Ontario Court of Justice

Date: 2016-06-16

Court File No.: Toronto 4817 998 15 75011558 00

Between:

Her Majesty the Queen

— and —

Herve Kabengele-Kashila

Before: Justice Richard Blouin

Heard on: May 5 and May 6, 2016

Reasons for Judgment released on: June 16, 2016

Counsel:

Ms. Monica Gharabaway — counsel for the Crown

Mr. Elliott Willschick — counsel for the defendant Herve Kabengele-Kashila

BLOUIN J.:

Introduction

[1] The defendant stands charged with three offences (Robbery, Disguise with Intent and Administer Noxious Substance) arising from a home invasion into a basement apartment located at 25 Dupont Street, Toronto, on September 4, 2015 just after midnight.

[2] The Crown called the complainant MacKenzie Lewis, and a forensic identification officer. Admissions were made by way of agreed statements, obviating the need to call other witnesses. The defendant testified.

Crown Evidence

The Home Invasion

[3] The complainant, a 26-year-old man, heard his dogs barking and a noise at the front door. When he approached the door, he found it difficult to breathe. It became apparent that someone had projected pepper spray through the slightly opened door window into the eyes of his dogs. At that point the door "flew open", and at least two, maybe three, men burst in. Mr. Lewis was "pretty sure there were three people" but since he saw only two with pepper spray cans, the third person may not have entered the apartment. The men had bandanas over most of their faces, and the only description he could give, other than general sizes of the men, was that they were black.

[4] Mr. Lewis was struck on the top of his shoulder with a crowbar. The men were in his apartment less than ten seconds before he pushed them back out the doorway. One grabbed a bag before being ejected.

[5] Although no timeframe was indicated, Mr. Lewis washed out his eyes, and tried to wash out the eyes of his dogs, called his brother in Woodbridge and requested him to come to Toronto, picked up a baseball bat and walked outside. Right in front of his house were, in his opinion, the same three men (dressed in hoods and bandanas).

[6] Lewis felt they would make another attempt to enter his apartment so he chased them. The three men ran across Dupont Street to a white Ford Focus. One got in the driver's seat, one got in the front passenger seat, and the third man got in the rear passenger seat. Lewis then started smashing the windows and tail lights of the vehicle with the bat. While Lewis was smashing the windows of the car, the front passenger was trying to pepper spray him, the driver was trying to start the ignition, and the man in the back seat got out and ran westward. Eventually, the driver and the front passenger got out of the car and ran in the same direction. Mr. Lewis, for obvious reasons, was unable to identify any of his assailants and had no reason to suspect anyone.

[7] In cross-examination Mr. Lewis conceded that his eyes were burning and watering a bit. Lewis was also asked for details of the bag taken. He said it was a brown Louis Vuitton, containing nothing of value. It never occurred to him to call police but, instead, he took matters into his own hands since he was "enraged". He disagreed that the man in the driver's seat was there when he arrived at the car. Lewis also agreed that the driver might not have been wearing a bandana when he started smashing the vehicle. In any event, he was unable to identify the defendant at any time.

Forensic Identification Officer

[8] Detective Constable Chris Rim arrived at 25 Dupont Street around 3 a.m. His photographs of Dupont Street, the apartment door, and a white Ford Focus (licence BLES 461) with smashed windows were collectively made Exhibit 4. Those photos display:

• a green bandana that was found on the street;
• gardening gloves that were found on the street and sidewalk;
• a crowbar that was found on the sidewalk beside a yellow baseball bat;
• a red glove, and a metal bar wrapped by a red bandana that were found on the driver's seat of the Ford;
• a brown Louis Vuitton bag, and a black pepper spray can that were found on the driver's side floor of the Ford.

[9] No forensic evidence, DNA or otherwise, was obtained from any of those items.

Other Agreed Evidence

[10] In addition to Rim's photographs, photographs and admitted evidence of Detective Constable Kim Sequin were made exhibits. In my view, nothing was added by that evidence. It was also admitted (Exhibit 7) that the other parties to this home invasion were never identified. In fact, in the defendant's statement to police upon his arrest December 7, 2015, he did not provide the names of those persons. The police investigated the defendant three months after the Robbery, after they determined through cell phone records that the defendant was in the area, and that he had rented the Ford Focus. That statement was admitted as voluntary, on consent, and made Exhibit 2.

Defence Evidence

[11] Mr. Kabengele-Kashila is 29. In September of 2015 he was living in Mississauga with his cousin. The defendant conceded that he has a criminal record involving a "DUI", and Obstruct Police (false name to avoid detection). He also conceded that he rented the white Ford Focus, BLES 461, under the name Gabriel Goldsmith (a friend from Montreal) because he didn't have the correct licence, or a credit card.

[12] The defendant attended an East Side Mario restaurant "around Front" Street to meet a friend, Joe, and watch a baseball game somewhere between 9-10 p.m. At the bar Joe was with two other men that the defendant did not know. Joe asked if the defendant had a car because he wanted a ride to pick something up on Dupont Street and then continue to Lansdowne Avenue. The defendant was fine with driving Joe and his two friends, and he did so. He was told to wait on Dupont while they picked something up. The defendant sat in the driver's seat and texted his girlfriend.

[13] A minute or two later, one of the men returned out of breath and got into the back seat. Then, ten seconds later, Joe got into the passenger seat, and told the defendant to drive away. Out of nowhere, a man started smashing the windows with a baseball bat. The defendant had never seen him (the complainant) before that night. The complainant started smashing the back window and tail lights. When he walked around to the driver's side, the man in the rear got out and ran. When the complainant walked from the front of the Ford toward the passenger side, the defendant got out and ran westbound for two minutes until he was able to call for a taxi.

[14] The defendant was asked about the items photographed in and around the Ford. He did not recognize any item other than the Louis Vuitton bag which he claimed was his. At no time had he ever seen bandanas, gloves, pepper spray or a crowbar. The defendant maintained he never got out of the vehicle, and had no knowledge of what Joe and his friends were about to do. He was just giving them a ride. He claimed to have never contacted Joe in the three months after the incident and before his arrest. The next morning he did phone the manager of Practicar to inform the rental company owner about what happened. The defendant took responsibility for the damage and paid $1300 to Practicar.

[15] In cross-examination, the defendant was asked who got out of the car second (after the rear passenger) when the complainant was smashing windows. He maintained that he exited next, and left Joe in the car. The defendant specifically denied that the items found in the front driver's seat and on the floor were his (except the Louis Vuitton bag). He said he took no part in any Robbery.

Findings

[16] The defendant's account, when compared against independent physical evidence and common sense, has some problems. They include:

• Four items (gloves, metal bar wrapped by bandana, pepper spray, brown bag) were found either on the driver's seat, or the driver's side floor of the Ford Focus that are pieces of evidence connected to the home invasion. It seems unlikely that all four items would be deposited directly proximate to the seat the defendant was occupying in the few seconds after he left that seat to flee the scene, if he was not involved in the crime.

• It is also unlikely, given the three assailants described by the complainant had bandanas, pepper spray, gloves and a crowbar, that the defendant never saw any of these items either before or after the home invasion.

• It is difficult to accept that a man who has done nothing wrong, except having an attacker smash up his rental car, would not phone police. Then he paid $1300 for the damage.

• It is difficult to accept that an innocent person, especially one that is used as a dupe by his friend Joe, would not contact that friend after the bat smashing of his rental car to seek an explanation of what occurred that evening. He did not contact Joe.

• Two notable aspects of the defendant's statement to police on December 7, 2015 were inconsistent with his evidence at trial. Firstly, Detective Moreau asked the defendant if any men re-entered his car before the baseball bat attack. The defendant replied that "one of them tried" and that "He got out. I got out." His evidence at trial was that two men (Joe and another) re-entered his car. Secondly, the defendant was asked by Moreau where he was that night before the Robbery. The defendant told him he did not remember. At trial, he testified that he and Joe and the others had spent a few hours at East Side Mario's restaurant watching a baseball game.

• The defendant maintained the Louis Vuitton bag was his. It is difficult to believe that the complainant lost the same bag in the Robbery.

• The defendant has a criminal record for an offence of dishonesty. In addition, he admitted he misled the car rental company by holding himself out to be another.

[17] As a result, assessing the first aspect of R. v. W.D., I cannot conclude that I believe the defendant. The issue then becomes whether his evidence raises a reasonable doubt or whether, when accessing the evidence in its totality, a reasonable doubt has been raised.

[18] Let me say at the outset that I found the complainant, Mr. Lewis, to be an honest and credible witness. He was direct, and thoughtful. He admitted things that were possibly uncomplimentary (for example that he was enraged by the Robbery, and sought retribution personally, instead of calling police). However, his ability to observe and assess were compromised to a degree by the trauma of masked men breaking into his residence after midnight and striking him with a crowbar. In addition, the pepper spray was burning and watering his eyes. He wasn't totally sure whether two or three men entered his apartment. In that way, reliability is diminished somewhat.

[19] In the final analysis, while I have serious doubts regarding the veracity of the defendant's account, I find that it could reasonably be true. In that regard, a reasonable doubt has been raised. Although problems with the defendant's evidence have been noted above, I must say that his story remained relatively consistent and unmoved. I cannot say I believe him, but it could be true. In my view, the physical evidence regarding items on the driver's seat and floor was the most damning. If Mr. Kabengele-Kashila was the last person out of the car, it would be easy to conclude that he knew of their presence and, in fact, possessed them. His evidence that Joe was still in the car when he escaped was not contradicted. It is possible that those items were thrown there by Joe without the defendant's knowledge. Again, this is unlikely, but the standard of beyond a reasonable doubt is a significant one, and the Crown's case falls just short. I cannot fully reject his evidence that he was not party to this Robbery. In other words, his evidence along with other evidence has created a reasonable doubt.

[20] Accordingly, there will be a finding of not guilty on all three counts.

Released: June 16, 2016

Signed: "Justice Blouin"