Court Information

Ontario Court of Justice

Date: 2014-04-07

Court File No.: Toronto 4817 998 12 70002234-00

Parties

Between:

Her Majesty the Queen

— AND —

Jean-Robert Mudenge

Judicial Officer and Counsel

Before: Justice Richard Blouin

Heard on: October 23, 2013, and January 15 and March 17, 2014

Reasons for Judgment released on: April 7, 2014

Counsel:

• Christine Jenkins, for the Crown
• The accused Jean-Robert Mudenge, on his own behalf

BLOUIN J.:

Charges and Overview

[1] Jean-Robert Mudenge stands charged that he assaulted Cory McCracken while using a weapon, and committed bodily harm on him, on May 31, 2012.

[2] Mr. Mudenge stabbed his best friend Cory McCracken in the back with the neck of a broken vodka bottle. Both were intoxicated and had argued vigorously about a work-related matter. Mudenge claims he acted in self-defence because of assaults by McCracken. He was of the view that McCracken was violent when drinking and was escalating his aggression to the point where he felt there was no alternative but to protect himself. The two friends and business partners had argued dozens of times in the past, but none had progressed to physical contact (at most, pushing). Unfortunately, the stab wound was deep with a long slice. Twelve stitches were required to close the six-inch wound. McCracken still suffers lack of motion to this day. The complainant's girlfriend was present, witnessed the incident, and testified at the trial, as did both the defendant and the complainant.

Witnesses

Cory McCracken

[3] On May 31, 2012, the defendant and Mr. McCracken were drinking and socializing in their shared apartment after work. Also present was McCracken's girlfriend, Nicole Hayachi. Many drinks were consumed but McCracken did not feel that the alcohol had affected him, or the defendant, much. After arguing loudly for five minutes in the kitchen area, the defendant broke a vodka bottle on the kitchen island. McCracken believes he struck the defendant with an open hand on the face while the defendant held the neck of the broken bottle. McCracken then turned around and felt a "slice across his left back, left shoulder." He eventually was taken to hospital and received 12 stitches to close the wound. A scar remains and he has a lack of motion in the shoulder.

[4] When describing the assault McCracken admitted that while he was intoxicated at the time, he understood what was happening, but things were blurry. He was not able to drive. He said that he and Rob (the name the defendant is known by) had arguments which resulted in pushing and shoving, but nothing more than that. He maintained a working relationship with the defendant after this incident.

Nicole Hayachi

[5] Ms. Hayachi was the complainant's girlfriend and was present in the condominium that night. She recounted the argument between the two men. Rob was on one side of the island and Cory was on the other. The argument kept getting louder. Ms. Hayachi had not been drinking like the men. She was shocked when the defendant smashed the vodka bottle on the island and held it in his hand. McCracken then moved to the other side of the island and confronted the defendant regarding the stupidity of breaking the bottle. She remembered shoving next, but was not sure who first made physical contact. After more yelling, McCracken turned to go into his bedroom. The defendant walked after McCracken, "maybe five steps," and "slashed his back" while he was facing in the opposite direction. She felt both men were intoxicated at this point.

[6] The next time Hayachi saw the defendant was only one week later at the same condominium, where they spoke about the incident. According to Hayachi, the defendant said "that they were both angry, and he doesn't know why he did it, but it happened." He also said "he did it out of anger and he regretted doing it and didn't know why."

[7] In cross-examination Mr. Mudenge asked Ms. Hayachi if she would describe him as a particularly violent person. She said, "At times, yes." In her memory, the vodka bottle was broken before any physical contact occurred. She rejected the defendant's suggestion that she and McCracken discussed the case, although she admitted she had lunch with him and they left the courthouse together.

Robert Mudenge (The Defendant)

[8] The defendant is a 25-year-old corporate sales trainer, with a political science degree from Brock University. He has no criminal record.

[9] He testified about witnessing McCracken in "some sort of little scuffle" with the police. This event happened after May 31, 2012 but I ruled it should be considered pursuant to R. v. Scopelliti, 1981 63 CCC(2d) 481. Before that, in August 2011, he had been made aware (by McCracken) that McCracken had been incarcerated after a fight with a bouncer. Mudenge testified that he was aware of the defendant's strength and his ability to use violence when intoxicated. Being 30-35 pounds lighter, Mudenge felt he had to defend himself "or I was looking at some very grievous bodily harm."

[10] After the argument had started, and both were intoxicated, Mudenge claims the following:

• that McCracken threatened "to take this outside. I'll knock you the fuck out right now";
• that McCracken approached and put his forearm on the defendant's neck and pushed him back to the stove;
• that he pushed McCracken back;
• that McCracken then grabbed both shoulders and tossed him to the side;
• that McCracken then hit the defendant with an open hand on the side of the head;
• that the defendant felt he had to do something so he broke the vodka bottle as a warning sign, and to "trigger some sort of sense into the both of us";
• that McCracken responded to the bottle breaking by taunting the defendant, and hitting him in the head again.

[11] It was at that point the defendant said: "As he's turning around to walk away, my adrenaline kicked in…and that's when the incident actually happened."

Criminal Code – Provisions in Force Since March 11, 2013

Defence of Person

DEFENCE — USE OR THREAT OF FORCE / Factors / No defence.

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. R.S., 1985, c. C-46, s. 34; 1992, c. 1, s. 60(F); 2012, c. 9, s. 2.

Criminal Code – Provisions Prior to March 11, 2013

Defence of Person

SELF-DEFENCE AGAINST UNPROVOKED ASSAULT / Extent of justification.

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. R.S., 1985, c. C-46, s. 34; 1992, c. 1, s. 60(F).

SELF-DEFENCE IN CASE OF AGGRESSION.

35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if

(a) he uses the force

(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and

(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;

(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and

(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose. R.S., c. C-34, s. 35.

Findings

[12] In R. v. Pandurevic, 2013 OJ 2380, Justice MacDonnell concluded that the intent of the new self-defence provisions was an attempt to bring clarity to that area of the law. He found the amendments applied retrospectively to that event which had occurred before the new provisions were enacted. However, the Supreme Court of Canada found in R. v. Dinely, 2012 SCC 58 that "the right of an accused to rely on a defence is a substantive right and the new legislation has to be interpreted so as not to deprive the accused of a defence that would have been open to him or her at the time of the impugned act." As a result, I must be satisfied that the old legislation does not provide a defence that the new legislation would not.

[13] In my view, the defendant's claim of self-defence should be rejected regardless of which interpretation of self-defence is applied.

[14] I accept that the defendant reasonably believed that his friend, while intoxicated and angry, both used and threatened some force. However, I conclude that the act of stabbing the complainant in the back was not done for the purpose of defending himself. Nor was it reasonable in the circumstances. The factors in s. 34(2) must be considered:

• this was a stabbing with a weapon in the context of relatively minor violence (slapping);
• no force by McCracken was imminent as he turned to walk away;
• other means to respond to the perceived and actual force were present (the defendant could have simply allowed the complainant to walk away);
• both men were best friends with no prior use of significant force by either man;
• the use of the bottle was disproportionate to the threat of force, especially in the context of the complainant turning to walk away.

[15] Under the old provisions, the defendant would not be entitled to self-defence because I find the use of the bottle was not in self-defence but in anger. In any event, it was much more than necessary to defend himself. There was no reasonable apprehension of death or grievous bodily harm.

[16] In assessing the evidence, it is obvious that two of the witnesses were intoxicated and, accordingly, are not the most reliable historians of the events of that evening.

[17] I find Ms. Hayachi to be an impartial, thoughtful and ultimately a reliable witness. She had not been drinking. She had no bias or animus toward the defendant. She had nothing to gain by supporting the complainant's version. In fact, her evidence that the defendant travelled approximately five steps before plunging the jagged bottle into the complainant's back is considerably more damning than the complainant's evidence. I accept her evidence.

[18] There was no evidence that any collusion occurred between the Crown witnesses despite contact since the offence date. I find no merit in the defendant's contention that there was.

[19] Even on the defendant's evidence in examination-in-chief (he was not so certain in cross-examination) the complainant had turned to walk away. This was not self-defence. This was a manifestation of anger. In addition, the defendant admitted his regret and an explanation of acting out of anger to Ms. Hayachi when he spoke to her after the event.

[20] While Mr. Mudenge may have barely established an air of reality to his self-defence argument, I am satisfied the Crown has established the requisite elements of both offences beyond a reasonable doubt, including the absence of self-defence.

[21] Mr. Mudenge will be found guilty as charged. I will stay the conviction for assault causing bodily harm, since the prohibited act is encompassed in the weapon count.

Released: April 7, 2014

Signed: "Justice Blouin"