COURT FILE NO.: CR-15-1098
DATE: 20180601
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Morrow, for the Crown
- and -
LEJON HERON
M. Ellison, for the Defence
HEARD: April 23, 24, 25, 26, 2018, at Brampton
REASONS FOR JUDGMENT
André J.
[1] Mr. Lejon Heron allegedly stabbed Mr. Constantin Kabamba, known as “Congo”, in the right chest area on February 15, 2014, during a house party in Mississauga. During the trial, Mr. Kabamba described the circumstances that led to the stabbing and his identification of Mr. Heron as the stabber. Two other persons who were at the party testified but both denied seeing the stabbing. I am therefore left to decide whether the Crown has proven the identity of the stabber beyond a reasonable doubt.
SUMMARY OF THE EVIDENCE
[2] Mr. Kabamba testified that he went to the house party hosted by an acquaintance called “Valerie” where he consumed 8 to 9 beers during the evening. Sometime after his arrival at the scene at approximately 10:00 p.m., the accused, who he had known previously, asked him for a beer. Mr. Kabamba declined. Later during the evening, Mr. Kabamba used the washroom.
[3] After Mr. Kabamba stated that he was ready to leave, Mr. Heron approached Mr. Kabamba and insulted him. Mr. Kabamba, who is from the Congo, testified that the accused treated him as if he was a gorilla or monkey. Mr. Heron told Mr. Kabamba that he came from the bush and had no manners. Mr. Kabamba insulted Mr. Heron.
[4] Mr. Kabamba testified that Mr. Heron chased him into the living room and pushed him, causing him to fall. Five patrons tried to separate the two. Mr. Kabamba made his way to the front of the house to leave. When he was 3 to 4 metres from the washroom, a fist struck him. He saw Mr. Heron’s hand moving away from his body after he was struck. It appeared that Mr. Heron had something in his hand. Mr. Kabamba saw something like metal about 1 inch to 1 ½ inches long. The two men were almost side by side when Mr. Kabamba was struck. Mr. Heron was 2 to 5 centimetres away from Mr. Kabamba when the stabbing occurred.
[5] At the time Mr. Kabamba was stabbed, Mr. Heron was to Mr. Kabamba’s right as were three other persons. The other persons were enjoying themselves. They were about 1 ½ metres away from Mr. Heron when Mr. Kabamba was stabbed. The lighting of the hallway was rather “dim” at the time of the stabbing, Mr. Kabamba testified.
[6] Mr. Kabamba exited the house. A young boy outside the home then told him that he was bleeding. Mr. Kabamba then recalled that Mr. Heron had “touched me”. He testified: “It was him. I recalled what he did with his hands”. Before an ambulance came to the scene Mr. Heron approached him and stated: “I’ll get you.” Mr. Kabamba was subsequently hospitalized and treated for a stab wound on the right side of his chest.
[7] When asked about the presence of a person called Yuk at the party, Mr. Kabamba replied that he did not see him there. He denied that Yuk was the person who stabbed him.
Valerina Morris
[8] Valerina “Valerie” Morris, who hosted the party, testified that she knew Mr. Kabamba, Mr. Heron and Hopeton Sutherland who she knew as “Yuk”. Mr. Heron and Mr. Sutherland are very different in height, body size and hairstyle. Ms. Morris testified that it would be easy to tell the two men apart.
[9] All three men were at the party. They were drinking from a bag which Mr. Kabamba brought to the party. They were drinking a beer called Maximum Ice and a Jamaican rum called Wray Nephew.
[10] While watching a basketball game a scuffle started between Mr. Kabamba and Mr. Heron. Mr. Kabamba then “flipped over” Mr. Heron and started to beat his chest, saying “I am a gorilla” or words to that effect. Eight to ten minutes later, Yuk inexplicably attacked Mr. Heron and started punching him in the face. Persons stepped in to break up the fight including Mr. Kabamba who was pulling the men apart. Two big male patrons then escorted Mr. Sutherland out the back door following which Ms. Morris locked the back door.
[11] Mr. Heron was bleeding after the attack by Mr. Sutherland. He went to the washroom, close to the front door. Ms. Morris identified blood on a wall next to the washroom as having come from Mr. Heron. She testified that approximately 25 minutes after Mr. Heron and Mr. Kabamba had left her home, a woman advised her that Mr. Kabamba had been stabbed. Ms. Morris stated that there were no other fights at the house that evening.
Hopeton Sutherland
[12] Following an application for the admission of third party suspect evidence, I allowed the defence to call Mr. Sutherland, known as “Yuk”, as a defence witness.
[13] Mr. Sutherland testified that he consumed alcohol with Mr. Kabamba before they went to Ms. Morris’ home. While there, Mr. Heron and himself had an argument. He threw a couple punches in Mr. Heron’s direction but they did not make contact with the intended target. Later that night, Mr. Kabamba and Mr. Heron went out the front door of the residence. Mr. Sutherland later found out that there had been a stabbing outside the residence. He did not see the stabbing.
[14] Before the stabbing Mr. Kabamba and Mr. Heron argued in the living room but did not become physical. There were no fisticuffs in the house while he was there. Mr. Sutherland did not stab anyone that night.
[15] Defence counsel brought an application to cross-examine Mr. Sutherland. I granted the application.
[16] Defence counsel put to Mr. Sutherland that in a video statement to the police, he stated that he, Mr. Sutherland, was inside the door of the residence when Mr. Heron came at him with a knife and that he had seen Mr. Heron with a knife. Mr. Sutherland did not adopt this statement and maintained that he did not see any stabbing neither did he see Mr. Heron with a knife. Mr. Sutherland acknowledged that he had a lengthy criminal record.
ANALYSIS
[17] This case turns on the credibility of the three civilian witnesses called by the Crown and defence.
[18] While Mr. Heron did not testify, Mr. Sutherland was called as a witness by the defence. Accordingly, my analysis of the evidence is governed by the principles set out by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742. These are:
(1) If I believe Mr. Sutherland’s evidence that Mr. Heron did not stab Mr. Kabamba, I should acquit;
(2) Even if I disbelieve Mr. Sutherland, but conclude that his evidence is capable of raising a reasonable doubt in the Crown’s case, I should acquit; and
(3) Even if I disbelieve Mr. Sutherland’s evidence or find that it is incapable of raising a reasonable doubt in the Crown’s case, I must be satisfied beyond a reasonable doubt of Mr. Heron’s guilt, based on the totality of the evidence I accept.
[19] Mr. Sutherland testified that he did not see anyone with a knife and did not see any stabbing that evening. He also testified that he took a few swings at Mr. Heron but did not make any contact with him. I do not believe Mr. Sutherland’s testimony neither do I find it to be capable of raising a reasonable doubt in the Crown’s case for the following reasons:
(1) Mr. Sutherland testified in a very glib and frivolous manner. He made reference to the whole world watching him including a certain judge in the Ontario Court of Justice who convicted him and sent him to the penitentiary for approximately six years;
(2) Mr. Sutherland has an extensive criminal record from 1992 to 2013. He has numerous convictions for different offences including at least 15 separate convictions for crimes of dishonesty and 8 separate convictions for failing to comply with court orders;
(3) There is a significant discrepancy between Mr. Sutherland’s testimony and a prior statement he gave to the police on the date of the stabbing. He testified that he did not see anyone with a knife including Mr. Heron. However, he told the police that Mr. Heron approached him while armed with a knife and that he, Mr. Sutherland, had to arm himself with a bottle in the event that Mr. Heron tried to harm him;
(4) Mr. Sutherland’s testimony flies in the face of that given by Ms. Morris. Mr. Sutherland testified that his fists never made contact with Mr. Heron. Ms. Morris, on the other hand, testified that Mr. Sutherland pummelled Mr. Heron in the face, causing it to bleed. Following this, Mr. Heron went into the washroom to wash the blood from his face.
[20] I have similar concerns regarding Ms. Morris’ testimony. Mr. Kabamba testified that he came to her house and purchased drinks. He said that if he had brought drinks to Ms. Morris’ house, she would have asked him to leave. Ms. Morris, on the other hand, testified that Mr. Kabamba brought his own drinks to her house.
[21] I am inclined to accept Mr. Kabamba’s evidence on this issue for a few reasons. The photographs of the main floor of Ms. Morris’ house showed a bar in the living room which is some evidence that drinks were being served. Second, Ms. Morris has a compelling reason to conceal the fact that alcohol was illegally being sold in her house at regular intervals. Indeed, at the first indication of violence in the home, she testified that she immediately rounded up every one and asked them to leave and locked her doors. Additionally, I accept Mr. Kabamba’s testimony that patrons at the party did not want him to call the police. Finally, Mr. Sutherland testified that Mr. Kabamba walked away from Ms. Morris’ house after he was stabbed.
[22] I am also concerned about the veracity of Ms. Morris’ testimony on account of a prior statement she gave to the police hours after the incident. She testified that Mr. Kabamba flipped Mr. Heron over twice and then started to beat his chest saying: “I’m a gorilla”.
[23] However, Ms. Morris told the police that it was Mr. Heron who had flipped Mr. Kabamba over; not Mr. Kabamba who had flipped Mr. Heron. I find that this flip in Ms. Morris’ testimony to have been deliberate and motivated by a need to paint Mr. Heron in the best possible light. The two men bear little or no resemblance. Ms. Morris testified that she had not been drinking during the evening; she had merely smoked some weed. She knew both men very well. She could not have been mistaken about who flipped who that evening.
[24] Ms. Morris testified that she was later told that Mr. Kabamba had been stabbed after all the patrons had left her home. She attributed the blood on the wall close to her main floor washroom as belonging to Mr. Heron; rather than Mr. Kabamba.
[25] There is no forensic evidence clarifying whether the blood on the wall came from Mr. Kabamba or Mr. Heron. I am therefore unable to conclude that the presence of these red stains, if indeed they were bloodstains, corroborates Mr. Kabamba’s testimony that he had been stabbed in the hallway of Ms. Morris’ home.
[26] This takes me to Mr. Kabamba’s testimony. Mr. Kabamba was able to give precise details about how he was stabbed including the distance between Mr. Heron and himself when the stabbing occurred; the distance between himself and the front door and seeing Mr. Heron’s hand with a knife after he was stabbed. He was able to recognize Mr. Heron as the stabber because he had known him previously; had earlier denied Mr. Heron’s request for a beer; and had earlier been pushed to the floor by Mr. Heron.
[27] And yet despite what appears to be Mr. Kabamba’s remarkable ability to recall these details, I am concerned not about the reliability of Mr. Kabamba’s evidence. By his own admission, Mr. Kabamba consumed 8 to 9 beers at Ms. Morris’ home. Mr. Sutherland testified that Mr. Kabamba had consumed alcohol earlier that evening. Mr. Kabamba was clearly inebriated by the consumption of alcohol that evening. Indeed, the Agreed Statement of Facts indicates the following:
[T]he victim had a blood alcohol concentration of 52 millimoles, which is equivalent to approximately 0.240 milligrams of alcohol in 100 millilitres of blood. Blood alcohol concentrations above 39 millimoles are considered toxic and concentrations about 87 may be life threatening.
[28] How then, would Mr. Kabamba have been able to clearly recall the exact circumstances of the stabbing having had more than three times the legal limit of alcohol in his blood, had he been operating a motor vehicle? Indeed, Mr. Kabamba testified that he was not drunk; however, he testified at a preliminary hearing on July 17, 2015, that he was “drunk, very drunk”. Furthermore, he testified under cross-examination that if he drank one beer, he felt “a little bit tipsy” while if he continued, he would not be able to speak and would be drunk.
[29] There are other areas of Mr. Kabamba’s testimony that gives me some concern. He was not aware he had been stabbed until a young boy advised him that there was blood on his sweater. Only then did he recall that Mr. Heron had touched him. Additionally, Mr. Kabamba testified at the preliminary hearing that he had gotten “two stabs”. When asked by a police officer at the hospital what had happened, he replied “some bad guys, some robbers”. Finally, Mr. Kabamba testified that the lighting in the hallway where he was stabbed was dim although that in the living room was quite bright.
CONCLUSION
[30] For the above reasons, I do not find Mr. Kabamba’s version of events to be sufficiently reliable to justify a conclusion that the Crown has proven Mr. Heron’s guilt beyond a reasonable doubt. Accordingly, the charge is dismissed.
André J.
Released: June 1, 2018
COURT FILE NO.: CR-15-1098
DATE: 20180601
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
LEJON HERON
REASONS FOR JUDGMENT
André J.
Released: June 1, 2018