Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Criminal law — Appeals — Powers of appellate court — Admission of fresh evidence — New trial — Criminal Code offences — Offences against person and reputation — Second degree murder — Respondent smashed victim’s head against bar repeatedly — Afterwards, outside bar, another patron punched victim’s friend, then victim, who crumpled to ground unconscious — Respondent convicted of second degree murder and other patron convicted of assault causing bodily harm — On appeal, respondent’s fresh evidence contradicted cause of death evidence adduced at trial — Whether Court of Appeal erred in law in holding that, where accused made reasonable tactical decision to refrain from calling evidence, that same evidence can be admitted as fresh evidence on appeal in absence of strong reason to doubt factual accuracy of trial verdict.

The victim and some friends went to a nightclub. At the bar, the respondent, Mr. Manasseri, smashed the victim’s head repeatedly against the steel surface of the bar. The victim was escorted out of the bar. He was intoxicated, dazed and seemed as if he were in shock. One of his friends left with him. Outside the bar, another patron, Mr. Kenny, walked up to the victim and his friend, punched the victim’s friend and then the victim, who fell to the ground unconscious. The victim was taken to hospital where doctors noted that he had fixed, dilated and non-reactive pupils and uncontrolled brain swelling. The victim never regained consciousness and died the next day. Mr. Manasseri was charged with second degree murder. Initially, Mr. Kenny was charged with assault and assault causing bodily harm. Shortly before Mr. Kenny’s trial was to begin, the Crown upgraded the charge to manslaughter and joined him with Mr. Manasseri. Both accused filed applications for severance, which the trial judge dismissed. Ultimately, the jury found Mr. Manasseri guilty of second degree murder and Mr. Kenny guilty of two counts of assault causing bodily harm. Both accused appealed. Mr. Manasseri sought an acquittal or a new trial on the basis of fresh evidence about what caused the victim’s death. Mr. Kenny sought a stay of proceedings because he was not tried within a reasonable time. Both accused argued that they should not have been tried together. The Court of Appeal allowed the appeal, ordered a new trial for Mr. Manasseri and entered a stay of proceedings for Mr. Kenny. The Crown’s application for leave to appeal to this Court concerns Mr. Manasseri only.