R. v. Kasonga, 2011 ONCJ 206

Citation: R. v. Kasonga , 2011 ONCJ 206 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DOMINIQUE KASONGA Before Justice D.M. Nicholas Reasons for Judgment released on April 15, 2011 D. Eastwood ........................................................................................................... for the Crown M. Munsterman ................................................................................... for the accused Kasonga NICHOLAS, J.: [ 1 ] On March 10, 2010 Mr. Kasonga pleaded guilty to two substantives charges: a

section 266 assault, and a

section 281 offence of abduction on three year old B.M., both alleged to have occurred on September 3, 2009. He also entered pleas to a

section 145 breach of undertaking relating to his consumption of alcohol, and a breach of probation for failing to keep the peace. These pleas were entered before Justice Dempsey on October 19, 2009, but due to illness, those pleas were struck and re-entered before me on March 10, 2010. The Crown is seeking to have Mr. Kasonga declared a Long Term Offender. The issues of consent for that application, and the required psychiatric assessment have resulted in considerable delays. Mr.

Kasonga has been in custody since October 19, 2009, a period of 18 months, at a detention facility ill equipped to deal long term with offenders who have significant mental illnesses such as his psychotic illness defined as schizoaffective disorder. [ 2 ] As the inquiry has proceeded on and off over the last year, I have become concerned about the plea of guilt with respect to the

section 281 abduction allegation. I voiced this concern immediately upon viewing the video evidence of the event which was only shown to me almost a year after the facts of the plea were read in. I was not aware, when the plea was entered, that the entire event was videotaped. My reaction to the video was immediate and made abundantly clear to counsel and Dr. Klassen. In my mind, it cast in a significantly different light what actually occurred in the transit shelter and outer area. Since that viewing, I have raised the matter again with counsel in court, in chambers, and in writing.

Upon hearing of my concern, defence consulted Mr. Kasonga and advised me, initially, on the record that her client did not remember the event due to intoxication but acknowledged it was him on the video and did not contest the evidence. As a rule judges do not challenge a plea of guilty.

Having seen the video and the acknowledgment of defence that Kasonga had no memory of the event, the hearing became somewhat of an evidentiary one. [ 3 ] As a result of my concerns that the video depicted an event which to me was quite different than the facts read in, I requested photographic evidence of the actual scene, particularly its dimensions, to clarify the parameters of this abduction. I also invited the Crown to call the parents as witnesses to clarify the factual basis underpinning this plea. They are the only available witnesses to the incident.

Before I deal with the video, I will set out the facts as read in on March 10, 2010. [ 4 ] On that day mall security began to track Mr. Kasonga because he appeared to be intoxicated and was extremely unsteady on his feet. The video clearly shows him stumbling about and looking to be rather disoriented until he is escorted out of the mall because of his intoxication. In the mall he is not seen causing any mischief just stumbling about. At 17.27 he is seen walking into the transit shelter. There is then a further video of what occurs within the shelter when he and the complainant are there.

That video, which will be described below, has given rise to all of my concerns regarding the plea of guilty by this accused.

[ 5 ] The facts, as read in with respect to what occurred in the shelter, are found in the transcript of the plea at pages11-13 and are summarized next as they were read in. “ After the accused enter the bus shelter, three year old B.M ma is seen walking through the automatic doors and she’s seen sitting down on the bench adjacent to the accused. The accused is seen glancing over at the young girl several times. She then gets up and walks through the automatic doors and within seconds comes back in and again sits on the bench. Ms. H., her mother and father C. M., are not in view of the cameras.

They are standing on the platform outside the automatic doors. Miss M. is then seen exiting and then going back in. The accused at this point stands up and staggers over to her and picks her up in his arms. What happens next is out of view of camera (emphasis added by me). A. H. had advised that at that time C. M. had questioned her if the bus that was approaching was theirs. A. H. then glanced over to the bus and when she turned she noticed that the accused was crouched on the ground and had B. M. went into his arms. Ms. H. then yelled to C. M. and he yelled at the accused ―She’s is mine!

C.M. then approached the accused to let her go. He put his hand on the accused chest. The accused does not acknowledge him. C. M. then begins pulling the child away from him. C. M. then advised that an unknown male approaches them and states: “Hey buddy let her go”. The accused then lets go and hurriedly enters the rear of the bus. It was bus 95”. [ 6 ] . These facts were expanded upon by the Crown during the plea. She added that the mom did not smell alcohol on him but there was a strong odour of cologne.

The father provided further information as well and stated that when he put his hand on the man’s chest and said " let go of my daughter ” Kasonga did not and so he “ grabbed the man’s sweater ” with a clenched fist. The father then grabbed B. and pulled as he pushed against the man’s chest. The man left in a hurry and got on the bus. He also believed the male was intoxicated. [ 7 ] As part of the plea I was also advised that the security who had escorted him out of the mall noted that he had bloodshot eyes, was unsteady on his feet, and had slurred speech.

Crown also advised as part of the plea that, in a later interview, the mother indicated that “ he really seemed inebriated, his walking was really wobbly, he slurred when he said yeah, yeah , yeah. She did not know if it was intoxication or an accent. She indicated that “we stopped him outside the doors. He didn’t get far” .

The father also advised that his wife had yelled out to him “ the man has our daughter ” He stated that he had a death grip on Kasonga and said “ Let go of my “effing” daughter ” because the accused had a bear hug on her, and then the other man came over and said “Hey buddy” and confronted him and he set her down. That man is unknown, was not interviewed, and did not provide a statement. Statements attributed to him cannot be verified. [ 8 ] A copy of Kasonga’s extensive record was filed. Since 1995 he has been before the courts on 22 occasions, including a few in the Ottawa Mental Health Court.

He has never served more than 90 days in jail for any of his offences even when pre-trial custody is taken into account. Clearly, having reviewed the transcripts of his various pleas, his psychiatric condition has been taken into account in our Mental Health Court. He has a long history of psychotic illness with a long history of care at various mental health facilities. He has been prescribed intramuscular anti-psychotic medications for years with periods of compliance as well as non compliance. He has, for many years been in receipt of Disability payments for his mental illnesses.

He also is a chronic alcoholic who offends when under the influence. He was intoxicated on the date of this event. This has resulted in a revolving door pattern of short pre-trial detention and release with no residential treatment. He would have benefited greatly, in my view, from the treatment programs available at the St. Lawrence provincial treatment facility, with respect to both his alcoholism and his mental illness, had sentences in the mid-range reformatory been imposed.

The Crown now seeks a significant penitentiary term. [ 9 ] Because of the nature of this offence, and the young age of the complainant, a Sexual Behaviour Assessment was ordered. Crown sought and obtained the consent of the Attorney General for an application to have Kasonga declared a Long term offender. This is one of the most serious sanctions in the criminal courts. He was seen by Dr. Gray on November 16, 2009. His assessment note as to Kasonga’s version of the offence is as follows: “ Kasonga said that he was drinking heavily on the day of the index offence.

He said he drank an entire bottle of Southern Comfort as well as several beers. He said he was not thinking clearly. He said he was waiting at the bus stop and was going to take the bus. He said the young female victim ran up to him for a reason unbeknownst to him. He said he gave the girl hug and picked her up. He denied that this was sexual act and denied any arousal at the time. Mr. Kasonga denied that he tried to bring her to the bus to take her with him as was alleged in the Crown version of the offence..... Mr.

Kasonga explained that the reason he appeared to be staggering in the Crown Brief was because he had been drinking heavily ”. He said he did not remember a lot of the details around the index offence and was surprised when he was arrested for it. [ 10 ] When Dr. Gray was testifying about the offence I noticed that Kasonga was snickering and/or laughing. In the belief that it was disrespectful, I mentioned it to counsel. I had observed this on a few occasions. I was advised by Dr.Gray and later by Dr. Klassen that Kasonga had a very long history of auditory hallucinations.

This is referenced at page 3 of Dr.Gray’s report which states that, he often hears voices which he describes as several people talking in different dialects. He experiences these symptoms when he is ill, not on his medications, or drinking heavily. Dr. Gray advises that he and his brother were diagnosed as schizophrenics back in the Congo. Despite the fact that his Static 99 score puts him at high risk to re-offend violently and/or sexually, Dr.

Gray concluded that this offence was not sexually motivated as there is no evidence to suggest that he has a sexual attraction to children. [ 11 ] This finding is significant to me. In a kidnapping/abduction case which involves a stranger, as opposed to an estranged parent, because the likelihood of that child being sexually abused and then killed is great. Dr. Gray concludes as follows: “ Mr. Kasonga was certainly operating under the influence of substances, probably alcohol, at the time of the index offences. The official account noted that he was walking with an unsteady gait and was somewhat disorganized.

He smelled heavily of cologne which may

have been an indication of the substance he was consuming. It is true he picked up the young girl and walked a few steps away with her. There is no strong evidence, however, that what he was doing was an attempt at a sexual act. The combination of his being under the influence of substances causing poor judgment and impulse control and the fact that the young girl approached him while he was sitting on the bench in the bus shelter may have led to acting the way he did”. [ 12 ] Dr.

Gray does conclude that Kasonga’s risk of re-offending violently but not sexually is high because of because of his chronic and uncontrolled substance abuse; his spotty compliance with psychiatric follow up despite a major mental illness (schizophrenia); the fact that he has command hallucinations as a symptom of his schizophrenia, including commands to commit violent acts, his lack of job skills, his lengthy record. I add these comments for completeness.

They cannot influence my decision as to whether or not this plea of guilty was properly entered for this specific intent offence of abduction/kidnapping. [ 13 ] Dr. Klassen prepared the Court ordered psychiatric assessment for the Long Term Offender application. He confirms multiple stays at mental health hospitals and prescribed anti-psychotic medications since 1996. He was of the view that he was fit to continue the proceedings as of August 22, 2010. He was also of the view that he was not certifiable under the Mental Health Act.

For the most part, I have not had concerns about fitness but was rather alarmed to be informed of the auditory hallucinations which occurred on several occasions during the hearing. At the time I obviously misinterpreted this behaviour. Klassen describes him as “ biologically predisposed to the development of psychotic illness ”. He notes that, in addition to his mental health and addiction issues, he has personality traits that contribute to his difficulties. Diagnostically, he concludes that he suffers from serious primary psychotic illness, a substance related diagnosis and a personality disorder.

He cites a description of schizophrenia which describes it as a life-long condition with presence of delusions, hallucinations, grossly disorganized thought and behaviour sometimes in combination. He also suggests his symptom burden is exacerbated by his substance abuse. Nonetheless he can be quite treatment responsive in the right setting. His revolving door pattern of pre-trial custody and release has not really permitted any stay in a treatment oriented facility such as St. Lawrence.

Klassen does not conclude that his personality style is anti-social. [ 14 ] In the risk assessment portion of his report, he describes Kasonga as having a moderately high risk according to the Static 99R and a moderately high-to-high score on the HCR-20. However, in his evidence, he echoed Dr. Gray’s conclusion that this incident was not sexually motivated. At p. 42 he adds that the severity of his offending behaviour has typically been quite modest. He acknowledges, as do I, that the predicate offence in this case may have been quite distressing.

I assume he is referring to the parents and I do agree on that score. He also opines that, to date, Kasonga has shown substantial indifference to the reasonably foreseeable consequences of his behaviour. He agrees with Dr. Ward that alcohol may be “ the single most powerful variable affecting his behaviour ”. He refers specifically to the fact that he has not received substance abuse treatment. In his opinion, stated at p. 44 of his report, he states that Kasonga does not necessarily require institutional-based sex offender treatment programming.

He concludes that he is likely to recidivate absent significant intervention. [ 15 ] On February 24 2011 I became aware that the matter was captured on video and the disk was filed as an exhibit. Kasonga is seen entering the bus shelter, which has two fairly long benches separated by several feet. From the moment he enters the shelter and sits on the bench, to the moment when the incident is over and he is walking to take the bus, the total time lapse is 94 seconds.

At 1:12 he sits, at 1:17 B.M. walks in alone and sits at the other bench, at 1:40 she leaves, 1:45 she again enters the shelter alone and goes to the other bench, at 2:12 she leaves alone again, at 2:27 Kasonga gets up and starts to walk to the exit of shelter, he is staggering from side to side. At no time prior, while he and the girl are in the shelter, does he ever approach her or speak to her. He does look at her a few times as most people would look at an unaccompanied three year old in a bus shelter. He never leaves the bench he is sitting on to even approach let alone sit on the one she is sitting on.

As he nears the door, B.M.’s little legs can be seen walking back into the shelter alone for the third time. Nothing in the video leads me to infer that he got up to go towards her, rather her little legs are only visible walking towards the door as he is approaching it. They meet in the doorway and, at 2:32, he swoops down with an unsteady almost stumbling gait and picks her up in his arms. She is not yanked or pulled but picked up the way one would normally pick up child. She put her arms around his neck. While he is still in the doorway an arm is seen reaching towards him almost instantaneously.

He breaches the door at 2:38 Counsel suggest that some struggle is seen. Having now viewed this video a dozen times, I do not draw the conclusion. There is no clear video evidence before me of the actions that occurred from the time he is intercepted in the door frame. At 2:46 his legs, recognizable because of the light coloured pants he is wearing, are seen walking towards the bus. This is clearly after the child is back with her parents. Therefore the maximum time he could have been in physical possession of B.M. was mere seconds.

I acknowledge that an abduction can occur in a manner of seconds. [ 16 ] The parents have testified. There are significant contradictions in their evidence which are of concern. I found the evidence of the mother to be problematic. However, that is not the focus of this ruling. This was a terrifying moment for these young parents seeing their three year old in the arms of a stranger. The evidence of the two parents makes plain that Kasonga did not respond immediately to the request to hand over the child, and there was a bit of a tussle. However the mother did testify that “it all happened so fast”.

She testified that he smelled very strongly of cologne. In the transcript of February 23, 2011 at pg. 96 she testified that “ I don’t know if he was intoxicated or on something but he seemed like... he really honestly seemed inebriated... I couldn’t tell because all I could smell was that cologne... he was walking really wobbly. Really really wobbly. And it almost sounded like he was really slurring when he was trying to say Yeah, yeah, yeah. It seemed kind of like... not normal.

Not clear.” [ 17 ] She agreed that he could not go anywhere because he was stopped right at the door, and because of the people confronting

him. To her it was clear he was heading to the back of the bus. None of this visible on the video. She says she saw him take two stepsout of the door. During cross-examination at pg. 136 she initially said, “In my opinion I don’t think he knew what he was doing, likethinking anyways. Like, I don’t think he really comprehended what was necessarily.... Like, the confrontation itself, it happened veryfast”.

She later retracted that answer somewhat and testified that “she could not speak for him”. [18] When I first expressed concerns about the plea, over a month ago now, defence counsel met with Kasonga reviewed thefacts, and advised me that he did not remember the incident but agreed he was the man in the video and would not dispute the facts. Thatposition has been maintained throughout until the final day of this argument when he contradicted himself many times. Admittedly, it ishighly unusual for a judge to embark on an inquiry on the propriety of a plea when that is not sought by defence.

Counsel wereencouraged to make submissions in court to preserve the record should this matter be reviewed. I thank them for their submissions. [19]

Section 281 is a specific intent offence. In this case it has been particularized in the Information to refer Kasonga who, “notbeing the parent or guardian or having the lawful care or charge of B. M. a person under 14 did unlawfully take that person with intent todeprive a parent.” In R. v.

Chartrand (SCC), 1994 2 S.C.R. 864, the Supreme Court ruled that the concept ofdeprivation relates to the ability of the parent to exercise control over the child and the mens rea can be proven by the mere act ofdeprivation of the parent through a “taking” as long as the trier of fact can infer that the accused knew or foresaw that his actions wouldbe certain or substantially certain to result in the parents being deprived of the ability exercise control of the child.

In this case, it can beargued that no “taking” occurred as the child was in full view of a parent, on their evidence, within a second of her being picked up. Thechild was never removed from the scene, although clearly he did refuse to relinquish control for a few seconds, between 2.38 and 2.46.

Iacknowledge that the brevity of the matter is but one consideration as to the “taking” [20] As for the intent, or lack of evidence of specific intent in this case, we have an accused with a long history of mental illness,so intoxicated that he was escorted out of a mall in daylight although he was not causing a disturbance. He is repeatedly seen staggeringthroughout the video in the mall and when he bends to pick up B.M. I now know that he has a very long history of auditoryhallucinations which were evidenced by his snickering and laughing during testimony on several occasions during these lengthyproceedings.

I misinterpreted that behaviour for several months. [21] Crown has referred me to the decision in R. v. J. M. H.[2008] O.J. No. 4865 which was an “enticing” case with an invitationto a child to attend a man’s apartment. That decision, as well as the facts in R. v. Walker (ON CA), [2000] O.J. No.4091, deal with clear intent to entice the child from a parent. In the facts before me, B.M. is alone each and every time she is in hispresence. Her parents are not known to him. Both psychiatrists are firm in concluding this offence was not sexually motivated.

Kasongahas no history whatsoever of criminality towards children. I have also reviewed the cases provided on the issue of intoxication. Crownsubmits that intoxication is not a defence in this case. That is not the issue, specific intent for the act is. Kasonga’s high level ofintoxication is objectively demonstrated on the two videos. The mother also gave strong evidence on this point.

It is objectively apparent. [22] When I entered the courtroom to hear evidence on the last day of this motion, he was advising his counsel, in an agitatedstate, that he “was drunk and could not remember” but wanted to take responsibility. He then gave me two completely differentcomments. Crown has argued that even if he cannot recall now that does not mean that he would not have been able to have that intent atthe time. That submission is rather disturbing. I cannot agree with the Crown submission that although he appears to be drunk, it is notto the extent that he does not know what he was doing or her other

interpretation of the facts. Significant intoxication is apparent. [23] We have gone very far into this proceeding and his entire significant criminal past is before us. I cannot consider that indetermining whether there is a factual basis to sustain this plea. I conclude that the concept of “tunnel vision”, referred to in somewrongful convictions decisions and articles, is such in this case that Crown’s view of Kasonga’s actions on that date are imbued orwedded with the knowledge of his extensive criminal past.

Her view of the facts and the intent she infers from each action that he takes,including looking at the child, does not sustain objective review. [24] Defence affirmed more than once during the proceeding that he did not remember anything but did not disagree with what theparents are saying. With respect, that is not enough to expose this accused to a long term offender designation and a possible lengthypenitentiary sentence. We are dealing with a severely mentally ill person.

Defence, in submissions, advises that he has now admitted thathe did intend to take the little girl and that he did not want the plea struck. I do not believe that statement based on the comments Ioverheard on the date of submissions. What is clear is that he does not want the plea struck and that he has given his lawyer instructionsfrom the outset to enter a plea. This is consistent with his entire record. He has twice tried to discharge his counsel in court because “thisis taking too long” I agree with him.

He has been lingering in a detention facility with no treatment for about 18 months. [25] This is the third DO and/or LTO application I have dealt with. In the matter of R. v. Ingola, decided in the era of 2 for 1credit amounted to 5 years of pre-trial credit and I sentenced him only to a few months jail which irked considerably the federal paroleofficers who supervise these offenders while on long-term supervision. He also had a lengthy record of convictions, had substance abuse

and mental health issues, had never had a trial, and had never been to the penitentiary before facing the DO and/or LTO designation. There is a quantum leap between a lengthy career of pre-trial custody of days or a few months and probation and exposure to a DO or LTO designation and lengthy penitentiary term. [ 26 ] For all of these reasons, in my view, the plea of guilty to the abduction charge cannot stand.

This is a specific intent offence with no evidence of the intent, significant intoxication, an actus reus of mere seconds, and a child never “taken” anywhere although not relinquished to parents immediately. At trial, that intent can be inferred from the evidence. I have not found a case where the specific intent was or could be inferred on a plea where the accused does not recall the event, let alone a case where the accused was both mentally ill and intoxicated and having auditory hallucinations during the court proceedings.

Kasonga’s comments to me and defence counsel in asking me not to strike the plea are the words of a man anxious to be out of jail, which is understandable. [ 27 ] This decision has weighed heavily on me. I have come to the conclusion that it would be a miscarriage of justice and a wrongful conviction, despite the plea, for me to continue with the abduction charge. There is no doubt that his criminal record of conviction could justify such an application. However, the evidence does not. Regrettably I do not have the authority to stay the charge as there is no evidence of abuse of process.

The remaining offences of assault by picking up the child, and breaches of consuming alcohol and failing to keep the peace do not require specific intent. Kasonga has been found fit and defence counsel strangely has not raised the issue of criminal responsibility, most likely because of the instructions to plead. I am concerned that this decision could result in further prolonged incarceration for him, should the Crown attempt to enter this plea before a third judge. As part of this sentencing hearing I have heard all of the evidence that would have been available at trial.

Had this been a trial I would have acquitted based on the complete lack of evidence of specific intent and the rather de minimus nature of the “taking” if in fact a “taking” occurred at all. I advised counsel of that fact when I first raised my concerns about the plea. [ 28 ] Justice Rosenberg has recently called for a review of the plea bargaining process. Pleas such as this one often occur when an accused is denied bail and wishes to avoid a prolonged period of detention awaiting trial. The majority of criminal charges in this jurisdiction are resolved without trial.

Much focus is placed on early resolution and joint submissions. I am not privy for Kasonga’s reasons for pleading to an offence he could not remember, when facing a long term offender application, since the application has been very lengthy. It is very troubling given his psychiatric background. I acknowledge that I am taking an extraordinary step is striking a plea over the objections of defence counsel. In this case, I no longer feel this proceeding is just, fair or equitable given Kasonga’s psychiatric history and level of impairment and the video evidence of the actual event.

A long term offender designation in this case would, in my view, be an injustice because the objective facts cannot support the plea for this specific intent offence. The plea to the s. 281 charge is struck. Released: April 15, 2011 _________________________________ Signed by “The Honourable Justice D.M. Nicholas”