R. v. Mfuamba-Kabongo, 2011 ONCJ 263

COURT FILE No.: Toronto Region Citation: R. v. Mfuamba-Kabongo , 2011 ONCJ 263 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) J. McGibbon, P. Woods ) for the Crown ) — AND — ) ) ) COPPENS MFUAMBA-KABONGO ) M. Ibghi, ) for the accused ) ) ) ) HEARD: March 23, April 2, June 1, September 1, October 13, 2009; March 25, April 6, 16, June 10, July 5, August 23, 2010; March 16, May 16, 2001 FELDMAN J.: Introduction [ 1 ] Coppens Mfuamba-Kabongo entered a not guilty plea to a charge of Assault Causing Bodily Harm.

It is alleged he unexpectedly came upon the complainant outside a beer store in Scarborough and with the assistance of two companions subjected him to a beating that included a significant number of blows to his head and body inflicted for the most part after the defendant pulled him to the ground. This was captured on surveillance videos. [ 2 ] After he and the others stopped battering the complainant, Mr. Mfuamba-Kabongo did not return to his car that was parked in front of the beer store but, instead, fled the scene. He was arrested following a police pursuit.

He had discarded his outer shirt before he was caught. When apprehended, his undershirt had spots of the complainant’s blood on it, a fact likely unknown to him at the time. [ 3 ] The defendant made some inculpatory utterances to the police but said that he acted in self-defence. The Crown submits that the accused was motivated by revenge for having himself been previously robbed by the complainant and two others at gun point. She says that, in any case, the assault was excessive in the circumstances. [ 4 ] The Crown called the complainant, Damien Cooper, and seven police officers in support of its case.

In addition, she adduced a statement from the defendant, ruled to be voluntary after a voir dire, and tendered surveillance videos that depicted images of the fracas outside the beer store. As well, as noted earlier, forensic evidence established that there were spots of the complainant’s blood on the accused’s undershirt a fact conceded by the defence. Mr. Mfuamba-Kabongo testified in his own behalf and, in addition, relied on the evidence of his friend, Ivon Mbuyamba. [ 5 ] I must weigh the evidence and the credibility of the witnesses in making my findings of fact.

I am mindful of the onus of proof on the Crown. The Evidence [ 6 ] At the time of these events, Damien Cooper was an unemployed 22 year old man with a criminal record that included Possession of a Restricted Firearm and 4 convictions for Break and Enter. As well, he acknowledged having breached a Weapons Prohibition Order. He agreed he was an alcoholic and admitted he sold drugs to support himself. He is a person of little character and was an indifferent witness. He wanted no part of the criminal justice system or this proceeding. [ 7 ] Mr.

Cooper testified that in the evening of August 14, 2007, he went to the beer store and purchased a 40 ounce bottle of beer, having, he said, been drinking the whole day, although it is to be noted that one of the investigating officers did not smell alcohol on his breath. He says that when he left the store he was attacked by three men he didn’t know or could identify and with whom no words were exchanged. He told the court he was struck a number of times, dropped to the ground and then pummelled with punches and kicks while he tried to cover his head. He indicated his attackers used a lot of force.

He said this lasted about five minutes after which the men ran away. He recalls the person he saw hit him initially to be black. This is confirmed by the defendant. Mr. Cooper has no idea why he was attacked. He was never confronted in cross-examination by the allegation he took

part in an armed robbery of the accused and others. [ 8 ] A review of the surveillance videos tends to bear out the complainant’s version of events. The defendant and a second male, ‘Patch’, who has just come outside, can be seen talking shortly before the complainant leaves the beer store, walks toward the accused and then retreats before he is rushed by both men, the defendant striking the first blow. Mr. Cooper is then seen attempting to escape inside the store but is pulled back outside by his assailants and taken to the ground by the accused where he is punched, kicked and stomped on.

A third man in a striped shirt joins in, as well. The defendant is a full participant in the thrashing of this much smaller man. When they finish, the accused and Patch walk off quickly together while the complainant gets up and returns inside the beer store where the man in the striped shirt points at him in a threatening manner.

[ 9 ] In his statement to the police, the accused explained that “…what happened was something that happened prior”, although he refused to tell Det. Glen Cecile what that “something” was and asserted it was unfair for him to be charged. He admitted telling the complainant to “come here” because he wanted to talk to him about “what happened in the past” and appeared to allow that he and his companions walked towards the complainant to try to head him off. But he claimed to have felt threatened by Mr.

Cooper’s beer bottle and his “moving around”, actions not apparent on the surveillance videos that rather indicate a near-immediate attack by 2 large men, joined in by a third, on the easily overwhelmed complainant. [ 10 ] Mr. Mfuamba-Kabongo went on to disclaim any responsibility for the actions of the men he said he barely knew, as if to minimize his own role, and in a clear attempt to deflect blame, told the officer, “I didn’t cause all the harm directly by myself”, a tactic to which he resorted, as well, in his testimony. [ 11 ] In fact, he told Det.

Cecile that he only punched the complainant a couple of times and had been on the receiving end of a couple of punches himself, a claim belied by a review of the videos. He also agreed he threw the first punch, he says, because of the previous incident about which he refused to enlighten the officer, perhaps an unintended comment that indicated anger rather than fear. [ 12 ] The defendant uttered some other additional disingenuous comments. With no basis in the evidence, he said the complainant knew why he was looking for him.

And in perhaps a telling slip in response to the officer questioning why he started the confrontation, the defendant answered, “Cause I seen him and what was I supposed to do, see him and then run off?”, an indication, in my view, not of fear but belligerence. In fact, when Det. Cecille pointed out he could have disengaged, the defendant said he didn’t think about that. [ 13 ] Toward the end of his statement, Mr.

Mfuamba-Kabongo said, “I understand I need to pay for what I did and that was no way to respond to what happened in the past, but I mean just how one thing leads to another”, a reluctant admission he got carried away in his attack on the complainant. He lamely added that it wasn’t his fault the complainant was such a small guy. [ 14 ] In any case, when his assailants let up, Mr. Cooper was able to escape inside the beer store, where shortly after, P.C. Jason Hanson, one of several officers called to the scene, observed him bleeding fairly heavily and seemingly losing consciousness. [ 15 ] Mr.

Cooper said he had a bump to his head and cuts to his right palm, arm and thigh from falling on broken glass from his own bottle. He was treated in hospital, where he received stitches for his cuts and released. The complainant is 5 ft. 3 in. and then weighed 110 lbs. The men were considerably larger. It was no contest. [ 16 ] Mr. Cooper told counsel for the accused that although he has carried weapons with him in the past it was unlikely he was then in possession of a knife as he believes he would have used it. He denies making any threats to the men.

He is almost sure he did not break into 90 Mornelle Court, but, as noted earlier, was never confronted by the allegation that he participated in an armed robbery at that address. Defence Evidence [ 17 ] At the time of these events, Mr. Mufuamba-Kabongo was 21 years old and a refugee claimant. He has earned a civil engineering construction diploma and is employed.

He said that in the evening of August 14, 2007, he agreed to drive an acquaintance, ‘Patch’, to the beer store. ‘Patch’ brought along a friend. [ 18 ] The defendant told the court that after parking his car he was about to enter the beer store when he recognized Mr. Cooper as one of the 3 men who had recently robbed him and others at gun point at 90 Mornelle Court. He says he recalls that the complainant was the only one then unarmed, but who ransacked the apartment and took the defendant’s cell phone, a watch given him by his father and some money.

He says he has seen the complainant around the neighbourhood. [ 19 ] The defendant did not report the robbery to the police, nor address it with Detective Cecille, despite the fact it was the reason for the confrontation at the beer store, because he says he was afraid the men would return to kill his friend, as he claims they threatened to do if the police were contacted. It is difficult to follow the logic of disadvantaging himself in this way given his testimony that his friend, now in custody, no longer lived at 90 Mornelle Court, having moved out 3-4 months after the incident.

Significantly, in addition, his only defence witness does not recall this threat. [ 20 ] Although he claimed to have feared for his life during the home invasion robbery and said he was terrified to confront the complainant in the community, nonetheless, the defendant surmised there was a good chance Mr. Cooper still had his father’s watch as it was not worth much and therefore not easily pawned and he felt there was a good possibility he could get it back by merely talking to the complainant in front of the beer store.

The defendant would have the court believe he somehow overcame his trepidation and sought to rely on the good will of the one he feared had and would cause him harm. There is incongruity in this evidence. The more reasonable inference on the evidence is that the accused recognized that he and his two large friends were in a position to exact a price from the complainant for the robbery. [ 21 ] Mr. Mfuamba-Kabongo testified that he “took a step or two” towards the complainant and said, “What’s up, come here, let’s talk”.

He claimed that in response the complainant swung a large beer bottle “back and forth and side to side” and, in addition, motioned to his waist and said he was “strapped”, material assertions not put to the complainant in cross-examination. [ 22 ] The defendant testified these threats happened so fast that his first response was to defend himself by punching the complainant. He said Mr. Cooper fought back and punched him a couple of times. All of these assertions are not borne out by a review of the surveillance videos that, by contrast, indicate a near-immediate onslaught of a retreating complainant.

The accused’s misleading description in his evidence of what occurred as a “mutual clash” reflects negatively on his credibility. [ 23 ] In that regard, as well, the defendant told the court he wasn’t aware if Patch was with him as he walked toward the complainant. The video surveillance makes it clear that he is talking to Patch just outside the beer store following which the complaint exits and is attacked within seconds by the two men. The complainant’s only visible movement is to veer off in an attempt to escape two

large men quickly bearing down on him. There was no time for discussion. [24] Mr. Mfuamba-Kabongo conceded he used a lot of force, enough to have caused the complainant what he himself describedas “fairly moderate injuries”, but necessary, he says, to have kept himself safe from possibly being shot. As he claimed not to be surewhether Mr. Cooper had a weapon, he said that he and his two companions continued to kick their target while he was on the ground andonly stopped the beating when his victim’s shirt lifted and he realized he had no weapon.

He later shifted his evidence in cross-examination, when confronted by his contradictory utterance to Det. Cecille that he still believed the complainant had a gun, to say hehad never ruled out the presence of a weapon. [25] The defendant could not offer a real reason for failing to search the complainant to take away his gun. The video indicatesrather a punishing assault, not a restraint of the complainant, even after he attempted to escape into the beer store.

As well, it seems thedefendant’s concern about the watch had somehow slipped his mind. [26] When the attack ended and the bloodied complainant retreated into the store, the accused and Patch fled the scene, whilethe third man lingered to point threateningly at him. It is difficult to understand how Patch, a mere acquaintance and another man thedefendant didn’t know became so engaged on his behalf in assaulting someone the accused said he never discussed with them.

In fact, intestimony that defies any notion of common sense, the defendant also claimed he didn’t warn his cohorts about the possibility thecomplainant had a gun. It permits the inference that the gun reflects contrived evidence after the fact to justify the beating. [27] As well, the defendant would have the court believe that in leaving the scene he ran after the others. By contrast, the videoshows the accused and Patch heading out quickly together. The defendant appears to be in the lead.

In his evidence, he was once againattempting to deflect blame. [28] In addition, having asserted justification for assaulting the complainant, it is difficult to understand why the defendantdidn’t just drive away rather than run away. It can be inferred, rather, that his need to escape detection in this way indicated hisawareness he had gone too far in beating up the complainant. [29] Mr. Mfuamba-Kabongo also indicated he had an innocent reason for removing his shirt. Having told P.C.

Worsdale, one ofthe arresting officers that he gave his shirt to his friends, the defendant, in his testimony, dissembled somewhat in telling the court that inrunning from the police he was sweating and so took his shirt off finding it too heavy to carry and giving it to Patch or perhaps droppingit. He can’t be sure which, he says, as he had a lot on his mind, including, it appears, eluding the police because of potential jeopardy tohis precarious immigration status despite the fact he felt he had done nothing wrong.

This disingenuous evidence indicates the accused’sresort once again to the convenient excuse that the stress of the moment caused such mental laxity. I view this testimony as self-servingin a transparent attempt to justify the shedding of incriminating evidence, a conclusion reinforced by the likely more credible testimonyof Ivan Mbuyamba, who said the defendant told him he took off his shirt because he got blood on it. That seems about right. [30] Mr. Mbuyamba is a childhood friend of the accused. He said he was also a victim of the robbery mentioned earlier.

Hetestified that three men committed the robbery, two of whom were armed. He recalls his friend’s arm was burned by one of theassailants. He said the man who was unarmed had a medium build, was a little shorter than the other two and was black, as they allwere. That description does not fit Mr. Cooper. [31] Of significance, Mr. Mbuyama does not remember a discussion with his friends after the robbery either about calling thepolice or future safety concerns. That would seem hard to forget. He also said the unarmed man was called ‘Monkey’ by his cohorts,although the defendant claimed not to know his name.

Self-Defence [32] The accused submits he was the victim of an unlawful assault, one he says he did not provoke and that not intending tocause bodily harm he used no more force than was necessary to defend himself. The Crown submits there is no basis in the evidence forthis defence and that even if there were the accused used excessive force in the circumstances. [33] The authorities are clear that the accused need not prove he was justified in using force.

The burden falls on the Crown toprove he was not justified, even if the defence is available only by inference from the evidence. [34] The Code imposes limits or restrictions on the self-defensive use of force linking this defence to the need for self-preservation and distancing it from any colourable use for revenge or retaliatory purposes: R. v. A. C., 2008 ONCJ 747 [35] At the same time, under Code s. 34(1), the accused is entitled to use force to repel an unlawful assault, but only if the forcehe used was no more than necessary to defend himself.

He need not “weigh to a nicety the exact measure of his defensive action”, nor beexpected to stop and reflect upon the risk of consequences which might result from his taking “justifiable defensive action”: R. v.Kandola (1993), (BC CA), 80 C.C.C. (3d) 481 (B.C.C.A.). The Reasonable Doubt Standard [36] The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of thepresumption of innocence. This standard of proof has been described as proof to a near certainty: R. v.

Starr, 2000 SCC 40. [37] Where credibility is important, as in this case, the Supreme Court requires that the rule of reasonable doubt be applied tothat issue: R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397. Cory J. directed the trial judge to acquit if the evidence ofthe accused is believed or, secondarily, if he is left in reasonable doubt by it even if he does not believe that evidence.

The third elementin this analysis obliges the judge to ask himself, even if he is not left in reasonable doubt by the evidence of the accused, whether he isconvinced beyond a reasonable doubt of the guilt of the accused on the balance of the evidence which he does accept. [38] In this analysis, rejection of an accused’s evidence may be derived from “a considered and reasoned acceptance beyond a

reasonable doubt of the truth of conflicting credible evidence”, but not on the basis of preferring the worth of one over the other: R. v.J.J.R.D., (ON CA), [2006] O.J. No. 4749 (Ont. C.A.); R. v. Maharaj (2004), (ON CA), 186C.C.C. (3d) 247 (Ont. C.A.). [39] The trier of fact is entitled to assess an accused’s testimony in light of the whole evidence, including the testimony of thecomplainant, and in so doing comparing the evidence of the witnesses: R. v. Hull, (ON CA), [2006] O.J. No. 3177(Ont. C.A.).

In fact, the court made reference in this regard to the “positive duty to carry out such an assessment”, given the possibilitythat the judge may be left in reasonable doubt concerning the guilt of the accused. Assessment of the Evidence [40] I would ordinarily attach little weight to Mr. Cooper’s evidence given his character deficits and testimonial indifference. Inaddition, he did not or could not identify anyone and did not want to be part of these proceedings.

But he told his story. [41] A review of the surveillance videos tends to support his version of events leading to the significant beating to which he wassubject by three much larger men. On the video there was not a hint of any gesture by him nor was there time for talking. What is clearis that in the course of a fast-moving confrontation outside the beer store the diminutive and retreating complainant was pummelled in anonslaught of kicks, punches and stomping, most of which were inflicted while he lay on the ground. He was bleeding and sufferedinjuries.

On all the evidence, I accept his evidence on the material elements of the offence as objectively reliable. [42] By contrast, the defendant’s credibility is undone both by the content of the videos and his own self-serving testimony. It isapparent in my earlier review of his evidence that I found him to be manipulative in minimizing his role and in deflecting blame to hiscompanions and his victim. His problem is that a review of the videos does not permit an inference that he acted or had cause to act inself-defence.

Rather, as the complainant indicated and the videos demonstrated, the agitated defendant spoke with Patch outside the beerstore and as soon as the complainant stepped outside both men set upon him within seconds as he retreated and was then beaten by themand a third man. [43] I am not left in reasonable doubt on the evidence that the complainant either gestured or expressed himself in a threateningmanner or fought back as alleged by the defendant. There is nothing in the videos to support such an inference as the basis for a defenceof self-defence and I reject it, as I do the assertion the accused believed Mr.

Cooper was in possession of a gun. In that regard, he madeno effort to disarm the complainant when he was in a controlling position to do so. He also contradicted himself as to when he believedthe threat of a gun ended.

On these material issues of fact, I would not rely on the accused’s evidence. [44] Even were there an inference of a threatening gesture on the part of the complainant, which I don’t accept, the response ofthe defendant and his friends, given the forceful onslaught and resulting injuries, was excessive in the circumstances. [45] As well, I reject as implausible the notion that the defendant followed Patch in leaving the scene because he couldn’t thinkclearly.

Rather, I draw the inference he led the others in doing so to evade the police in the same manner he discarded his shirt to get ridof potentially incriminating evidence. I say this in part because it is apparent that the defendant is clearly intelligent and alwayscalculating. In fleeing the scene, he must have recognized that he overreacted in assaulting the complainant and understood it couldjeopardize his refugee claim, the very focus of his early concern once apprehended. [46] In similar vein, the defendant advocated for himself from the moment of his arrest and with Det.

Cecille in asserting hisdefence without giving away too much while testing the limits of police discretion in his favour. In addition, in his testimony, he said heonly “took a step or two” towards the complainant and responded to the swinging of his bottle back and forth and side to side. A reviewof the videos renders this material defence evidence unworthy of credit. [47] Upon a review of all the evidence, I would not rely on the testimony of the accused on the material issues of fact relating tothe attack on Mr.

Cooper whose testimony in this regard is rendered objectively reliable by both the content of the surveillance videosand my rejection of the defendant’s evidence. In addition, the evidence does not leave me in reasonable doubt that the accused acted inself-defence. Rather, the evidence permits the inference that when the opportunity presented itself the accused initiated and was a fullparticipant in a revenge beating of the complainant. Conclusion [48] On the basis of W.(D.) principles, the prosecution has proven the essential elements of the offence to the requisite standard.

In the result, the accused will be found guilty. Released: May 16, 2011 Signed: “Justice L. Feldman”