Court of Appeal for Ontario
Date: August 8, 2025
Docket: C70792
Judges: van Rensburg, Huscroft and Copeland JJ.A.
Between
His Majesty the King Respondent
and
Moadd Maadani Appellant
Counsel:
- Matthew Gourlay and Erik Arsenault, for the appellant
- Susan Reid and Kevin Pitt, for the respondent
Heard: February 12, 2025
On appeal from the conviction entered on December 16, 2021 and the sentence imposed on May 24, 2022 by Justice Julianne A. Parfett of the Superior Court of Justice, sitting with a jury.
Huscroft J.A. (Majority Opinion)
OVERVIEW
[1] Moadd Maadani fired five shots at Ryan Kabuya-Ntumba during a confrontation in Ottawa's ByWard Market on July 1, 2019. Four or five of the shots hit Kabuya-Ntumba and he died of his injuries a short time later. Maadani pleaded guilty to possession of a loaded restricted firearm and not guilty to a charge of second degree murder.
[2] The central question at trial was whether Maadani acted in self-defence. The theory of the defence was that Kabuya-Ntumba fired his gun first and Maadani returned fire in defending himself. The Crown argued that the appellant was guilty of murder because he initiated the gun fight, but also because he fired several shots while Kabuya-Ntumba was on the ground and no longer a threat. One of the shots went into Kabuya-Ntumba's back.
[3] The jury rejected Maadani's self-defence claim and found him guilty of second degree murder. He was convicted and sentenced to a term of life imprisonment with no parole eligibility for 14 years.
[4] On appeal, Maadani argues that the trial judge erred in failing to properly instruct the jury on his role in the altercation and on the probative value of his post-offence conduct. In addition, he brings a motion to introduce fresh evidence from Brightner Casseus, who was present when the shooting occurred. Casseus's proposed fresh evidence is that Kabuya-Ntumba was the aggressor in the altercation; that Kabuya-Ntumba threatened Maadani prior to the shooting; and that Kabuya-Ntumba drew his weapon and fired first. He also seeks to introduce fresh evidence from the law clerk of trial counsel, who proffers an explanation for not obtaining the evidence of Casseus at trial. Maadani seeks a new trial and, in the alternative, seeks leave to appeal the 14-year period of parole ineligibility.
[5] I conclude that it is not in the interests of justice to admit the fresh evidence. In short, the evidence of Casseus is not reasonably capable of belief. The evidence of the law clerk goes only to the question of due diligence, which need not be addressed. I conclude, further, that the trial judge did not err in instructing the jury.
[6] I would dismiss the motion to introduce fresh evidence and dismiss the conviction appeal. I would grant leave to appeal sentence but would dismiss the sentence appeal.
BACKGROUND
[7] The appellant and Kabuya-Ntumba were part of different groups at the PPL bar in Ottawa's ByWard Market on June 30, 2019. They remained at the bar until closing time and left with their respective friends.
[8] The events that followed are captured on security video but the images are of low quality and there is no audio. It is clear, however, that a fight broke out between the two groups. In her reasons for sentence, the trial judge found that Maadani obtained the satchel where his gun was stored long before the confrontation between the groups became physical and was prepared to use the gun before he was aware that Kabuya-Ntumba was also armed.
[9] Kabuya-Ntumba punched Maadani and was pulled back by friends. Kabuya-Ntumba then broke free and ran towards Maadani. Maadani fired five shots at Kabuya-Ntumba, hitting him four or five times, including once in the back; Kabuya-Ntumba fired one shot at Maadani, hitting him in the leg. Kabuya-Ntumba died two and a half hours later of catastrophic blood loss.
[10] After the shooting, Maadani fled to Montreal with his friend, Islam Rashed, and was treated at a hospital for the gunshot wound to his leg. He advised health care workers and the police that he had been robbed and shot in the leg. He turned himself in to police on August 21, 2019.
The Crown's theory
[11] The Crown argued that Maadani fired first in the altercation with Kabuya-Ntumba and that the video did not show Kabuya-Ntumba with a gun in his hand when he was running towards Maadani. According to the Crown, Maadani's conduct was provocative and fuelled the final confrontation with Kabuya-Ntumba. The Crown asserted that Maadani welcomed the fight with Kabuya-Ntumba, reaching repeatedly for his gun and purposely challenging him.
[12] The Crown opposed Maadani's self-defence argument, stating that his conduct firmly established that his response was unreasonable. The Crown argued that Maadani was not acting from a place of fear but out of aggression and revenge, and that he meant to kill Kabuya-Ntumba when he shot him several times at close range.
The defence theory
[13] Counsel for Maadani argued that the first shot was fired by Kabuya-Ntumba and that Maadani returned fire in self-defence. The speed with which Maadani returned fire was consistent with a reflexive action in self-preservation rather than an attempt to injure or punish Kabuya-Ntumba. But even if Maadani did shoot first, it was still in self-defence because he reasonably believed he was facing a threat of lethal force when Kabuya-Ntumba ran at him, and it is likely that Kabuya-Ntumba had pulled his gun before he started running.
THE PROPOSED FRESH EVIDENCE
[14] There is no question that the appellant killed Kabuya-Ntumba as a result of shooting him four or five times. The proposed fresh evidence relates to several questions surrounding the appellant's self-defence claim – among other things, who instigated the confrontation, who pulled a gun first, and who shot first.
[15] The fresh evidence consists of two affidavits: one from Brightner Casseus, an eyewitness to the shooting, and another from Kathryn Mongeau, a law clerk to Maadani's trial counsel. I summarize the fresh evidence below.
Casseus's evidence
[16] Casseus swore his affidavit on April 21, 2023, almost four years after the shooting. He swore the affidavit without having viewed the video and his evidence is based entirely on his own recollection. Casseus asserts the following:
Kabuya-Ntumba was not his close friend but was in his group. Casseus is not friends with Maadani and does not know him personally.
On the night of the shooting, Kabuya-Ntumba asked Casseus to join him at the PPL bar. Kabuya-Ntumba normally carried a gun and had a gun on him at the bar. He had less street credibility and had to carry the gun to protect the more senior people in the group.
While at the bar, Kabuya-Ntumba repeatedly told Casseus that he wanted to rob an "Arab guy" who had a lot of money, chains, and marijuana, a man Casseus now knows to be Maadani.
After they left the bar, Casseus and Kabuya-Ntumba chased three men whom Kabuya-Ntumba wanted to shoot. Kabuya-Ntumba had his gun drawn but did not point it.
After the three drove off, Kabuya-Ntumba said that he wanted to "'find that Moadd guy and rob him' or something to that effect".
Casseus got separated from Kabuya-Ntumba and caught up with him arguing with Maadani and his group. Someone from Maadani's group threw a punch and a scuffle broke out. Casseus punched someone but he does not know who.
During the fighting, Casseus saw Kabuya-Ntumba reach into his pocket for his gun. He did not pull it out but showed the top of it to everyone in Maadani's group and said "'you guys don't want smoke', or something to that effect".
Casseus tried to remove Kabuya-Ntumba from the fight because someone said "police". Kabuya-Ntumba dropped his gun and Casseus told him to grab it because he did not want his prints on the gun. Casseus was concerned Kabuya-Ntumba would shoot someone.
Kabuya-Ntumba was drunk and tried to get at Maadani. He told Casseus he had long known Maadani and that he was a baby. Kabuya-Ntumba said "'fuck him, I don't wanna rob him, I actually wanna kill him now' or something to that effect".
Casseus told Kabuya-Ntumba that he would have to take responsibility for any charges if anything happened. Kabuya-Ntumba was yelling that he was going to kill Maadani as Casseus held him and tried to pull him away. Casseus was holding Kabuya-Ntumba on his shoulder with his arm over his neck but Kabuya-Ntumba was resisting his attempt to pull him away.
Kabuya-Ntumba broke away from Casseus's grasp and said "'fuck it, I am going to smoke them' or something to that effect". Kabuya-Ntumba pulled his gun as Casseus stood beside him.
Kabuya-Ntumba pointed the gun at Maadani. Maadani pulled his gun in response. Casseus backed away from the situation and crossed the street.
Looking back, he saw Kabuya-Ntumba shoot at Maadani. Kabuya-Ntumba shot first.
As he ran across the street, Casseus saw Maadani shoot at Kabuya-Ntumba. He was surprised Maadani had not been killed by Kabuya-Ntumba's shot. Casseus thought Maadani might have squeezed the trigger by accident.
Casseus kept walking across the street and left the scene in a taxi. Before he got in the taxi, he saw Kabuya-Ntumba drop something that looked like his gun. Kabuya-Ntumba picked it up then kept running away.
Casseus would have stayed if he thought Kabuya-Ntumba had been injured or was dying. Casseus left because he thought Maadani would be dead.
After Casseus was arrested in September 2019, he encountered Maadani at the Ottawa-Carleton Detention Centre. He attacked Maadani for killing Kabuya-Ntumba.
[17] Casseus was never interviewed by the police; he says the police did not contact him for an interview even after he was in custody. He asserts that he did not come forward during the trial because he thought Maadani would beat the murder charge and that his evidence was not required. He says he knew that Maadani was defending himself and did not imagine that he would be found guilty of second degree murder. He reached out to Maadani's defence counsel after his trial because he thought it was wrong that he was convicted and sentenced to life.
Cross-examination of Casseus
[18] In July 2024, the Crown cross-examined Casseus while showing him video and still photos from the incident. His testimony includes the following:
His memory of the events from five years ago is not clear.
He did not see the video before giving his affidavit. He knew of its existence because he was told of it by a friend but did not remember who told him.
When Casseus and Kabuya-Ntumba left the bar, Kabuya-Ntumba did not have his gun drawn and the two of them did not chase the three men outside the bar.
Kabuya-Ntumba left with a woman and Casseus brought him back. Then Casseus and Kabuya-Ntumba left together. Casseus did not get separated from Kabuya-Ntumba but arrived at Maadani's group with him.
Casseus did not come upon Kabuya-Ntumba already engaged in a fight. Kabuya-Ntumba was walking away from Maadani's group. Kabuya-Ntumba returned only after Casseus and others crossed the street toward Maadani's group.
Casseus's efforts to de-escalate the fight were verbal rather than physical.
Casseus was ahead of Kabuya-Ntumba by 6-8 feet as they approached Maadani's group and could not see what he was doing.
Casseus's conversation with Kabuya-Ntumba about taking responsibility if anything happened is not on the video.
The video shows Casseus running ahead of Kabuya-Ntumba towards the confrontation rather than Kabuya-Ntumba breaking free from his hold. But Casseus did have a grip on Kabuya-Ntumba and thinks he extended his arm and told him to "relax" or "chill". Casseus did not tap him to tell him to follow.
Casseus ran across the street from the confrontation, looking straight ahead. The shooting occurred behind him but he saw the exchange of gunfire.
Casseus saw Kabuya-Ntumba fall but thought he was intoxicated rather than injured from the shooting.
The video does not show Kabuya-Ntumba as the aggressor but "it was verbal".
Casseus attacked Maadani in prison for having killed his friend Kabuya-Ntumba but did not tell Maadani why he was attacking him. He may or may not have said something to him subsequently but does not remember.
He attacked Maadani even though he believed Maadani had been justified in shooting Kabuya-Ntumba and shot him by accident.
[19] In re-examination, Casseus testified that Kabuya-Ntumba drew his gun before Maadani; Kabuya-Ntumba said he wanted to kill Maadani before he drew his gun; and Kabuya-Ntumba fired his gun first. Casseus denied having any reason to lie in favour of Maadani.
The law clerk's evidence
[20] Trial counsel's law clerk, Kathryn Mongeau, has submitted an affidavit in which she outlines counsel's explanation for not obtaining the evidence of Casseus at trial. She asserts the following:
Trial counsel knew from Maadani that the person described in the Crown disclosure as an "unidentified black male" was Brightner Casseus. Trial counsel understood that Casseus was a friend or associate of Kabuya-Ntumba but Maadani could not provide contact information or leads for finding him.
Trial counsel did not have strong reason to believe that Casseus would be cooperative or provide helpful evidence given his friendship with Kabuya-Ntumba and non-association with Maadani.
Trial counsel understood that the police never attempted to interview Casseus because the Crown disclosure did not include a statement from him or indicate that he had been identified or spoken to by police.
Trial counsel did not subpoena Casseus at the preliminary inquiry or trial "because he had no reason to believe he could be located and no reason to believe that he would give helpful evidence even if located."
The test for admitting fresh evidence
[21] Fresh evidence may be received on appeal where the court considers it in the interests of justice to do so: Criminal Code, R.S.C. 1985, c. C-46, s. 683(1)(d). Plainly, it is not in the interests of justice to uphold a verdict that fresh evidence demonstrates is unreliable. But the interests of justice are not limited to the interests of the accused. The integrity of the judicial process and the importance of finality in judicial proceedings are competing considerations: R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 411. Thus, the admission of fresh evidence is not routine; it is exceptional: R. v. Allen, 2018 ONCA 498, 362 C.C.C. (3d) 509, at paras. 89-90.
[22] The principles governing the exercise of the court's discretion to admit fresh evidence are well established. The court follows the test set out in R. v. Palmer, [1980] 1 S.C.R. 759 and further developed in Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, which requires consideration of three criteria:
Admissibility – is the evidence admissible under the rules of evidence?
Cogency – could the evidence reasonably be expected to have affected the verdict?
Due diligence – does the explanation offered for the failure to adduce the evidence at trial affect its admissibility?
[23] The Crown does not contest the admissibility of the proposed fresh evidence from Casseus under the first criterion. Admission of this evidence therefore depends on the cogency and due diligence criteria.
[24] As I will explain, the proposed fresh evidence from Casseus is not sufficiently cogent to justify its admission. As a result, it is not necessary to consider the due diligence criterion, in support of which the affidavit from trial counsel's law clerk was proffered. The motion to admit the fresh evidence must be dismissed.
Casseus's evidence is not reasonably capable of belief
[25] The cogency criterion requires the court to make a qualitative assessment of the proposed fresh evidence. As set out in Truscott, at paras. 99-100, the evidence must be:
relevant to a decisive or potentially decisive issue at trial;
credible in that it is reasonably capable of belief; and
sufficiently probative, when taken with the other evidence adduced at trial, that it could reasonably be expected to have affected the result.
[26] It is not contested that the proposed evidence from Casseus is relevant to the appellant's self-defence claim. The question for the court is whether it is credible – whether it is reasonably capable of belief. That question does not turn on whether the court itself believes the proposed evidence: R. v. Winmill (1999), 42 O.R. (3d) 582 (C.A.), at p. 602. The court does not make the ultimate credibility or reliability findings about the proposed evidence. Nevertheless, in order to determine whether Casseus's evidence is reasonably capable of belief, the court must carefully evaluate the potential value of his evidence as well his credibility: R. v. Nnane, 2024 ONCA 841, 174 O.R. (3d) 241, at para. 32; R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 50.
[27] The appellant asserts that Casseus's affidavit is reasonably capable of belief: he was sober and in close proximity to Kabuya-Ntumba during the altercation and was not shown the video prior to swearing his affidavit. The passage of time means that his recollection is imperfect and sometimes inaccurate, but any inconsistencies are insufficient to make his evidence incapable of belief. The appellant argues that it makes little sense that Casseus would lie and there is no reason to suspect that he would fabricate his evidence, especially related to the order of the shots and Kabuya-Ntumba's role as primary aggressor. Casseus's adversity to the appellant and lack of motive to lie should outweigh any concerns about his credibility. His evidence runs directly counter to his interests and loyalties.
[28] I do not accept any of these submissions.
[29] Casseus is a young man with an extensive criminal record spanning many years and involving almost 30 offences. The offences include theft, breach of bail, obstruction of a police officer, carrying a concealed weapon, failure to comply with an undertaking, assault, assault with a weapon, use of an imitation firearm, forcible confinement, resisting arrest, possession of a prohibited firearm, and drug trafficking. Several of these offences involve dishonesty, including convictions for obstructing justice and for breaching court orders. Casseus is, at present, a fugitive from justice, facing extradition to Canada involving outstanding charges arising out of another shooting in Ottawa. He was cross-examined while in custody in England, awaiting prosecution in Wales on drug trafficking charges.
[30] To say the least, a fugitive from Canadian justice with an extensive criminal record is not a good witness on a fresh evidence application. Yet on the appellant's account, Casseus is a public-spirited citizen who has come forward in an attempt to help an innocent man. Indeed, the appellant says that Casseus proposes to give evidence to help him even though, as Casseus knows, he is responsible for the death of his friend.
[31] This submission is problematic. Start with Casseus's friendship with Kabuya-Ntumba. The first mention of it comes at the outset of Casseus's affidavit, in which he says he had known Kabuya-Ntumba for an indeterminate period of time – 3 to 5 years – and that "[w]e were not close friends but he was in my group." He then states that he attacked Maadani when they were incarcerated at the Ottawa-Carleton Detention Centre "for killing my friend". In cross-examination, Casseus says that he attacked Maadani for this reason but says he did not tell Maadani why he was attacking him, nor does he remember saying anything about his motivations during subsequent disputes with Maadani.
[32] Even assuming a strong friendship between Casseus and Kabuya-Ntumba, Casseus's attack on Maadani is odd given his present assertion that Maadani had acted in self-defence – something that he would have known at the time of the attack. But later in his evidence Casseus appears to alter the explanation for his attack on Maadani, referring to "neighbourhood conflicts" and "friction" in the institution.
[33] The best that can be said is that Casseus's motivations for coming forward to assist the appellant are unclear. But the court need not determine why he has come forward in order to determine the cogency of his proposed evidence. Regardless of what has motivated him to come forward, Casseus's credibility and reliability are so compromised that no jury could reasonably believe his proposed evidence.
[34] The events in question took place approximately four years before Casseus swore his affidavit. Casseus admits that his memory is not clear. Throughout his cross-examination he states: "I just can't remember", "I don't remember"; "I can't really remember"; and "I couldn't really remember". Casseus's proposed evidence is unreliable: at many points in his cross-examination he qualifies his answers after having stated what Kabuya-Ntumba told him, and in particular after he is forced to acknowledge that his affidavit evidence was inconsistent with the video.
[35] Casseus's evidence is rife with inconsistencies. Several aspects of his proposed evidence strain credulity, and some are clearly contradicted by the video evidence. These are not small matters as the appellant submits – imperfections or mere inaccuracies that can be overlooked. As the Crown points out, there are at least four major inconsistencies in Casseus's evidence. All of these inconsistencies appear to be attempts by Casseus to minimize his involvement while laying the blame for the fatal confrontation on the deceased.
[36] First, Casseus says that Kabuya-Ntumba told him earlier that evening that he wanted to shoot three men. He says that they chased the three men and that Kabuya-Ntumba pulled his gun during the chase. Casseus says he was concerned that there were police around and that he tried to calm Kabuya-Ntumba down. This is significant evidence, if true, as it validates the claim that Kabuya-Ntumba was aggressive and violent. However, the video shows that no such chase occurred and that Kabuya-Ntumba did not pull his gun. Casseus attempts to explain this inconsistency by saying that it was a short chase – just 20 or 30 steps – and he couldn't "really remember" whether Kabuya-Ntumba had his gun out. He admits he was mistaken about the three men running and Kabuya-Ntumba drawing his gun. However, he then testifies that the three men were "fast pacing", but again he is contradicted by the video, which shows the men walking away slowly.
[37] Second, Casseus says that Kabuya-Ntumba told him that he wanted to rob Maadani and that Kabuya-Ntumba then left to find Maadani. Casseus says he found Kabuya-Ntumba arguing with Maadani and got in between them. Again, the proposed fresh evidence is belied by the video, which clearly shows Kabuya-Ntumba leaving the bar with Casseus and two other men and walking away from Maadani's group. This continues until Casseus points at Maadani's group and Casseus and the other men cross the street toward them. Only then does Kabuya-Ntumba turn around to join them.
[38] Third, Casseus claims that he tried to pull Kabuya-Ntumba away moments before the shooting but that he broke free to run at Maadani, at which point Casseus began crossing the street to avoid the conflict. The video shows otherwise. Casseus did not physically restrain Kabuya-Ntumba. In fact, Casseus was the first to turn to face Maadani, and ran ahead of Kabuya-Ntumba towards Maadani in the seconds before the shooting. In short, and contrary to his proposed evidence, Casseus appears to have led Kabuya-Ntumba into the confrontation with Maadani's group that culminated in the shooting.
[39] Fourth, Casseus's evidence of the shooting itself is replete with problems. He insists he witnessed it despite independent evidence to the contrary. In his affidavit, he states that he looked back as he crossed the street and saw Kabuya-Ntumba shoot at Maadani. However, Casseus agreed in cross-examination that the video shows him running from the altercation and looking directly ahead, immediately prior to the muzzle flash seen when Kabuya-Ntumba fired his gun. He was also seen facing away from Kabuya-Ntumba immediately prior to the first of the four visible muzzle flashes from Maadani's gun. Under cross-examination, Casseus also changed his affidavit evidence – that Maadani had squeezed the trigger of his gun by accident – to say instead that Maadani was scared when he fired his gun.
[40] Again, these are not small matters. They are inconsistencies that, coupled with Casseus's extensive criminal record, so undermine his credibility as to render his proposed evidence all but worthless. No trier of fact could accept it. It is not reasonably capable of belief.
[41] It is not necessary to go further. The cogency criteria are conjunctive. Failure at the credibility stage means that the proposed fresh evidence does not satisfy the cogency requirement: Palmer, at p. 776.
[42] I conclude that the interests of justice would not be served by admitting the proposed fresh evidence and ordering a new trial. On the contrary, the interests of justice would be undermined by requiring the Crown to retry the appellant more than six years after the events in question on the basis of the proposed fresh evidence. The motion must be dismissed.
THE CONVICTION APPEAL
[43] Although the focus of the appellant's submissions was on the fresh evidence motion, he also advances two arguments on his appeal from conviction. Both are directed at the jury charge. The appellant argues that the trial judge erred in her instructions to the jury on self-defence and post-offence conduct.
[44] I reject these arguments for the reasons that follow.
The trial judge properly instructed the jury on self-defence
[45] The appellant argues that the trial judge erred in her instructions on s. 34(1) of the Criminal Code by inviting the jury to consider the entire incident throughout the self-defence analysis. The first two elements in ss. 34(1)(a) and (b), catalyst and motive, are confined to the allegedly defensive act itself. The jury had to assess the appellant's state of mind when he shot Kabuya-Ntumba, not throughout the incident, and the judge failed to communicate this crucial point to the jury. The appellant acknowledges that the earlier events were relevant context, but the jury needed to be directed to ground their conclusion on what the appellant actually perceived at the decisive moment.
[46] The starting point in considering the appellant's arguments is a reminder that the court's job is to take a functional approach to the review of jury instructions for legal error. The Supreme Court has emphasized this on several occasions, most recently in R. v. Lozada, 2024 SCC 18, 436 C.C.C. (3d) 76, at para. 14, and R. v. Abdullahi, 2023 SCC 19, 428 C.C.C. (3d) 1, at paras. 4, 35-37. The jury must be instructed properly, not perfectly, and whether the jury has been instructed properly must be answered by reading the instructions as a whole. The ultimate question is whether the jury was equipped to decide the case according to the law and evidence. If it was, then the jury was properly instructed. See e.g., R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 2, 62; R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; and R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 126.
[47] The appellant's argument is, in essence, that the trial judge did not compartmentalize the three requirements under s. 34(1) and instead allowed considerations relevant to the incident to bleed into the jury's analysis of the appellant's reasonable belief and purpose. The trial judge's error is one of omission: she did not explain to the jury that the focus had to be on the appellant's state of mind at the precise moment when he shot Kabuya-Ntumba, rather than throughout the incident.
[48] I do not agree. Read as a whole, the trial judge's instructions provided the jury with all that it required to reach a verdict in this case.
[49] The jury would not have been confused by the trial judge's instructions. I agree with the Crown's submission that it was implicit and explicit in the trial judge's instructions that reasonable belief and purpose were to be determined at the time the appellant shot Kabuya-Ntumba. Throughout the instructions, the trial judge linked the questions the jury was required to answer concerning catalyst and purpose to the time when the appellant fired the shots at Kabuya-Ntumba.
[50] The events surrounding the shooting happened quickly – all within a span of approximately two minutes. The time from Kabuya-Ntumba running towards the appellant to the end of the shooting was about seven seconds. The trial judge instructed the jury as follows:
Given the fluidity of the situation, you may wish to consider when you find the force or threat of force to which Mr. Maadani responded, crystallized. To make this determination, you will need to look at the entire sequence of events as well as Mr. Maadani's movements, gestures, and actions.
[51] When the threat of force "crystallized" was not a moment that could be considered in isolation, and the trial judge made clear that it was for the jury to determine when it crystallized for the appellant. I am satisfied that the jury would have understood its task.
The trial judge properly instructed the jury on post-offence conduct
[52] The appellant argues that the trial judge erred in inviting the jury to consider the appellant's post-offence conduct – his flight to Montreal and false statements about the source of his injuries – as being relevant to the issue of self-defence. The appellant argues that he would have behaved in the same way regardless of whether he had shot Kabuya-Ntumba in self-defence: his post-offence conduct was equally consistent with awareness of the legal consequences of the serious weapons offence to which he later pleaded guilty. As a result, the post-offence conduct evidence had no probative value to the live question of self-defence and should not have been admitted. Even if the trial judge did not err in leaving the post-offence conduct with the jury, she should have told the jury that the appellant's guilty plea on the firearm charge presented an alternative explanation for the appellant's purported consciousness of guilt.
[53] There is no merit to this submission. Although there was a second possible explanation for the appellant's actions, it was for the jury to decide whether to draw the inference that the appellant had fled because he knew he had not shot Kabuya-Ntumba in self-defence. The trial judge carefully instructed the jury to consider the post-offence conduct only on the issue of self-defence, and only if the jury rejected any other reasonable explanation:
[Y]ou must not infer Moadd Maadani's guilt from this evidence unless, when you consider it along with all the other evidence, you are satisfied that it is consistent with his guilt and is inconsistent with any other reasonable conclusion.
[54] The trial judge added that people sometimes flee or lie for entirely innocent reasons, and that even if Maadani were motivated by a feeling of guilt, that feeling might be attributable to something other than involvement in the offence of second degree murder. She specifically instructed the jury that the post-offence conduct was not relevant to either intent or provocation. Nothing more was required.
THE SENTENCE APPEAL
The sentence is not demonstrably unfit
[55] The appellant was sentenced to life imprisonment with no possibility of parole for 14 years. He argued before the trial judge that 12-15 years was the fit period of parole ineligibility and asked that a 12-year period be imposed. On appeal, he submits that 14 years is demonstrably unfit. Despite his submissions before the trial judge, he now argues that a 10-year period of parole ineligibility should be imposed.
[56] The appellant asserts that the trial judge failed to consider the circumstances surrounding the offence and asserts that the case law "demonstrates that a 14-year period of parole ineligibility is reserved for offences that fall further along the 'continuum of seriousness' than the Appellant's actions in this case." The appellant submits that this was a "close case, one that teetered on the edge of self-defence."
[57] There is no merit to these arguments.
[58] The aggravating factors in this case were considerable. The appellant armed himself with a gun long before his confrontation with Kabuya-Ntumba occurred. He fired his gun several times on a crowded downtown Ottawa street in the knowledge that the police were close by. As the trial judge stated, this was brazen conduct that "demonstrated a callous disregard for the potential for more victims."
[59] The trial judge considered the jury's sentencing recommendations and found them inadequate for purposes of denunciation and deterrence. This was the trial judge's call to make and there is no basis to interfere with it. A 14-year period of parole ineligibility cannot be said to be disproportionate to the gravity of the offence and the degree of responsibility of the offender. I appreciate that there are cases involving worse circumstances of violence and cruelty, including from this jurisdiction, that have resulted in lower sentences. Whatever else might be said of these decisions, they do not support an argument that the appellant's sentence is demonstrably unfit. A more apt comparison is R. v. Sinclair, 2017 ONCA 38, 345 C.C.C. (3d) 1, at para. 156, in which this court upheld a 14-year period of parole ineligibility in the context of a shootout in public.
[60] I do not accept that this case "falls on the lower end of the continuum of blameworthiness", as the appellant submits, and I specifically reject the suggestion that the appellant should have received a shorter sentence because his was a close case that "teetered on the edge of self-defence". The appellant's self-defence argument was rejected by the jury. He stands convicted of second degree murder and was sentenced accordingly.
DISPOSITION
[61] I would dismiss the motion to introduce fresh evidence and would dismiss the conviction appeal. I would grant leave to appeal from sentence but would dismiss the sentence appeal.
Addendum
[62] The appellant's failure to establish that the proposed fresh evidence is not reasonably capable of belief means that it was not necessary to decide whether it could reasonably be expected to have affected the result at trial. Failure on the credibility question also renders it unnecessary to consider the due diligence criterion: whether the explanation offered for the failure to adduce Casseus' evidence at trial affects its admissibility. I write briefly to address these issues and to emphasize the importance of finality.
Reasonable Capability of Belief
[63] Disagreement about the credibility of the proposed fresh evidence lies at the core of my disagreement with my colleague on whether a new trial is required. In my view, Casseus is an unsavoury witness whose proposed evidence is inconsistent with much of the evidence at trial. The most that can be said in favour of his evidence is that he has no known motive to lie.
[64] I accept that a trier of fact might accept some of his evidence despite its many shortcomings. But the "reasonably capable of belief" standard requires more than a mere possibility that a credulous trier of fact might accept the fresh evidence. If that were the standard for credibility, new trials would be routine. And that would be unacceptable. It would violate the principle of finality, long understood as essential to the integrity of the criminal justice system: R. v. M. (P.S.), at p. 411; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 19; R. v. Bharwani, 2025 SCC 26, at para. 112.
[65] Once a verdict has been entered, the principle of finality weighs against disturbing it, absent legal error. The admission of fresh evidence on appeal is exceptional. Appellate courts must engage in more than minimal scrutiny of fresh evidence, even if, as my colleague rightly says, it is not their role to determine its ultimate credibility or reliability. The evidence must be examined for markers of negative credibility or reliability – markers like an extensive criminal record, a poor memory, and testimony inconsistent with the trial record, all of which are present in this case, and all of which combine to render the evidence not reasonably capable of belief.
[66] The existence of some potential probative value in the proposed fresh evidence does not suffice to warrant its reception on appeal, as Watt J.A. pointed out in R. v. Allen, at para. 108. That is so even though it would obviously be enough to warrant its admission at first instance.
Capacity to Affect the Result
[67] Having concluded that Casseus's evidence is reasonably capable of belief, my colleague goes on to conclude that it could reasonably be expected to have affected the verdict for two reasons. First, the jury might have believed Casseus's evidence about who shot first or been left with a reasonable doubt on that question. Second, the jury might have believed his evidence about Kabuya-Ntumba's earlier expressions of aggression toward the appellant.
[68] The question of who shot first was clearly an important issue at trial. The appellant could have testified that Kabuya-Ntumba shot first, but chose not to do so. He now seeks a new trial based on Casseus' evidence, which is marred by inconsistencies about whether or the extent to which it was possible for him to have seen the shots. With respect, my colleague's assertion that Casseus "was in a position to observe what he says he observed" overstates the evidence. There was evidence that Kabuya-Ntumba was the aggressor, but even if the jury were to have found that he shot first, I do not accept that the proposed fresh evidence could reasonably be expected to have affected the verdict.
[69] The appellant fired several shots into the victim, one of which went into his back as he lay on the ground. Casseus' proposed evidence as to who the aggressor was is not determinative of the reasonableness of the appellant's response, and in any event Casseus did not see all of the shots.
Due Diligence
[70] Finally, I do not accept that the appellant pursued the evidence with due diligence. The appellant knew who Casseus was and knew that he was present at the shooting. He chose not to pursue his testimony because he assumed that it would not help him. The reasonableness of that assumption in retrospect is irrelevant. The appellant made his choice, and whether or not it is fairly described as a tactical choice he is stuck with it.
[71] In summary, not only is the proposed fresh evidence not reasonably capable of belief, it would not have affected the outcome and was not proffered with due diligence. It is not in the interests of justice to admit it.
Grant Huscroft J.A.
I agree. K. van Rensburg J.A.
Copeland J.A. (Dissenting)
[72] I have had the benefit of reading my colleague Huscroft J.A.'s thoughtful reasons. I agree with his analysis of the grounds alleging error in the jury instructions on self-defence and after the fact conduct, as well as his conclusion that those instructions are error-free. However, I part company with his analysis of the fresh evidence application.
[73] In my view, the proposed fresh evidence of Brightner Casseus meets the criteria for admissibility and requires a new trial. I have considered the proposed fresh evidence in the context of the trial record, the live issues at trial, and the challenges raised by the Crown to its credibility and reliability. While I accept that there are challenges to the credibility and reliability of Mr. Casseus' evidence, in my view, his evidence is reasonably capable of belief by a trier of fact on the central issues of whether Mr. Kabuya-Ntumba expressed aggression towards Mr. Maadani prior to the altercation and who fired the first shot. The explanation for why Mr. Casseus was not called as a witness at trial is sufficient to meet the due diligence branch of the analysis in the context of the materiality and cogency of the evidence of Mr. Casseus. It is in the interests of justice to admit the fresh evidence. I would accordingly admit it, set aside the conviction for second-degree murder, and order a new trial on that count.
[74] The summary of Mr. Casseus' evidence provided by my colleague provides sufficient context for the fresh evidence admissibility analysis.
A. The test for admissibility of fresh evidence
[75] Section 683 of the Criminal Code permits an appellate court to admit on appeal the evidence of any witness. The ultimate standard against which the admissibility of fresh evidence on appeal is assessed is the interests of justice. The inquiry into whether it is in the interests of justice to admit fresh evidence in a particular appeal is structured by the now three-part analysis of (i) admissibility; (ii) cogency; and (iii) the explanation offered for the failure to adduce the evidence at trial (also referred to as the due diligence criterion): R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775; Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at paras. 90-102; R. v. Manasseri, 2016 ONCA 703, 344 C.C.C. (3d) 281, at paras. 198-225.
[76] The fresh evidence admissibility criteria seek to strike a balance between two important interests in the criminal justice system – just results, in the sense of trials being determined on the basis of the available evidence and producing reliable verdicts, and finality: Manasseri, at paras. 200-1; R. v. P.G., 2013 ONCA 520, 301 C.C.C. (3d) 81, at para. 40.
[77] While the test for admissibility of fresh evidence is well-settled, the balance that the admissibility analysis seeks to strike between just and reliable verdicts and finality is susceptible to different emphasis in the weighing of these sometimes difficult to reconcile interests.
[78] My difference with my colleague turns primarily on the application of the cogency criterion, and in particular, the requirement that the proposed fresh evidence be credible in the sense of being reasonably capable of belief. In my analysis below of the cogency of the proposed fresh evidence in this appeal, I discuss in more detail the law in relation to that requirement for admissibility. There is also a live issue in this appeal regarding the explanation for the failure to tender Mr. Casseus' evidence at trial. In my analysis of whether the explanation for the failure to adduce Mr. Casseus' evidence at trial should affect the admissibility of the proposed fresh evidence, I discuss in more detail the law in relation to the due diligence branch of the admissibility analysis and how it interacts with the other branches of the analysis.
B. Application of the admissibility analysis to the evidence of Mr. Casseus
(1) The admissibility criterion
[79] As my colleague notes, the Crown does not dispute that the evidence of Mr. Casseus meets the admissibility criterion. It is relevant to a material issue at trial – Mr. Maadani's claim of self-defence. Mr. Casseus is able to provide direct evidence based on his own observations of the events prior to and during the altercation that bears on the central issue of self-defence. The content of his evidence is not covered by any exclusionary rule.
(2) The cogency criterion
[80] The cogency analysis involves three inquiries: (i) is the evidence relevant, in that it bears on a decisive or potentially decisive issue at trial? (ii) is the evidence credible, in the sense that it is reasonably capable of belief? (iii) is the evidence sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result? See Manasseri, at para. 205; Truscott, at para. 99.
[81] My colleague accepts that Mr. Casseus' evidence bears on a potentially decisive issue at trial and therefore meets the first branch of the cogency analysis. However, he concludes that the evidence fails to meet the second branch of being reasonably capable of belief. In his addendum, my colleague also concludes that Mr. Casseus' evidence could not reasonably be expected to have affected the verdict.
[82] For reasons I explain below, I conclude that the evidence of Mr. Casseus satisfies all three branches of the cogency analysis.
(i) Relevance to a potentially decisive issue at trial
[83] I agree with my colleague that Mr. Casseus' evidence is relevant in that it bears upon a potentially decisive issue at trial. It has relevance to all three branches of the self-defence analysis.
(ii) Whether the evidence is reasonably capable of belief
[84] I disagree with my colleague's assessment of whether the evidence of Mr. Casseus meets the credibility threshold of being reasonably capable of belief by a trier of fact.
[85] The assessment of whether proposed fresh evidence is reasonably capable of belief is a form of credibility assessment. However, in considering the admissibility of fresh evidence, it is not this court's role to determine the ultimate credibility and/or reliability of the proposed fresh evidence. Rather, this court must consider whether the evidence could reasonably be believed by a trier of fact in the context of the trial evidence: R. v. Smithen-Davis, 2022 ONCA 832, 421 C.C.C. (3d) 56, at paras. 40-41; R. v. Winmill (1999), 42 O.R. (3d) 582 (C.A.), at p. 602; R. v. Dudar, 2019 ONCA 115, 371 C.C.C. (3d) 323, at para. 33; P.G., at paras. 47, 52, 54, 55; R. v. Allen, 2018 ONCA 498, 362 C.C.C. (3d) 509, at para. 108.
[86] The characterization of the credibility assessment as whether the evidence is "reasonably capable of belief" recognizes the different roles of an appellate court and the trier of fact at trial. If the evidence is reasonably capable of belief and meets the other requirements for admissibility as fresh evidence – in particular that it could reasonably be expected to affect the result – it is for a trier of fact to make the ultimate assessment of the credibility and reliability of the fresh evidence: R. v. Babinski (1999), 44 O.R. (3d) 695 (C.A.), at p. 717.
[87] As context for my analysis of whether Mr. Casseus' evidence is reasonably capable of belief, I underline the material aspects of his evidence. I do not understand this to be an area of disagreement with my colleague. First, Mr. Casseus provides evidence that Mr. Kabuya-Ntumba expressed aggression towards the appellant in the time leading up to the shooting. Second, Mr. Casseus testified that he observed Mr. Kabuya-Ntumba fire first. If a trier of fact were to believe or be left in a reasonable doubt by Mr. Casseus' evidence on either of these material issues, it could reasonably be expected to affect the jury's assessment of the appellant's self-defence claim and thus affect the verdict.
[88] It is important to bear in mind these two material aspects of Mr. Casseus' evidence in the admissibility inquiry. All of Mr. Casseus' evidence must be considered, in the context of the trial evidence, in assessing whether his evidence is reasonably capable of belief. But the focus of the admissibility inquiry must be on whether a trier of fact could reasonably believe the material aspects of Mr. Casseus' evidence. A trier of fact may believe some, none, or all of the evidence of any witness. While I accept that there are inconsistencies between Mr. Casseus' evidence and the video evidence at trial, there are also significant aspects of Mr. Casseus' evidence that are confirmed by the video evidence. A trier of fact could reasonably find that the inconsistencies are of the sequencing of events in the context of a witness giving his account four years after the fact (and five years at the time of the cross-examination) and still believe or be left in a reasonable doubt by one or both of the material aspects of his evidence.
[89] The Crown argues that Mr. Casseus' evidence is not reasonably capable of belief for four reasons. First, it is materially inconsistent with other evidence at trial, in particular, the video evidence. Second, Mr. Casseus' explanations for the inconsistencies between his evidence and the video defy logic and common sense. Third, Mr. Casseus' evidence also demonstrates he has a poor memory of events. Finally, Mr. Casseus' lengthy criminal record, including crimes of dishonesty, and his present status as a fugitive from justice awaiting extradition back to Canada further undermine his credibility.
[90] My colleague largely accepts the Crown's submissions and concludes that Mr. Casseus' evidence is not reasonably capable of belief based on four factors: (i) his criminal record and his flight from Canada to avoid facing criminal charges; (ii) Mr. Casseus' unclear motive for coming forward as a witness; (iii) the poor quality of his memory; and (iv) inconsistencies between Mr. Casseus' evidence and the video evidence.
[91] I accept that there are challenges to the credibility and reliability of Mr. Casseus' evidence when it is considered in the context of the trial evidence, but I am satisfied that it is reasonably capable of belief by a trier of fact on the central material issues of whether Mr. Kabuya-Ntumba expressed aggression towards the appellant prior to the shooting and who fired first.
[92] I explain my conclusion that Mr. Casseus' evidence is reasonably capable of belief with six points. I begin with the context of Mr. Casseus' evidence and address the concerns raised by the Crown and my colleague in the course of my analysis.
[93] First, there is no dispute that Mr. Casseus was present at the scene and able to observe the events he describes. The video evidence shows Mr. Casseus with Mr. Kabuya-Ntumba before and during the initial physical altercation, as well as at the time of the shooting. There can be no question that he was in a position to observe the events he describes.
[94] Second, there is cogent evidence that he was an associate of Mr. Kabuya-Ntumba. Mr. Casseus gave evidence that at the time of the shooting he had known Mr. Kabuya-Ntumba for three to five years. They lived in the same neighbourhood. They were not close friends but were in the same group. Their association is confirmed by the video evidence showing them together prior to and at the time of the shooting.
[95] By contrast, Mr. Casseus was not friends with the appellant. He did not know him personally. He learned from others that the appellant lived in the same neighbourhood as him at some point, but he never saw the appellant in the neighbourhood. Mr. Casseus learned who the appellant was because the appellant shot Mr. Kabuya-Ntumba.
[96] Mr. Casseus' association with Mr. Kabuya-Ntumba and lack of any association with the appellant are important in assessing his credibility. There is no evidence that he has a motive to fabricate in favour of the appellant.
[97] My colleague casts doubt on Mr. Casseus' motives for coming forward as a witness, describing his motives as, at best, "unclear". I disagree both with the factual basis on which my colleague casts doubt on Mr. Casseus' motives for coming forward and with the legal impact of the absence of evidence of a motive on the part of Mr. Casseus to fabricate in favour of the appellant.
[98] My colleague doubts Mr. Casseus' explanation for coming forward – that he knew that Mr. Kabuya-Ntumba fired first and felt he should come forward because the appellant should not be convicted of murder when he acted in self-defence. My colleague finds this explanation to be inconsistent with Mr. Casseus' assault on the appellant when they were in the same detention centre in 2019, which Mr. Casseus says was motivated by the fact that the appellant killed his friend, Mr. Kabuya-Ntumba.
[99] Respectfully, I do not see the jailhouse attack four years prior as inconsistent with Mr. Casseus' decision to come forward as a witness and the reasons he provides for doing so.
[100] More significantly, my colleague's description of Mr. Casseus' motive to come forward as a witness as "unclear" obscures the fact that there is no evidence of a motive on the part of Mr. Casseus to favour the appellant in his evidence. This fact has legal significance to the assessment of Mr. Casseus' credibility. Absence of evidence of a motive to lie is a common-sense factor that suggests a witness may be more truthful because they do not have a reason to lie: R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 4; R. v. Polemidiotis, 2024 ONCA 905, 174 O.R. (3d) 359, at para. 59.
[101] I am, of course, cautious with this factor. People's motives sometimes remain hidden. Absence of evidence of a motive to fabricate is also not determinative, but one factor that can be considered in the assessment of credibility: Gerrard, at para. 4; Polemidiotis, at paras. 59-62. But the case law is clear that the absence of evidence of a motive to fabricate is a factor that can be given weight in the assessment of the credibility of a witness. The fact that Mr. Casseus has no apparent motive to favour the appellant is entitled to weight in assessing the cogency of his evidence.
[102] Third, while I accept that Mr. Casseus' criminal record and flight from justice in Canada are relevant considerations in assessing his credibility, I am not persuaded that these factors render his evidence not reasonably capable of belief.
[103] The parties to a criminal trial do not get to choose the observers – and thus potential witnesses – of an alleged crime. Witnesses with criminal records, sometimes lengthy, are commonplace in criminal trials because, frequently, alleged criminal acts occur in a milieu where the people present have a criminal history. The Crown regularly relies on witnesses with lengthy criminal records and makes the submission to trial judges and juries that the Crown does not get to choose its witnesses, and that, while a witness' criminal record is a relevant factor in assessing their credibility, the trier of fact should nonetheless believe a particular witness with a criminal record because their evidence is credible in the context of the trial evidence. The same is true when a defendant – in this case an appellant – seeks to rely on the evidence of a witness with a criminal record.
[104] Respectfully, the fact of Mr. Casseus' criminal record and his flight from justice in Canada does not prevent his evidence from being reasonably capable of belief.
[105] Fourth, my colleague relies on Mr. Casseus responding to questions during his cross-examination with answers to the effect of "I don't remember" as showing that Mr. Casseus' memory is poor and therefore unreliable.
[106] Mr. Casseus provided the affidavit that is the basis for the fresh evidence application four years after the events. He was cross-examined five years after the events. Some lack of memory of details is understandable. The quality of a witness' memory is appropriately a factor in assessing the reliability and credibility of the witness' evidence. But concerns about memory must be assessed taking into account whether the gaps in memory are on central issues or questions of detail. While it is true there are numerous points at which Mr. Casseus does not remember particular details, I am not persuaded that his memory issues rise to the level of rendering his evidence not reasonably capable of belief on the material aspects of his evidence.
[107] This brings me to the fifth point, the Crown's argument that there are inconsistencies in Mr. Casseus' evidence when compared to the video evidence such that they render his evidence not reasonably capable of belief. I accept that there are inconsistencies between Mr. Casseus' account and the video evidence. Indeed, Mr. Casseus accepted in cross-examination that various inconsistencies existed and provided explanations for them. On my review of his evidence in the context of the trial evidence, there is also significant confirmation of Mr. Casseus' evidence from the video evidence.
[108] In my view, the inconsistencies are not so significant, in light of Mr. Casseus' explanations and aspects of the video evidence that provide support for those explanations, as to render his evidence not reasonably capable of belief. In particular, it would be open to a trier of fact to find that the inconsistencies are issues of memory and to still believe or be left in a reasonable doubt by Mr. Casseus' evidence that Mr. Kabuya-Ntumba expressed aggression towards the appellant prior to the shooting and that Mr. Kabuya-Ntumba fired first.
[109] I will not enumerate every consistency and inconsistency between Mr. Casseus' evidence and the video evidence. But I address the four areas of inconsistency relied on by the Crown and addressed by my colleague.
[110] In my view, the first three areas contain elements of both inconsistency and consistency:
Mr. Casseus' evidence about the earlier unrelated dispute with three men is inconsistent with the video to the extent he describes Mr. Kabuya-Ntumba chasing the men while holding the firearm. However, the video does support, within the limits of its lack of audio, Mr. Casseus' evidence that he and Mr. Kabuya-Ntumba were involved in an earlier unrelated dispute with three men.
There are inconsistencies between the video evidence and Mr. Casseus' evidence about the start of the altercation between his and Mr. Kabuya-Ntumba's group and the appellant's group. However, the portion of his account of being separated from Mr. Kabuya-Ntumba after they left the bar, speaking to two women on the sidewalk, and then going to find Mr. Kabuya-Ntumba is supported by an earlier sequence in the video evidence. The video evidence also shows Mr. Casseus putting himself between Mr. Kabuya-Ntumba and the appellant during the physical altercation that preceded the shooting, which is consistent with his account.
There is inconsistency between the video evidence and Mr. Casseus' evidence that immediately before the shooting he was holding Mr. Kabuya-Ntumba back. However, the video evidence shows that seconds before the shooting, members of Mr. Kabuya-Ntumba's group are trying to hold Mr. Kabuya-Ntumba back and Mr. Casseus has his arm stretched out and back towards Mr. Kabuya-Ntumba as if to support that effort.
[111] The mix of consistency and inconsistency could reasonably lead a trier of fact to find that the inconsistencies are memory issues related to giving an account years after the fact, but that they do not undermine the material aspects of his evidence, which one would expect would be more memorable.
[112] On the fourth inconsistency relied on by the Crown, the position of Mr. Casseus when Mr. Kabuya-Ntumba fired, I do not agree with my colleague's conclusion that the video evidence is inconsistent with Mr. Casseus having been able to see who fired the first shot. I do not view the video evidence as clearly showing that Mr. Casseus was not looking towards Mr. Kabuya-Ntumba at the time of the muzzle flash of his gun and could not have seen the shot. I note as well that Mr. Casseus testified that he both saw and heard the first shot come from Mr. Kabuya-Ntumba. The cross-examination of Mr. Casseus on this issue was based on a frame by frame breakdown of the video evidence of events – events which happened in seconds. In my view, the focus on the frame by frame analysis – with approximately 20 frames per second of real time – runs the risk of distorting what was observable by Mr. Casseus in real time.
[113] The fact that there are aspects of the video evidence that are confirmatory of significant aspects of Mr. Casseus' account is important in assessing his credibility because he was not shown the video evidence from the trial prior to providing his fresh evidence affidavit. He was only shown two still photos from the videos for the purpose of identifying himself. He was first shown portions of the video in cross-examination by Crown counsel. Thus, there can be no suggestion that he was able to tailor his evidence for consistency with the video evidence.
[114] My point is not that there are no inconsistencies between Mr. Casseus' evidence and the video evidence. There are. A trier of fact faced with inconsistencies between a witness' evidence and other evidence, or within a witness' evidence, must consider the relative significance of the inconsistencies and the explanation given by the witness for the inconsistencies. In the context of Mr. Casseus' overall account of events and his explanation for the inconsistencies, I find that despite the inconsistencies, his evidence is reasonably capable of belief.
[115] The final point I note before concluding on the issue of cogency is that Mr. Casseus is not a recanting witness. This court has observed that recanting witnesses pose special concerns in the fresh evidence admissibility analysis such that fresh evidence of a recanting witness requires a higher showing of cogency in order to be admitted on appeal: Babinski, at p. 720; Allen, at para. 99.
[116] In the foregoing analysis, for reasons of clarity, I have addressed individually each of the issues which bear on Mr. Casseus' credibility. But I recognize that their cumulative effect must be considered in assessing whether his evidence is reasonably capable of belief. This court's task is to decide if a trier of fact could reasonably believe Mr. Casseus' evidence. My conclusion is that they could. The video confirms Mr. Casseus was with Mr. Kabuya-Ntumba prior to the altercation, during the physical altercation, and at the time of the shooting. He was in a position to observe what he says he observed. There is no evidence that he has a motive to tailor his evidence in favour of the appellant. Aspects of his account are confirmed by the video evidence at trial. While there are also inconsistencies between his account and the video evidence, on balance, his evidence is reasonably capable of belief by a trier of fact on the material aspects of his evidence of Mr. Kabuya-Ntumba's expressions of aggression towards the appellant prior to the shooting and who fired first.
(iii) Whether the probative value is such that the fresh evidence could be expected to have affected the result at trial
[117] Mr. Casseus' evidence is sufficiently probative that it could reasonably be expected to have affected the result at trial. As I have outlined above, I conclude that his evidence is reasonably capable of belief. If a trier of fact were to accept or be left with a reasonable doubt by Mr. Casseus' evidence about Mr. Kabuya-Ntumba's expressions of aggression towards the appellant and/or that Mr. Kabuya-Ntumba fired first, that evidence is reasonably capable of affecting the outcome of the self-defence analysis.
[118] Importantly, while the video evidence at trial was unquestionably significant in terms of assessing the events of the shooting, what it showed as to who fired first was vigorously contested at trial. Further, the video evidence could not display the verbal expressions of aggression on the part of Mr. Kabuya-Ntumba about which Mr. Casseus provides evidence.
[119] The forensic evidence of bullet casings found at the scene supported that five bullets were fired from the appellant's gun and one from Mr. Kabuya-Ntumba's gun. On the video evidence, only four muzzle flashes were visible from the appellant's gun and one from Mr. Kabuya-Ntumba's gun. The visible muzzle flash from Mr. Kabuya-Ntumba's gun was before the four visible muzzle flashes from the appellant's gun, but it occurred as Mr. Kabuya-Ntumba was in the process of falling to the ground.
[120] The Crown contended that the first shot fired by the appellant was fired when his arm was obscured in the video by a pay parking terminal, and for that reason no muzzle flash was visible. On the Crown's theory, this shot was fired before the visible muzzle flash from Mr. Kabuya-Ntumba's gun. On the Crown's theory, the visible muzzle flashes from the appellant's gun were shots two to five from his gun.
[121] The appellant's position was that the video showed Mr. Kabuya-Ntumba shoot first (the one visible muzzle flash from Mr. Kabuya-Ntumba's gun) and that the first of the four visible muzzle shots from the appellant's own gun was his first shot. Thus, on the defence theory, the visible muzzle flashes from the appellant's gun were shots one to four of the five shots fired by the appellant, and the fifth shot was not visible on the video evidence.
[122] Given the limits of the video evidence, Mr. Casseus' evidence, if believed or leaving the trier of fact with a reasonable doubt about who shot first and/or about Mr. Kabuya-Ntumba's expressions of aggression towards the appellant prior to the shooting, could reasonably have caused the jury to reach a different conclusion on the appellant's claim of self-defence. Both aspects of Mr. Casseus' evidence bear materially on the issue of who shot first. The evidence that Mr. Kabuya-Ntumba fired first is direct evidence on this issue. The evidence that Mr. Kabuya-Ntumba expressed aggression towards the appellant earlier in the evening – evidence of animus – is circumstantial evidence that could be accepted by a trier of fact as making it more probable that Mr. Kabuya-Ntumba fired first.
[123] The Crown argues on appeal that Mr. Casseus' evidence could not reasonably have affected the result at trial because the question of who fired first was not determinative of the appellant's self-defence claim. The Crown argues, and argued at trial, that even if Mr. Kabuya-Ntumba fired first, that may have justified one shot in return by the appellant, but the appellant fired four more shots at Mr. Kabuya-Ntumba, on the Crown's theory, while Mr. Kabuya-Ntumba was on the ground and no longer a threat.
[124] I accept the Crown's argument that the question of who fired first was not determinative of the appellant's self-defence claim. However, if a trier of fact were to believe or be left in a reasonable doubt by Mr. Casseus' evidence that Mr. Kabuya-Ntumba fired first, that fact would be of such central importance to the third branch of the self-defence analysis – reasonableness of the appellant's response – that it could reasonably be expected to affect the verdict. Further, the forensic evidence regarding the position of Mr. Kabuya-Ntumba's body when the shots were fired is not as clearcut as the Crown's argument suggests.
[125] If a trier of fact accepted or was left in a reasonable doubt by Mr. Casseus' evidence that Mr. Kabuya-Ntumba fired first, it would likely follow that the trier of fact would have a reasonable doubt on the first two branches of self-defence, the catalyst and the motive. This would leave the third branch of the self-defence analysis, whether the defensive force used by the appellant (firing five shots) was reasonable in the circumstances.
[126] As noted, I accept that if the trier of fact were to accept or have a reasonable doubt that Mr. Kabuya-Ntumba fired first, that would not be determinative of whether the appellant's actions in response were reasonable. But neither is the fact that the appellant fired five shots determinative that he could not have acted in self-defence.
[127] The 2012 amendments to the Criminal Code self-defence provisions do not undermine the long-established principle that an accused who claims self-defence is not required to "weigh to a nicety" the amount of force used in response to an aggressor: R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), at p. 111; R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 7; R. v. McPhee, 2018 ONCA 1016, 368 C.C.C. (3d) 293, at para. 24. This, of course, does not mean that any amount of defensive force can be justified. But it means that the reasonableness of defensive force used must be considered in the context of all of the circumstances: Criminal Code, s. 34(2); Khill, at paras. 62-70.
[128] In this case, the events of the shooting happened very quickly. The time from the first gunshot to the last was in the range of 4 to 5 seconds (I use a range to account for the dispute as to who fired first, which a trier of fact would have to determine). If, based on Mr. Casseus' evidence in the context of the trial evidence, the trier of fact were to accept or have a reasonable doubt that Mr. Kabuya-Ntumba fired first, it could reasonably have affected the jury's verdict in the sense that it was open to the jury to accept or to be left with a reasonable doubt that the appellant firing five shots in response was reasonable responsive force, given the very short time in which the shooting unfolded and the fact that there is no dispute that Mr. Kabuya-Ntumba was also armed with a firearm and fired one shot at the appellant.
[129] Contrary to the Crown's submission, the forensic evidence of the paths of the bullet wounds was open to different interpretations as to the position of Mr. Kabuya-Ntumba's body when the bullets entered. In particular, the path of the bullet to the chest that caused the fatal wound was consistent with Mr. Kabuya-Ntumba being shot while running towards Mr. Maadani with his chest bent forward at the waist or with Mr. Kabuya-Ntumba being on the ground with his chest partially upright.
[130] In sum, I am satisfied that if the evidence of Mr. Casseus about who shot first was believed or left the trier of fact with a reasonable doubt on the issues of who shot first and/or Mr. Kabuya-Ntumba's earlier expressions of aggression towards the appellant, it could reasonably be expected to affect the verdict. It thus meets all three criteria of the cogency branch of the fresh evidence analysis.
(3) The explanation for the failure to adduce Mr. Casseus' evidence at trial and its impact on the admissibility analysis
[131] I accept that there are issues of due diligence that must be weighed in this case. But in my view, although scrutiny of the explanation offered for the failure to adduce this evidence at trial is entitled to some weight, given the cogency of Mr. Casseus' evidence on the central issue at trial of the appellant's self-defence claim, trial counsel's failure to pursue locating Mr. Casseus should not lead to the rejection of the fresh evidence.
[132] In Palmer, this criterion was framed as the principle that fresh evidence "should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases": Palmer, at p. 775. The case law is clear that the due diligence criterion is applied with some flexibility in criminal cases.
[133] Due diligence is not a precondition to admissibility; rather, it is to be considered in deciding whether the interests of justice, including the need for finality, support admitting the proposed fresh evidence: Manasseri, at paras. 206, 219; Allen, at paras. 92-93; R. v. M.P.S. (1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 410-1.
[134] The due diligence analysis is context-sensitive. Where evidence meets the cogency requirement, concerns about finality must be weighed in the context of the relative gravity of the consequences for the appellant of rejecting the fresh evidence. In criminal cases involving serious charges, such as murder, lack of due diligence alone will not mandate exclusion. Whether the failure to tender the evidence at trial was the result of a tactical decision may weigh heavily against admission, although even that is not determinative if there is strong reason to doubt the factual accuracy of the verdict. Due diligence should not trump the other fresh evidence admissibility criteria where trial counsel's actions in not adducing the evidence were reasonable in the circumstances: Manasseri, at paras. 220-225; R. v. Garcia, 2018 ONCA 580, at para. 22; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 19; R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at paras. 15, 19.
[135] In this appeal, the evidence of the explanation for why the evidence of Mr. Casseus was not tendered at trial comes from an affidavit from a law clerk to trial counsel, Kathryn Mongeau, and is based on information provided by trial counsel and Ms. Mongeau's belief of that information. The court was advised during the hearing that trial counsel who provided the substance of what is in Ms. Mongeau's information and belief affidavit now works for the Crown's office in British Columbia. We were told there is a policy of that office that posed difficulty with him providing an affidavit. On this basis, Crown counsel on this appeal consented to the explanation in relation to due diligence being filed through Ms. Mongeau's affidavit. As a result, I proceed to consider the explanation as if it had been provided by trial counsel.
[136] The explanation provided is as follows. During a video-conference meeting between trial counsel and the appellant on November 20, 2020 (which was within a week prior to the appellant's preliminary inquiry), the appellant told trial counsel that the person described in the disclosure as the "unidentified black male" (and visible in the video evidence) was Mr. Casseus. The appellant was not able to provide any contact information or leads for finding Mr. Casseus. Based on his review of the video evidence, trial counsel understood that Mr. Casseus was a friend or associate of Mr. Kabuya-Ntumba. Trial counsel believes the appellant also told him that Mr. Casseus was a friend or associate of Mr. Kabuya-Ntumba.
[137] Trial counsel never pursued attempting to locate Mr. Casseus because he had little in the way of leads for how to contact him and he did not have reason to believe that Mr. Casseus would be cooperative or provide helpful evidence because he was a friend or associate of Mr. Kabuya-Ntumba and did not associate with the appellant. The Crown disclosure contained no statement from Mr. Casseus or any indication that he was ever identified or spoken to by police. As a result, trial counsel prioritized other issues he perceived as more pressing ahead of trying to locate Mr. Casseus.
[138] The Crown argues that Mr. Casseus' evidence was not pursued with due diligence by trial counsel. The Crown argues that the decision not to try to locate Mr. Casseus and interview him was tactical, based on trial counsel's belief that he would not provide helpful evidence to the appellant, since he was an associate of Mr. Kabuya-Ntumba.
[139] In M.(P.S.), at p. 420, Doherty J.A. observed that the due diligence assessment of the actions taken by trial counsel refers to what one "should expect from a reasonably competent counsel, not to all efforts which, in hindsight, would have furthered the case for the defence".
[140] While trial counsel could have made attempts to locate Mr. Casseus, there is nothing in the record that suggests those efforts would have been successful. Although Mr. Casseus had been in the same detention centre as the appellant at some point in 2019, trial counsel had no leads to locate him in November 2020 or up to the trial. Trial counsel's belief that Mr. Casseus would not provide information that would assist the appellant was not unreasonable in the context of the information known to counsel at that time.
[141] Further, trial counsel's decision not to attempt to locate Mr. Casseus was not tactical in the sense that this court uses that term. Typically, where this court labels a decision of trial counsel as "tactical" such that it may factor into denying some type of relief on appeal, it is because counsel chose not to pursue a particular course in order to avoid a downside risk associated with that course. For example, trial counsel might forego a Vetrovec warning in order to avoid the listing of confirmatory evidence that comes along with such a warning. Or counsel may choose not to lead particular evidence at trial because it is inconsistent with a defence being pursued. These are the types of tactical decisions that this court is cautious about allowing an appellant to resile from on appeal.
[142] By contrast, there was no downside risk had trial counsel chosen to try to locate Mr. Casseus to interview him, apart from possibly wasting counsel's time. If counsel had located Mr. Casseus and interviewed him and it turned out his evidence was not helpful, there was no obligation to call him as a witness.
[143] The Crown also argues that the appellant made a tactical decision not to testify at trial and give evidence that Mr. Kabuya-Ntumba shot first. The Crown argues that the appellant cannot resile from that decision and seek to fill the evidentiary gap with evidence from Mr. Casseus of the "same kind" that the appellant could have provided.
[144] While I accept that the appellant's choice not to testify at trial is a decision that may properly be characterized as tactical and one that he cannot resile from on appeal, I disagree with the assertion that evidence from Mr. Casseus about who shot first is the "same kind" of evidence as the appellant could have given about who shot first. Evidence about who fired first coming from Mr. Casseus – an associate of Mr. Kabuya-Ntumba, about whom there is no evidence of a motive to fabricate in favour of the appellant – is qualitatively different than evidence from the appellant about who fired first. While our law prohibits consideration of an accused's interest in an acquittal in assessing their credibility if it undermines the presumption of innocence, it does not entirely bar consideration of an accused's interest in an acquittal: R. v. B.L. (1993), 82 C.C.C. (3d) 189 (Ont. C.A.); R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at paras. 11-16; R. v. Shabbir, 2024 ONCA 750, at paras. 26-34. The practical reality is that evidence that Mr. Kabuya-Ntumba shot first could realistically be viewed differently by a trier of fact coming from Mr. Casseus than coming from the appellant. Further, Mr. Casseus' evidence also includes the other area of materiality of Mr. Kabuya-Ntumba's expressions of aggression towards the appellant prior to the shooting, information which was not in the appellant's knowledge, but is nonetheless relevant to the jury's consideration of who was the aggressor under the first branch of the self-defence analysis.
[145] In sum, I accept that trial counsel could have taken steps to try to locate Mr. Casseus prior to trial, but his decision not to do so was reasonable in the circumstances known to counsel at the time and was not tactical. Weighed against that is the cogency and centrality of Mr. Casseus' proposed fresh evidence to the appellant's claim of self-defence. I accept that Mr. Casseus' evidence is not without flaws, but it is reasonably capable of belief by a trier of fact on the material issues of who was the aggressor and who fired first. This is not a case where the due diligence criterion should prevent admission of the fresh evidence.
(4) Conclusion on admissibility of the fresh evidence
[146] Brightner Casseus was present for the events that led to the appellant's conviction for second-degree murder. Mr. Casseus is able to provide cogent evidence that bears directly on the appellant's claim of self-defence, the central issue in his trial. There is no evidence that Mr. Casseus has a motive to favour the appellant in his evidence. Mr. Casseus' evidence was not led at trial. Trial counsel did not view attempting to locate him as a priority in preparing the appellant's defence because he had no leads to locate Mr. Casseus and assumed he would not provide helpful evidence to the appellant because he was an associate of the deceased. There is nothing in the record to suggest that trial counsel would have been successful in locating Mr. Casseus had he tried.
[147] The appellant has been convicted of second-degree murder, sentenced to a life sentence without eligibility for parole for 14 years.
[148] The interests of justice standard for admissibility of fresh evidence recognizes that sometimes the interest in finality of verdicts must give way to the need to ensure that criminal trial verdicts reach just results and are based on all of the available evidence. With respect for the contrary view of my colleague, I am of the view that Mr. Casseus' evidence is sufficiently cogent that it could reasonably be believed by a trier of fact. Given its centrality to the appellant's self-defence claim and the reasonable explanation of trial counsel, the failure to lead the evidence at trial should not bar its reception as fresh evidence on appeal.
Disposition
[149] I would admit the fresh evidence, allow the appeal, set aside the conviction for second-degree murder, and order a new trial on that count.
Released: August 8, 2025
K.M.v.R.
J. Copeland J.A.
Footnotes
[1] See R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, and Criminal Code, s. 34, regarding the three inquiries required to assess a claim of self-defence.
[2] On its face, one might question the appropriateness of such a policy that prevents counsel from providing evidence about his former work as defence counsel that is relevant to whether it is in the interests of justice to admit fresh evidence in a conviction appeal. However, the court was not provided any information about the policy, its scope, and the reasons behind it to draw a conclusion in that regard.