The Defence Toolkit – December 18, 2021

This week’s top three summaries: R c Rizzuto, 2021 QCCA 1789: s.8 warrants #excision, Mohabir c R, 2021 QCCA 1806: 606(1.1) might be #jail, and R v Manukian, 2021 ONSC 7765: bodily harm #causation.

R c Rizzuto, 2021 QCCA 1789

[November 30, 2021] Charter s.8 - Warrants - The Concept of Excision Challenged [Allan R. Hilton, Mark Schrager, Patrick Healy JJ.A.]

AUTHOR’S NOTE: An unusual element of Charter jurisprudence, the remedy of excision is unique in that it is not clearly a 24(1) or 24(2) Charter remedy. Also, unlike 24(2), it is automatic. Once evidence is found to have been obtained via a Charter breach (or the entry is erroneous or the evidence was obtained otherwise unlawfully), excision occurs without further balancing or consideration. However, the court then goes on to review the rest of the warrant application to determine if the warrant could have issued. If not, then the court engages in 24(2) analysis (doomed for the most part due to the interests involved). Herein the Crown challenged the concept of excision directly, suggesting a 24(2) analysis was needed amongst other suggestions. The QCCA's response is a clear and unequivocal defence of excision as tool to ensure that police investigations cannot insulate Charter violations by unnaturally siloing parts of an investigation. 

Introduction

[2] Respondent, a lawyer by profession, was, with others, under police investigation for drug trafficking and related criminal activity. The police obtained wiretap authorizations for several locations, including the law offices which Respondent shared with other lawyers. Several conversations intercepted at that office served, in part, as a basis for the warrant to search Respondent’s home. That search uncovered two handguns (one loaded), ammunition and a small amount of cocaine.

[3] Respondent was charged with conspiracy to traffic cocaine and with possession of firearms. The prosecution split the case such that the conspiracy was prosecuted first in the Superior Court followed by the firearms’ charges in the Court of Québec.

[4] Before the Superior Court, Respondent, together with two co-accused, presented a Garofoli2 motion with a view to excluding the wiretap evidence collected from the law office. In a lengthy detailed judgment,3 Downs, J.S.C., decided that even though the interception of the conversations was done in the execution of a valid warrant, the manner in which the police executed the warrant contravened solicitor-client privilege. He, thus, excluded those conversations from evidence pursuant to s. 24(2) of the Charter and, in the absence of other evidence of conspiracy, acquitted Respondent.4 The Crown did not appeal.

[5] Before the Court of Québec, given the Downs judgment, which the prosecution did not question, the judge excised the conversations intercepted at the law office from the information to obtain the search warrant (ITO).

[6] Having excised the conversations, Judge Riendeau concluded that the remaining content of the ITO did not justify the issuance of the search warrant, making the seizure illegal....

FACTS AND PROCEEDINGS

[7] Before the Court of Québec, the parties proceeded on the basis of the facts as found by Justice Downs of the Superior Court, who found that there had been a number of violations of the s. 8 Charter right against unreasonable search and seizure as a result of the way in which the warrant had been executed, including: (i) installing listening devices to intercept conversations in the conference room used by lawyers and their clients not targeted by the investigation; (ii) failing to establish a procedure to minimize violating solicitor-client privilege; (iii) listening to live conversations (instead of recording them for the reviewing judge); and (iv) releasing to investigators conversations ruled privileged by the reviewing judge.

[8] Justice Downs concluded that while the police had not acted in bad faith, these violations were sufficiently serious to justify exclusion under s. 24(2) of the Charter. Without the communications intercepted at the law office, Appellant conceded that it could not prove conspiracy, such that, as stated above, Respondent was acquitted in the Superior Court.

[9] ... The ITO evokes purportedly reasonable grounds for the search based on surveillance, information from a confidential informant (“CI”) and the communications at the law office. The CI had told the police that Respondent was an Italian leader and that, together with a law partner, he used his position as a lawyer to act as a conduit for messages between members of organized crime. The ITO discloses that the police were looking for money, documents related to drug trafficking (including accounting documents) and (encrypted) cell phones – none of which was found during the search of Respondent’s home.

JUDGMENT OF THE COURT OF QUÉBEC

[10] As stated earlier, the judge applied the excision rule enunciated by the Supreme Court of Canada in Grant, Plantand Wiley[5] and concluded that without the infringing conversations, the ITO was insufficient to justify the issuance of the warrant. In so doing, and central to the present appeal, the judge rejected Appellant’s argument to nuance the application of the excision rule in accordance with the circumstances of the case. Equally, she refused to consider the application of s. 24(2) of the Charter to the excised communications.

[11] The information remaining after the communications were excised consisted essentially of a few paragraphs of information from the CI and some observations from police surveillance. The judge found that the CI’s information was insufficiently corroborated. Moreover, the judge concluded that the CI’s credibility was not established. The surveillance merely showed Respondent to be in the presence of certain criminals without otherwise establishing whether they were criminal associates or just friends.

Analysis: Crown Appellant's Argument

[16] Appellant submits that excision leads to incongruous results as it deprives the Court reviewing the issuance of a search warrant pursuant to Garofoli of the ability to contextually assess police conduct as in an analysis under s. 24(2) of the Charter.

[17] Appellant further submits that the excision rule derives from cases in which the information relied on in an ITO was obtained without a warrant. The instant case involves information obtained pursuant to successive, judicially authorized investigations over a long period of time. Specifically, the interception of communications here was authorized, and the illegality in the exercise of the authorized power was only declared by Downs, J.S.C., subsequent to the swearing of the affidavit in the ITO. Thus, not only is the good faith of the affiant of the ITO for the search of Respondent’s home unimpeachable, there is no binding case law which applies to such a situation and which would require excision of the communications. Moreover, World Bank Group v. Wallace[8] confirms that the affiant’s reasonable beliefs are to be determined as at the time he or she swore the ITO....

Analysis

[18] We do not agree with Appellant.

[19] The following is the excision rule as stated by the Supreme Court of Canada in Grant:[9]

The constitutional test for the sufficiency of information underlying a warrant was stated by this Court in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452, as follows:

The reviewing judge does not substitute his or her view for that of the authorizing judge.  If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.

In Kokesch, supra, this Court determined that evidence obtained during a search under warrant had to be excluded under s. 24(2) of the Charter where the warrant was procured through an information which contained facts solely within the knowledge of police as a result of a Charter violation. However, in circumstances such as the case at bar where the information contains other facts in addition to those obtained in contravention of the Charter, it is necessary for reviewing courts to consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant:  Garofoli, supra.  In this way, the state is prevented from benefiting from the illegal acts of police officers, without being forced to sacrifice search warrants which would have been issued in any event.  Accordingly, the warrant and search conducted thereunder in the case at bar will be considered constitutionally sound if the warrant would have issued had the observations gleaned through the unconstitutional perimeter searches been excised from the information.  (…).

[20] The method was applied subsequently by the Supreme Court of Canada in R. v. Evans and R. v. Spencer,[10]and it is the method the Court of Québec judge applied. She excised the information obtained in violation of the Charterbefore analyzing the sufficiency of the ITO taken without that information.

[22] Not only does Appellant’s position not align with the binding case law,[11] but it potentially leads to a type of situation that the excision rule seeks to avoid. Allowing information obtained in violation of the Charter to remain in the ITO because of the affiant’s ignorance or good faith only perpetuates Charter violations by other officers.[12] Appellant seeks to have the Court nuance the excision rule because the current ITO is the product of a series of warrants issued during a long police investigation, but the result of doing so would be to perpetuate Charter violations by cleansing them through subsequent use. [Emphasis by PM]

[Footnote 12: R. v. Dunstan, 2017 ONCA 432, para. 86: “[It] (...) would be to permit the police to Charter-proof their conduct from constitutional scrutiny by the simple expedient of having one officer trick another into making a warrantless entry, on the theory that the blamelessness of the ’dupe, officer would insulate the conduct from attack.”] [Emphasis by PM]

Sufficiency of the ITO

[29] To determine the reliability of the CI information, the judge was required to examine whether such information was “compelling, credible and corroborated”.[19] Thus, taken alone, information from a CI will be insufficient to establish reasonable and probable grounds.[20]

[30] As to the confirmatory elements, these need not necessarily be directly connected to the commission of the crime alleged in the ITO – i.e. the question to be answered is whether there is some evidence that might reasonably be believed to support the issuance of the warrant.[21]

[32] Did the ITO establish reasonable and probable grounds for the issuance of a warrant to search Respondent’s home in connection with drug trafficking?

[33] After excision of the conversations intercepted at the law firm, the only elements linking Respondent to drug trafficking were contained in information obtained from the CI, which the judge analyzed extensively. This is the extent of the content of the ITO concerning Respondent stemming from the CI:

96.1  […] Italiens décideurs qui sont Tonino CALLOCCHIA, Stefano SOLLECITO alias Steve, Vito SALVAGGIO et Leonardo RIZZUTO  […]

96.5  Leonardo RIZZUTO et Loris CAVALIERE sont des avocats et utilisent leur statut afin de passer différents messages à différents membres du crime organisé, que ce soit la mafia italienne, les Hell’s Angels ou les membres des gangs de rue.

[34]      The following is the content of the ITO relating directly to the issue of the CI’s reliability:

Profil et fiabilité de la source « JJ »

97. La source « JJ » collabore […] avec la Sûreté du Québec. Ses contrôleurs sont les S/D Christian OUIMET et Martin ROBERT.
98. Depuis son activation, la source « JJ » a rencontré son contrôleur à plusieurs reprises et lui a transmis de l'information notamment en matière de trafic de stupéfiants. […]
99. Certaines informations reçues par la source « JJ » ont été vérifiées et corroborées par différentes méthodes d'enquête et ont permis la progression de dossiers d'enquête sur des sujets connus du crime organisé qui en font une source fiable et digne de confiance.
100. Cette source n'a obtenu aucune rémunération à ce jour. Sa motivation est la vengeance.

[35] The Court of Québec judge found little indication of reliability in this. In the ITO, the CI did not state how he knew that Respondent is an Italian leader and passes messages. Some objective confirming facts were required.[23] The ITO contained no direct information on the three C’s test (credible, compelling, corroborative) of the CI information other than that quoted above.

[36] Having found no direct indicia of the CI’s reliability, the judge widened her examination of the ITO to find confirmation of the information that Respondent is an Italian leader and passes messages. ... On the whole, the judge found no confirmation of the CI’s assertion that Respondent is an Italian leader. His presence in the company of Wooley or Sollecito, in itself, was not sufficient, because even if Respondent knew these individuals were drug traffickers, this did not tie Respondent to such activities. Reasoning that infers guilt by association should be avoided.[24] Finally, the judge found no allegation that would support an inference that Respondent himself possessed an encrypted cell phone, a device associated with drug trafficking.

[37] Having found no content in the ITO that linked Respondent to drug trafficking and which could confirm the CI’s statements or indicate the CI’s reliability, the judge did not err in concluding that there was no probable cause to search Respondent’s home in connection with drug trafficking once, of course, the conversations intercepted at the law firm were excised from the ITO.

[38] The judge even conceded that the time elapsed (approximately 1 year) since the information concerning Respondent had been obtained from the CI did not per se exclude the possibility that it was reliable. Nevertheless, as summarized above, no confirmatory information could be gleaned from the ITO.

Exclusion under 24(2)

[42] The judge noted the finding of Downs, J.S.C., that the failure of the police to respect solicitor-client privilege constituted serious misconduct. In considering the seriousness of the police misconduct, as she was bound to do,[28]the judge took the Downs judgment into account. The judge could not, in the circumstances of the case, simply ignore the findings in that judgment. To do so would have simply been unreasonable. We underline that the Downs judgment was not appealed. Appellant’s position would have us condone a collateral attack on it.

[43] Moreover, ignoring the Charter violations because the affiant did not know about them absolves the police of the obligation to respect Charter-protected rights. Considering the second Grant 2009 criterion, the judge noted that the illegal search took place in Respondent’s residence, where the expectation of privacy is of the highest order. There is no reviewable error here.

[44] ... In any event, given the gravity of the Charter violations, the judge’s conclusion that the use of the evidence would bring the administration of justice into disrepute is free of reviewable error.

[45] ... Moreover, the Charter violation being balanced in Omar was a s. 9 infringement involving an illegal arrest or an unwarranted “stop and search” on the street conducted by the police, in good faith. The overall circumstances of the factors to be considered in applying s. 24(2) of the Charter obviously differ materially from those of the case at bar....

[46] In the present case, as noted in R. v. Paterson, it is “important not to allow the third Grant 2009 factor of society’s interest in adjudicating a case on its merits to trump all other considerations” such as the justice system demonstrably disassociating itself from police misconduct.[31]

[47] Finally, as our Court observed in Cormier v. R., “[i]t is now well settled that where the first two criteria militate strongly in favour of exclusion the third will rarely compel admission of evidence obtained in violation of the Charter”.[32]

FOR ALL THESE REASONS, THE COURT:

[48]     DISMISSES the appeal.

Mohabir c R, 2021 QCCA 1806

[November 29, 2021] Elements of a Valid Guilty Plea Beyond 606(1.1)? [Mark Schrager, Benoit Moore, Peter Kalichman JJ.A.]

AUTHOR’S NOTE: The accused here was unceremoniously left unrepresented on this trial date and then efficiently ushered through the back door through the route of a guilty plea. The Court of Appeal did not appear to appreciate the dispatch with which this accused was deprived of meaningful decisions between those two points. The result is, that it appears that not only must an accused be informed that the trial judge can make whatever decision they deem appropriate on a sentence, they must appreciate that that includes a possible jail sentence. Otherwise, a guilty plea may be overturned.

Overview

[1] This is an appeal brought with leave of the Court, from Appellant’s conviction on January 30, 2018 by the Court of Québec, Criminal and Penal Division, District of Montreal (the Honourable Daniel Bédard), of two counts of sexual assault. He pleaded guilty and was immediately sentenced to sixteen months incarceration. Appellant seeks to withdraw that guilty plea and obtain a new trial because of the manner in which the proceedings took place, despite the fact that he has served the entire custodial portion of his sentence.

[3] Respondent appears to agree with Appellant that the criteria enunciated in Palmer[2] do not apply to the production of fresh evidence under s. 683 Cr.C. where the new evidence is required to establish that Appellant was unaware of the collateral consequences of a guilty plea, essentially a subjective analysis.[3] Such ignorance of the consequences can lead to the conclusion that Appellant did not benefit from the fairness of the process to which an accused person is entitled.[4] While this speaks to admissibility, in assessing the probative value of the evidence, we must be convinced by it – i.e. it must be credible.[5]

Facts

[7] After a preliminary inquiry, Appellant was ordered to stand trial on two counts of sexual assault committed by touching the genitalia of two female customers while performing body massages in the exercise of his occupation as a massage therapist.

[8] On the Friday before the two-day trial scheduled to commence on Monday, January 29, 2018, Appellant’s lawyer (apparently his third since the charges were laid) finally received a legal aid mandate and suggested to Appellant that he plead guilty. He disagreed with that suggestion. Appellant states that there was no discussion of the substance of the case per se at that time and that the attorney had previously been unwilling to have such a discussion, since her legal aid mandate had not been approved.

[9] On Monday morning, to Appellant’s surprise, his attorney presented a motion to withdraw from the record because of a “strong breach of confidence and trust” between her and Appellant. The judge granted the motion, informed Appellant that the trial would commence the next morning and allowed him the rest of the day to prepare for trial and/or find a lawyer to represent him. Appellant stated to the judge that this did not provide him with “a chance to have a full defence” and that he did not even have a copy of his file. The judge replied that the situation was his own doing and dismissed him until the next morning.

[10] Appellant was then permitted to view the CD containing the complainants’ statements. He used the rest of the day on the Monday to make telephone calls and physically go to lawyers’ offices in an attempt to engage counsel for the trial to commence the following morning, the whole without success.

[11] The next morning, faced with representing himself and feeling unable to cross- examine witnesses, he pleaded guilty. He states that not only did he feel pressured to do this, but he thought that it would give him time to engage an attorney for the sentencing process. However, the sentence was imposed immediately, and contrary to the understanding he formed from comments made at the preliminary inquiry that he would receive a sentence of community work, he was incarcerated for a term of 16 months.

Analysis

[12] Appellant argues that the plea of guilty should be set aside for the following reasons.

[13] The plea was not informed, voluntary and unequivocal in that it was entered without proper knowledge of the consequences and by an accused who wanted to go to trial but was forced by the circumstances to plead guilty. Appellant did not have the opportunity that a lawyer would have afforded him of at least negotiating a joint submission as to the sentence flowing from the guilty plea. Indeed, it does not appear that Respondent made any concession on the plea it recommended to the judge and which the judge accepted and imposed on the spot.

[14] Even without considering Appellant’s affidavit, it is clear from the transcript that he did not adequately understand what was happening and was swept up by the momentum of the proceedings fuelled by the judge and Crown counsel. Appellant was not merely an unrepresented accused, but a layman without any prior experience with the judicial system.

[17] “(…) [T]he right to effective assistance of counsel extends to all accused persons (…)” and is “a principle of fundamental justice.  It is derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada and ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms”.[7]

[18] It is somewhat surprising that the judge would allow counsel to cease representing on the morning of the trial without granting a postponement to Appellant in order to allow him to engage a new lawyer. The judge seems to have assumed that Appellant was somehow at fault or in the wrong for his lawyer’s last-minute withdrawal and for the fact that this was the third defence attorney in the file. The lawyer mentioned certain difficulties in contacting Appellant in the weeks or months preceding the trial, but there is no explanation per se as to why she only succeeded in so doing immediately prior to the trial. Nor is the last-minute withdrawal from the file adequately explained.[8] Though the judge’s failure to postpone is not raised as an independent ground of appeal, in this case it is nonetheless an element affecting the equity of the process in a material way.[9]

[19] The plea appears to have been uninformed. Not only was Appellant not represented when he pleaded guilty, but from the affidavit we learn that he never discussed the consequences of a guilty plea with counsel while he was represented.

[20] To constitute a valid guilty plea, the plea must be voluntary and unequivocal.  The plea must also be informed. In other words, the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea.[10] Even if the requirements for validity are met, a guilty plea may be withdrawn if the accused’s constitutional rights were infringed.^[11]

[22] In Wong, the Supreme Court of Canada observed that giving up the right to a trial by pleading guilty may, in and of itself, constitute sufficient prejudice for relief, irrespective of the chances for an acquittal.[14]

[23] In the case at bar, the withdrawal of counsel and the refusal by the judge to postpone the trial pressured the accused to plead guilty in a situation in which he is not shown to have been responsible for counsel’s last-minute withdrawal. He was so pressured by the situation into which he was placed, that he pleaded guilty against his will and in ignorance of the immediate consequences. Any explanation by the judge was rudimentary if not perfunctory. At the very least, one would have thought that an explanation, in simple terms, that a guilty plea would mean jail time was required. Moreover, no delay to prepare submissions on sentence was offered. [Emphasis by PM]

[24] Consequently, we have no hesitation in concluding that Appellant did not benefit from the fair and equitable proceeding to which he was entitled, irrespective of the prospect of a different ultimate outcome. Such miscarriage of justice requires that the Court authorize the withdrawal of the guilty plea and order a new trial.

FOR THE FOREGOING REASONS, THE COURT:

[25] GRANTS the motion for authorization to adduce fresh evidence;

[26] GRANTS permission to file in evidence Appellant’s affidavit of August 30, 2019 and the transcript of the cross-examination of October 24, 2019;

[27] ALLOWS the appeal;

[28] PERMITS the withdrawal of the guilty plea entered in the court below;

[29] QUASHES the conviction entered and the sentence imposed by the Court of Québec, District of Montreal (the Honourable Daniel Bédard), on January 30, 2018;

[30] ORDERS a new trial;

R v Manukian, 2021 ONSC 7765

[November 24, 2021] Causation of Injuries: Assault Bodily Harm [Justice J. Copeland]

AUTHOR’S NOTE: Causation of injuries is rarely argued in the circumstances of a criminal trial. The answer is often obvious (unlike in civil litigation). Here, the issue had to be considered carefully because the Trial Judge found that self-defence was available for the earlier contact with the victim, but not for continued blows delivered afterwards. When the injuries occurred in the sequence of blows is something that has to be proven beyond a reasonable doubt.

Overview and Facts Below

[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.

[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.

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] ... 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 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....
• 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....

[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.

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