doubt that Mr. Manukian was acting in self-defence), one can see on the security video the two men standing and struggling with each other. In that time period both of them are bashing against the side of a parked car while they are struggling. Then, as the struggle continues, and again before Mr. Browne is subdued on the ground (and thus Mr. Manukian was still acting in self-defence), they both fall to the ground together during the struggle twice, both times with Mr. Browne landing on the bottom, and one of those times appearing to go down landing on his face. They continue to struggle on the ground, still before Mr. Browne is subdued (see video compilation at approximately 03:22:44 to 3:24:30).

• Once Mr. Browne is on the ground and subdued (i.e., in the time period where the trial judge found that Mr. Manukian was no longer acting in self-defence), although Mr. Manukian continues intermittently to deliver punches, and then kicks to Mr. Browne, for most of that time one cannot see Mr. Browne’s head, because it is obscured by some bushes (see video compilation at approximately 3:25:20 to 3:28:45). Thus, one cannot see exactly where the kicks land (although two kicks near the end are clearer).

• Because Mr. Browne did not testify at trial, there is no evidence from him about when the injuries did not or did not occur. Just by way of example, there is no evidence that he was not injured in the collision of the Infiniti into the dumpster or the collision of the Jeep into the Infiniti. Nor is there any evidence from him that he did not sustain the injuries in the physical altercation before the time he was subdued on the ground.

[31] As a result of these aspects of the trial evidentiary record, I find that a reasonable jury, properly instructed, could not reasonably find beyond a reasonable doubt that the kicks once Mr. Browne was subdued were the cause of the bodily harm. In the trial evidence there is significant other evidence of physical impacts on Mr. Browne’s body during the time where the trial judge was left with a reasonable doubt that Mr. Manukian was acting in self-defence which could have been the cause of the bodily harm he suffered. In particular, I reference the two collisions of the Infiniti when he was driving (with the dumpster and with the Jeep), and the portions of the physical struggle before Mr. Browne was subdued where the men were bashing into a parked car, and where Mr. Browne at least twice fell to the ground, once landing on his face.

[32] In addition, there is a gap in the evidence of approximately eight seconds where the men are behind the building, out of view of security cameras, and both before and after that gap physical struggle is going on. It is reasonable to infer that there was physical struggle in the time they were out of view. Injuries could reasonably have happened in that time period, which was also in the time when the trial judge has a reasonable doubt that Mr. Manukian was acting in self-defence.

[33] While a finding that the bodily harm happened when Mr. Browne was subdued on the ground is a reasonable inference, it is not the only reasonable inference on the record before the trial court. Another reasonable inference is that the injuries could have been sustained earlier, during the portion of the car crash and physical altercation where the trial judge had a reasonable doubt about whether Mr. Manukian was acting in self-defence. In other words, on the trial record, one cannot rule out the reasonable inference that the bodily harm was caused either in the collision with the dumpster or the Jeep, or during the portion of the physical altercation where Mr. Manukian was still acting in self-defence, either in the portion where the altercation is outside of the camera’s view, or when Mr. Brown and Mr. Manukian are fighting and bashing against the parked car, or the portion just after that, still in self-defence according to the trial judge’s finding, where during the altercation Mr. Browne falls to the grounds at least twice, once going down on his face.

[34] Because inference that the bodily harm was sustained during the time that Mr. Manukian was acting in self defence cannot be reasonably ruled out, Mr. Manukian should only have been found guilty of assault simpliciter.

[35] Counsel for Mr. Manukian made the submission that if the court found that the finding that the bodily harm was caused during the non-self-defence portion of the physical altercation was unreasonable, this would also undermine the implicit finding of the trial judge that the included offence of common assault was proven. As I understood counsel’s submission, it was argued that if the bodily harm finding was undermined, this could undermine the trial judge’s finding that the force used was excessive.

[36] I disagree. The trial judge’s reasons are clear that his holding was that once Mr. Browne was on the ground and subdued, and not seeking to get away or fight back, no further force by Mr. Manukian was justified. He also found that that once Mr. Browne was on the ground and subdued, Mr. Manukian was no longer subjectively acting with a defensive motivation (written reasons for judgment at paras. 37-41). These conclusions are not undermined by my finding that the conclusion about when the bodily harm was sustained is unreasonable.

[37] I coming to the conclusion that the trial judge’s finding that bodily harm was caused during the portion of the assault that was not in self-defence is unreasonable, I note that this was an issue on which trial counsel could have provided more assistance to the trial judge. At trial, both Crown counsel and defence counsel made their submissions on the footing that either all of Mr. Manukian’s actions were in self-defence or none of them were. Thus, counsel’s closing submissions did not address the possibility that the assault began in self-defence, but at some point, ceased to be self-defence (once Mr. Brown was subdued).[^2]

[38] As a result of these positions by trial counsel, counsel did not address in closing submissions the scenario in the ultimate finding by the trial judge (which I accept was reasonable and was open to him), that the initial car chase and crash in the parking lot, and the initial physical interaction between Mr. Manukian and Mr. Brown was justified in self-defence, but that the assault ceased to be in self-defence once Mr. Browne was on the ground and subdued. Indeed, the defence closing submissions in relation to bodily harm focussed on issues that had little merit in the circumstances of this case, including that the nature of the injuries (in terms of the level of seriousness) did not rise to the level of bodily harm, and that expert evidence was required to prove that the injuries rose to the level of bodily harm (both of which the trial judge considered and rejected: see written reasons for judgment at para. 42).

[39] I want to briefly address the disposition of the appeal. Although I find that the trial judge’s finding that the bodily harm was caused during the non-self-defence portion of the altercation is unreasonable (in the sense described in case law under s. 686(1)(a)(i)), because I find that Mr. Manukian is properly found guilty of the included offence of common assault, the result is not the usual “appeal allowed”.

[40] Section 822(1) incorporates by reference most of ss. 683-689 of the Criminal Code for summary conviction appeals. Of relevance here are ss. 686(1)(b)(i) and 686(3). The combined effect of these provisions is that where the court is of the opinion that Mr. Manukian was not properly convicted or assault causing bodily harm, but was properly convicted of another count or of an included offence, the summary conviction appeal court should dismiss the appeal, set aside the conviction for assault causing bodily harm, and substitute a verdict for the offence that the court is of the opinion he was properly convicted of (here, common assault). This is the order I make.

The Appropriate sentence

[41] Mr. Manukian appealed his sentence on the conviction for assault causing bodily harm. Because I have found that the verdict of assault causing bodily harm is unreasonable, and set aside the assault causing bodily harm conviction, the sentence appeal as argued in the written submissions is moot. However, because I have substituted a finding of guilt for the offence of common assault, Mr. Manukian must be sentenced on that offence.

[42] Crown counsel took the position that a new sentencing hearing should be held in the Ontario Court of Justice on the common assault finding of guilt.

[43] I reject that submission. I find that ordering a new sentencing hearing in the Ontario Court of Justice is neither necessary, nor desirable. It is preferable that this court consider and impose an appropriate sentence.

[44] On the issue of necessity, I find that the record which was the basis for the sentencing hearing before the trial judge is sufficient for me to consider the appropriate sentence for common assault. As is often the case, there was no separate evidence led at Mr. Manukian’s sentencing hearing in the trial court. The sentencing hearing was based entirely on submissions. The trial court is not in a better position than the summary conviction appeal court to consider sentence on the substituted verdict of guilt on common assault. Thus, a new sentencing hearing in the Ontario Court of Justice is not necessary.

[45] On the issue of desirability, I find that the policy of the Criminal Code in relation to sentence appeals, although not strictly applicable to a sentencing where a conviction for an included offence is substituted, speaks by analogy to a preference for the sentence on the substituted verdict be imposed by the summary conviction appeal court if the record is adequate to do so, rather than ordering a new sentencing hearing in the trial court.

[46] Where a summary conviction appeal court hears a sentence appeal, s. 822(6) provides that the summary conviction appeal court may either dismiss the sentence appeal, or vary the sentence. There is no option to send the matter back for a new sentencing hearing in the trial court. The clear policy behind this provision is to avoid the use of resources required to hold a new sentencing hearing in the trial court, a concern which is based both on efficient use of limited court resources, and access to justice concerns. I note that the same policy is found in s. 687(1) with respect to sentence appeals in indictable matters.

[47] As I have noted, s. 822(6) is not strictly applicable in the circumstances where a finding of guilt for an included offence is substituted on appeal. Rather, s. 822(1) incorporates by reference the powers in s. 686(3). Thus, where a summary conviction appeal court substitutes a verdict, it has the authority to affirm the sentence passed by the trial court, impose an appropriate sentence itself, or remit the matter to the trial court to impose an appropriate sentence: R. v. Toole, 2017 ONCA 305 at para. 14.

[48] The incorporation by reference of s. 686(3) into summary conviction appeal procedure means that as a summary conviction appeal court that has set aside a conviction and substituted a finding of guilt for an included offence, one option open to me is to remit the matter to the trial court for a sentencing hearing. However, I find that this option is not desirable from an administration of justice perspective, if the record from the trial court sentencing hearing is sufficient for me to consider the appropriate sentence. If the record from the trial court sentencing hearing is sufficient for the summary conviction appeal court to consider the appropriate sentence on the finding of guilt on the substituted verdict, in my view it is desirable that the summary conviction appeal court impose sentence, rather than order an additional hearing. This avoids the use of limited judicial resources to hold yet another hearing, and the cost that this entails to the justice system, and to individual defendants. This concern is heightened at present. Both the Ontario Court of Justice and the Superior Court are currently severely overburdened as a result of delays due to the pandemic. Requiring a further sentencing hearing in the Ontario Court of Justice is not in the interests of justice when the record is adequate for me to consider the appropriate sentence.

[49] As I have already noted, I find that the record from the sentencing hearing in the Ontario Court of Justice and the submissions on sentence that I heard during the argument of the appeal are sufficient for me to consider the appropriate sentence for the substituted verdict of common assault. Thus, I find it is appropriate for the summary conviction appeal court to impose sentence on the substituted finding of guilt for common assault.

[50] I heard submissions from the parties during the oral argument of the appeal on the issue of what sentence should be imposed in the event I found that the assault causing bodily harm conviction was unreasonable and substituted a finding of guilt on the included offence of assault. Crown counsel took the position that the sentence imposed by the trial judge of a $2,000 fine was still an appropriate sentence even if the conviction was for common assault. Counsel for Mr. Manukian submitted that discharge would be an appropriate sentence.

[51] In all of the circumstances, I find that an absolute discharge is an appropriate sentence. I find that an absolute discharge is in Mr. Manukian’s interest, and is not contrary to the public interest.

[52] At the time of the sentencing hearing, Mr. Manukian was 30 years old. He had no criminal record. He was a permanent resident of Canada, and had lived here since 1999. He had applied for Canadian citizenship, but that had effectively been put on hold due to the trial. He was married and had a young son. Mr. Manukian and his wife ran a business called Toronto Medical Centre, which offered a variety of rehabilitation treatments by various regulated health professions, including doctors, psychologists, physiotherapists, etc. They had been running this business since 2010. This business provided employment for a significant number of people.

[53] Based on this background about Mr. Manukian, I find that he has positive antecedents, and good prospects for rehabilitation. I am satisfied (as was the trial judge) that a discharge is in Mr. Manukian’s interest. It is in his interest that he not be unnecessarily saddled with a criminal record, and the impacts that a record often entails in terms of employment and cross-border travel.

[54] I am also satisfied that a discharge is not contrary to the public interest. I note that Mr. Manukian spent eight days in pre-trial custody before he was granted release. The finding of guilt I am sentencing Mr. Manukian on is for common assault. A discharge is certainly within the range of an appropriate sentence for common assault (depending on all of the circumstances). Although Mr. Browne suffered bodily harm at some stage during the altercation with Mr. Manukian, it has not been proven that those injuries happened during the portion of the altercation when Mr. Manukian’s actions ceased to be in self-defence. Thus, the injuries play no role in determining the appropriate sentence.

[55] Crown counsel argues that the number of blows struck by Mr. Manukian during the portion of the assault which the trial judge found was excessive force (when Mr. Browne was down and subdued) should lead the court to find that a discharge is contrary to the public interest. Crown counsel also submits that the court should be concerned that imposing a discharge would encourage vigilantism.

[56] In the unusual circumstances of this case, I do not accept those submissions. I find that the number of blows (once the assault ceased to be in self-defence) does not render a discharge contrary to the public interest. This was not a planned attack by Mr. Manukian. Mr. Manukian had just been the victim of an attempt on his life by Mr. Browne and an accomplice, which involved shooting from a close range into the vehicle that Mr. Manukian was in. Mr. Manukian reacted by what the trial judge was left with a reasonable doubt was, up to a point, lawful self-defence. The finding of guilt of common assault here arises because Mr. Manukian did not stop his use of defensive force at a point that was reasonable. The trial judge found that the force became excessive once Mr. Manukian was subdued on the ground and no longer trying to get up. Although the force used was at that point excessive, it was temporally and contextually connected to what had been up to that point lawful self-defence. In the unusual and harrowing circumstances of Mr. Manukian just having been the victim of a shooting attempt on his life, I find that the imposing a discharge is not contrary to the public interest.

[57] Had I been in the position of imposing sentence in this matter at the time the original sentence was imposed, assuming the sentence was being imposed for the now-substituted finding of common assault, I might well have considered whether a conditional discharge was appropriate. But given the passage of time since the offence, now more than three years, and the absence of evidence of any issues with Mr. Manukian’s conduct since that time, I am satisfied that an absolute discharge is appropriate.

Conclusion

[58] For these reasons, I find that the trial judge’s finding that bodily harm was caused during the portion of the assault that was not in self-defence is unreasonable. Pursuant to ss. 822(1), 686(1)(b)(i), and 686(3), I dismiss the appeal from conviction. I set aside the conviction for assault causing bodily harm. I substitute a finding of guilt for common assault, pursuant to s. 266 of the Criminal Code.

[59] On the finding of guilt for common assault, I impose an absolute discharge pursuant to s. 730 of the Criminal Code.

[60] I thank both counsel for their helpful and focussed submissions.

[^1]: Another possible reading of the agreed statement of facts, as a matter of its grammatical meaning, is that it was not possible to determine when the injuries occurred. That would make the appellant’s argument about the unreasonableness of the bodily harm verdict even stronger, because on that reading of the agreed statement of facts, it would be conclusive that when the injuries occurred could not be determined. However, the unreasonable verdict argument was not advanced on that basis.

[^2]: Defence counsel only later raised the issue during his sentencing submissions when he asked the trial judge to revisit the bodily harm finding.

COURT FILE NO.: CR-20-40000030-00AP DATE: 20211124

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

SERGEI MANUKIAN Appellant

REASONS FOR JUDGMENTON SUMMARY CONVICTION APPEAL

Justice J. Copeland

Released: November 24, 2021