CITATION: R. v. Kazumba, 2025 ONSC 1903

COURT FILE NO.: CR- 24-40000700-0000

DATE: 20250327

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King

– and –

Ridge Kazumba and Thulani Moncrieffe-Belmar

Elizabeth Jackson and Amandeep Nagra, for the Crown

M. Cremer, for Mr. Kazumba

A. Monaco for Mr. Moncrieffe-Belmar

HEARD: March 14, 2025

Reasons for judgment on pre-trial application for severance

Robert CentA J.

1Ridge Kazumba applies for an order that he be tried separately from his co-accused, Thulani Moncrieffe-Belmar. For the purposes of this application only, the parties agree on the allegations and the anticipated evidence on which I should base my decision. None of the following allegations have been proven in court.

A. Introduction

2On August 24, 2023, Mr. Kazumba was eating dinner at the Royal Caribbean Café with two of his friends. The Café had a security camera that captured his table, the pick-up counter, and the Café’s front entrance in a single frame.

3Shortly after Mr. Kazumba’s food arrived at his table, Mr. Moncrieffe-Belmar and Mariah Brooks entered the Café to pick up an order that Ms. Brooks had placed by telephone. They stood at the counter waiting for their order to be ready. Mr. Moncrieffe-Belmar wore a face mask of the type that became more popular during the COVID-19 pandemic. Mr. Kazumba observed them at the counter, pulled his handgun from under his clothes, and held it by his right side, out of view.

4Two other women walked into the restaurant and approached the counter. Then, Nakhari Henry-Robinson entered the restaurant. Mr. Henry-Robinson was Ms. Brooks’ boyfriend and a friend of Mr. Moncrieffe-Belmar. Mr. Henry-Robinson was wearing a face mask similar to the one worn by Mr. Moncrieffe-Belmar. When Mr. Kazumba saw Mr. Henry-Robinson enter the Café, he jumped up, pointed his gun at Mr. Henry-Robinson, and shot him in the chest. Mr. Henry-Robinson was shot as he was reaching for his own handgun, which was hidden in the front pocket of his hoodie. Mr. Henry-Robinson turned to flee, and Mr. Kazumba shot him again in the back. Mr. Henry-Robinson ran out of the Café, but died shortly thereafter.

5Meanwhile, Mr. Moncrieffe-Belmar drew his own handgun and shot at Mr. Kazumba, hitting him once in the hand. Mr. Moncrieffe-Belmar fired his gun many times. In the bedlam, Ms. Butcher, another restaurant patron, was also shot. The whole incident took less than a minute and was recorded in its entirety by the Café’s security camera.

6The Crown charged Mr. Kazumba and Mr. Moncrieffe-Belmar on a single indictment, dated November 14, 2024. Counts 1 and 2 of the indictment relate to Mr. Kazumba, who was arrested on September 5, 2023.¹ He is charged with the following offences:

a. the second degree murder of Mr. Henry-Robinson, contrary to s. 235(1) of the Criminal Code; and

b. possession of a prohibited or restricted firearm with ammunition without being the holder of an authorization or licence, contrary to s. 95(1) of the Criminal Code.

7Counts 3 to 5 of the indictment relate to Mr. Moncrieffe-Belmar, who was arrested on January 23, 2024.² He is charged with the following offences:

a. the intentional discharge of a firearm while being reckless as to the life or safety of the individuals inside the Café, contrary to s. 244.2(1)(b) of the Criminal Code;

b. possession of a prohibited or restricted firearm with ammunition without being the holder of an authorization or licence, contrary to s. 95(1) of the Criminal Code; and

c. possession of a firearm while prohibited from doing so by reason of a s. 110 order, contrary to s. 117.01 of the Criminal Code.

8In this application, Mr. Kazumba seeks an order that he be tried separately from Mr. Moncrieffe-Belmar. For the reasons that follow, I dismiss the application.

B. Relevant legal principles

9Paragraph 591(3)(b) of the Criminal Code permits the court to order that one co-accused be tried separately from another:

593(1) The court may, where it is satisfied that the interests of justice so require, order

(a) that the accused or defendant be tried separately on one or more of the counts; and

(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts.

10The question to be determined is whether the interests of justice require severance. The interests of justice include the interests of the persons accused of the crimes and the interests of the community as represented by the prosecution. It is important to consider not only the interests of the accused person making the application but also the other co-accused person.³ In this case, however, Mr. Moncrieffe-Belmar did not allege that he would be prejudiced by a severance order or a joint trial, so the only competing interests are those of Mr. Kazumba and the Crown (representing the broader public interest).⁴

11The court should direct severance only if the accused person seeking severance proves that severance is required.⁵ Joint trials enhance the search for truth and avoid the possibility of inconsistent verdicts, especially where the evidence against each accused person is the same.⁶

12I accept the presumption that persons accused of the joint commission of a crime should be tried together.⁷ This case is somewhat atypical because Mr. Kazumba and Mr. Moncrieffe-Belmar are not confederates, accused of jointly participating in the commission of a crime. Rather, they are charged with separate offences that took place almost simultaneously, in a small area.

13Courts have identified several factors that are helpful in informing the decision to grant or refuse severance. The Court of Appeal has held that the factors to be considered in a case where a single accused is seeking to be tried separately on one or more of the counts pursuant to s. 591(3)(a) are not necessarily the same as in cases, like this one, considering the severance of co-accused pursuant to s. 591(3)(b).⁸ In Jaser, the Court of Appeal identified the following factors that are relevant to cases in which the severance of an accused person is sought:

a. the general prejudice to the accused seeking severance, and to the co-accused;

b. the extent to which the evidence against both or all accused persons is the same;

c. the risk of prejudice from the admission of evidence that relates to a single co-accused;

d. the possibility of inconsistent verdicts;

e. that severance will compromise the search for the truth in terms of depriving one or more triers of fact of relevant evidence;

f. the time and expense involved in ordering multiple trials;

g. the potential prejudice to the accused in terms of the right to be tried within a reasonable time;

h. the existence of antagonistic defences as between the co-accused; and

i. that one co-accused wishes to call another co-accused as a witness.⁹

C. The application of the legal principles to this case

14Mr. Kazumba relies on the following five factors in support of his request for a trial separate from Mr. Moncrieffe-Belmar: the likelihood of antagonistic defences; the lack of a legal or factual nexus among the counts; general prejudice to the accused and the complexity of evidence; the absence of a possibility of inconsistent verdicts; and the length of the trial and the prejudice to the accused’s right to be tried within a reasonable time.

15I will address these issues one at a time.

1. The likelihood of antagonistic defences and the desire of Mr. Kazumba to call Mr. Moncrieffe-Belmar as a witness

16Ms. Cremer, in her able and helpful oral submission, stated that the most important factor to be considered in this case is the existence of the likelihood of antagonistic defences at trial. Mr. Kazumba intends to advance the defence of self-defence, resting on a perceived or actual threat of force by Mr. Henry-Robinson and Mr. Moncrieffe-Belmar against him. Mr. Kazumba will submit that his actions “were taken for the purposes of defending himself from Mr. Moncrieffe-Belmar.”

17Both Mr. Kazumba and the Crown anticipate that Mr. Moncrieffe-Belmar will also advance a claim that he fired his gun in self-defence to Mr. Kazumba’s actions. In my view, even if both accused rely on the defence of self-defence, I am not sure these defences are properly described as antagonistic. This does not appear to be a case where a jury must reject one person’s claim of self-defence in order to accept the other person’s claim of self-defence.

18The core of Mr. Kazumba’s submission is that Mr. Moncrieffe-Belmar is not a compellable witness at trial if he is charged on the same indictment as Mr. Kazumba. Mr. Kazumba submits that this prejudices his right to make full answer and defence. This is less a problem of antagonistic defences between co-accused than it is a straightforward application of the Jaser factor “that one accused wishes to call another co-accused as a witness.” Framing the issue this way puts the spotlight directly on the core of Mr. Kazumba’s argument.

19Ms. Cremer submits that Mr. Kazumba is currently “hog-tied” to Mr. Moncrieffe-Belmar in a way that interferes with his right to make full answer and defence. Mr. Kazumba submits that there is an air of reality to the notion that Mr. Henry-Robinson and Mr. Moncrieffe-Belmar planned to kill Mr. Kazumba at the restaurant and that he is prevented from obtaining evidence from Mr. Moncrieffe-Belmar in support of that theory.

20In support of this submission, Mr. Kazumba points to evidence from the report of Det. Cst. Truong that indicates that Mr. Henry-Robinson and Mr. Moncrieffe-Belmar were associates (including photos and videos taken from Mr. Henry-Robinson’s phone) and that they may have previously been involved in a robbery together. Mr. Kazumba also points to evidence that three years before the shooting, Mr. Henry-Robinson and Mr. Kazumba traded insults via Instagram direct messages. In addition, Mr. Kazumba points to the fact that Mr. Henry-Robinson and Mr. Moncrieffe-Belmar had Ms. Brooks purchase their face coverings at a convenience store on their way to the Café. I observe that this evidence will all be admissible at a joint trial whether Mr. Moncrieffe-Belmar testifies or not.

21One accused’s desire to call a co-accused as a witness for his defence could provide the basis for a severance order, but the mere assertion of a desire to call the co-accused does not make severance automatic.¹⁰ An accused is entitled to a fair trial but not necessarily the ideal trial viewed solely from the accused’s perspective.

22Justice Doherty explained the two factors the court must consider in a case where an accused asserts that the right to full answer and defence will be compromised without severance to permit the accused to call the co-accused as a witness:

Where an accused seeking severance contends that his right to make full answer and defence will be prejudiced unless the co-accused can be compelled to testify, two factors must be addressed by the trial judge:

• Is there a reasonable possibility that the co-accused, if made compellable by severance, would testify?

• If the co-accused would testify, is there a reasonable possibility that the co-accused’s evidence could affect the verdict in a manner favourable to the accused seeking severance?¹¹

23I accept that there is a reasonable possibility that Mr. Moncrieffe-Belmar will testify if he is compellable at Mr. Kazumba’s separate trial. There is no evidence before me to suggest that Mr. Moncrieffe-Belmar would refuse to testify in response to a subpoena to a trial that is not his own.

24However, I am not satisfied that there is reasonable possibility that Mr. Moncrieffe-Belmar’s evidence could affect the verdict in a manner favourable to Mr. Kazumba. At this second stage, I am only to engage in a limited inquiry into the credibility and reliability of Mr. Moncrieffe-Belmar. I am not to intrude into the domain of the jury.¹²

25The primary difficulty for Mr. Kazumba is that he can not state with any certainty what Mr. Moncrieffe-Belmar’s evidence would likely be if he is called to testify. Mr. Kazumba’s factum outlined the potential evidence from Mr. Moncrieffe-Belmar as follows:

Part of the evidence on this issue is captured on the security camera from the Caribbean Café. However, other parts of the evidence on this issue would come from Mr. Moncrieffe-Belmar himself. For example, Mr. Moncrieffe-Belmar would be the only witness who could testify to his relationship with the deceased and their whereabouts prior to the shooting. Mr. Moncrieffe- Belmar, given his close association with the deceased, may be the only witness who can testify to the previous hostility and animosity on the part of the deceased towards the Applicant. Furthermore, given Mr. Moncrieffe-Belmar was with the deceased prior to the shooting, he is likely the only witness who can testify as to when or where the deceased came into possession of a loaded firearm and why he was in possession of a loaded firearm at the Caribbean Café.

26In my view, Mr. Kazumba has identified certain topics of interest on which he would like to examine Mr. Moncrieffe-Belmar. But Mr. Kazumba has not tendered evidence of what Mr. Moncrieffe-Belmar is likely to say about any of these topics.

27This is not a case like Savoury, where the accused seeking severance could point to the co-accused’s videotaped statement made under oath at the time of his arrest and the co-accused’s testimony in his own defence at the first trial of the charges. Those statements, if believed, would have excluded Mr. Savoury as a participant in the robbery. In that case, the Court of Appeal held that the trial judge erred by not granting severance at the second trial when the co-accused exercised his right not to testify.

28Similarly, this is not a case like Agawa, where the accused, known as Jimmy, wanted a separate trial from his co-accused, Mr. Mallet. Jimmy and Mr. Mallet were charged with the murder of a fellow inmate. In support of his severance application, Jimmy pointed to Mr. Mallet’s statement to the police when he was arrested:

That evidence refers to a conversation between Constable Peterson and the accused Mallet, at which time it is my understanding Mallet said to Constable Peterson, ‘Jimmy had nothing to do with this. Jimmy and I were having pop and chips. Landry came in, pulled a knife and wanted some money I owed him. I pretended to get the money. I grabbed him, got the knife. Jimmy was sitting on the bed at the end. I got Landry on the floor. I stabbed him. I think it was once but the other guy said it was more like ... I was going to tell a guard. I wasn't sure I killed him. But Jimmy said no and I helped him clean the room. If any of this is said outside, I will deny it.’¹³

29Leaving aside for a moment Mr. Mallet’s stated intention to deny the statement he made to the officer, Jimmy tendered evidence of what Mr. Mallet was expected to say if could be called to testify. That evidence, if believed, might well have affected the verdict in a manner favourable to Jimmy.

30Here, Mr. Kazumba has not identified the specific evidence Mr. Moncrieffe-Belmar would be expected to provide if he testified. There is no evidence that Mr. Moncrieffe-Belmar gave a helpful statement to the police when he was arrested or that he testified at a preliminary inquiry or previous trial.

31In this case, Mr. Kazumba can only speculate about what Mr. Moncrieffe-Belmar would say if he testified and hope that it would assist him to advance his defence of self-defence. If this were sufficient to justify severance, it would permit severance in any case where a co-accused suggested that they hoped to obtain helpful evidence from a co-accused. This would reverse the presumption in favour of joint trials and is not the law.¹⁴

32In the circumstances of this case, I do not find that there is a reasonable possibility that Mr. Moncrieffe-Belmar’s evidence could affect the verdict in a manner favourable to Mr. Kazumba.

2. Legal and factual nexus among the counts

33Mr. Kazumba submits that there is no factual or legal nexus among the counts on the indictment and that this factor favours severance. Mr. Kazumba correctly notes that the elements of the offence of second degree murder are different from the elements of the firearms charges faced by Mr. Moncrieffe-Belmar, and that the evidence relevant to Mr. Moncrieffe-Belmar’s charges has no legal or factual nexus to the evidence relevant to the charge facing Mr. Kazumba.

34Mr. Kazumba cites four cases that identify the legal and factual nexus among the counts as a factor to be considered in a severance application.¹⁵ However, all of these cases consider severance of counts against a single accused, not severance of one accused from a co-accused. Courts seem to treat the phrase “legal nexus between counts” as referring to counts arising from different transactions that meet the test for similar fact evidence.¹⁶ That notion has little utility in a case like this one.

35I note that this factor is not listed in Jaser, which was a case involving the severance of one accused from a co-accused. Instead, Jaser includes a slightly different factor, which it frames as “the extent to which the evidence against both or all accused persons is the same.” In my view, this formulation of the factor is more relevant to cases in which the severance of accused persons is sought.

36In this case, the evidence to be led at trial against Mr. Kazumba and Mr. Moncrieffe-Belmar will be virtually identical. The primary evidence at trial will come from the Café’s surveillance videotape that captured the entire incident. The jury will have to grapple carefully with this videotape in its deliberations. The evidence from the investigating officers will be largely the same with respect to both accused. The evidence of Ms. Brooks and Ms. Butcher will be the same and will be required against both accused. It is generally undesirable that there be separate trials involving the testimony of the same witnesses to the same events.¹⁷

37I accept Mr. Kazumba’s argument that there is no overlap between the elements of the offences charged against each accused; however, I think that misses the point. In this case, the evidence to be called against both Mr. Kazumba and Mr. Moncrieffe-Belmar is virtually the same. It is impossible to recite the evidence against one accused in a way that ignores the role of the other accused. In an application to sever one accused person from another, they key factor is whether the evidence against the accused persons is the same, not whether there is a legal nexus among the counts. In this case, the evidence against both accused persons will be virtually the same, which strongly favours a joint trial.

3. General prejudice to Mr. Kazumba and the complexity of evidence

38Mr. Kazumba submits that there is general prejudice to him because of the “effect of verdicts across counts” and that any verdict of guilt against Mr. Moncrieffe-Belmar would prejudice Mr. Kazumba in the eyes of the jury. Mr. Kazumba submits that this is particularly so, because the route to convicting Mr. Moncrieffe-Belmar is quite simple due to the overwhelming video evidence with respect to the charges filed against Mr. Moncrieffe-Belmar. Mr. Kazumba submits that this will prejudice him because the case against him is “much more nuanced and complex” because it involves the mens rea for second degree murder and his defence of self-defence. I disagree.

39The trial judge will instruct the jury that it must consider the guilt of each accused separately, based only on the admissible evidence against that accused person. I see no meaningful risk in this case that the trial judge will not be able to craft effective instructions to the jury to ensure that each of the co-accused receives a fair trial.

40Mr. Kazumba also submits that because Mr. Moncrieffe-Belmar is charged with breaching a s. 110 weapons prohibition, contrary to s. 117.01(1) of the Criminal Code, there will necessarily be evidence of Mr. Moncrieffe-Belmar’s prior disreputable or criminal conduct. Because no such evidence will be led against Mr. Kazumba, the argument is that there is a risk to him that the prior disreputable conduct of Mr. Moncrieffe-Belmar will prejudice Mr. Kazumba in the eyes of the jury.

41Mr. Kazumba cited no authority in support of this submission. Given Mr. Kazumba’s intention to advance a defence of self-defence, I do not understand how evidence of Mr. Moncrieffe-Belmar’s prior discreditable conduct could harm Mr. Kazumba’s fair trial interests. If anything, that evidence would seem to assist Mr. Kazumba in establishing a defence of self-defence. I do not accept his submission on this point.

42While I accept that Mr. Kazumba would prefer to have his own trial, that is not the same thing as saying there is sufficient prejudice to Mr. Kazumba arising from a joint trial to demonstrate that the interest of justice require severance.

4. Inconsistent verdicts

43Mr. Kazumba submits that there is no possibility of inconsistent verdicts if he is granted a separate trial from Mr. Moncrieffe-Belmar. He correctly points out that he and Mr. Moncrieffe-Belmar face different charges, with different elements, and that whatever verdicts are reached, they cannot be inconsistent.

44I agree that whatever verdicts the jury renders, it would be difficult to characterize them as inconsistent. However, this factor does not support severance, it only means that if the accused had separate trials, there would be no risk of inconsistent verdicts.

45Separate trials raise not only the danger of inconsistent verdicts but also a real concern that the truth will not be discovered at either trial. The jury will face a difficult challenge getting to the bottom of what happened that day. If both Mr. Kazumba and Mr. Moncrieffe-Belmar were to be acquitted of all charges on the basis of self-defence, the interests of justice would be best served if those verdicts were reached by a single jury hearing all the evidence at one time.

5. The length of trial and the prejudice to Mr. Kazumba’s right to be tried in a reasonable time

46Mr. Kazumba submits that both accused will be tried within the Jordan ceiling and there is no risk of having either set of charges stayed for delay. The Crown did not disagree with this point.

47Mr. Kazumba submits that his trial will take less time if it is severed from Mr. Moncrieffe-Belmar’s trial and that both trials would be completed in less than the current time estimate. On the other hand, the Crown submits that if the trials are severed, the two trials will take longer in total than one joint trial.

48I accept the Crown’s submission on this point. I have no doubt that one joint trial will take less total time than two separate trials. I am also satisfied that Mr. Kazumba will receive a fair trial, even if he will not receive the separate trial that he would prefer. Because one trial poses no threat to his fair trial interests, I see no reason to incur the additional cost and time involved with two separate trials, perhaps both with a jury.¹⁸ The interests of justice include finding efficiencies and saving time and money, provided always that the accused is receiving a fair trial.

49Moreover, absent a compelling reason, Ms. Brooks and Ms. Butcher should not be required to testify twice about obviously traumatic events.

D. Conclusion

50Mr. Kazumba has not satisfied me that severance is required in the interests of justice. Mr. Kazumba has not demonstrated that there is a reasonable possibility that his right to make full answer and defence will be impaired if he cannot compel Mr. Moncrieffe-Belmar to testify at his trial. The other factors favouring severance relied on by the defence similarly do not demonstrate that a separate trial is necessary. Mr. Kazumba has not established that there is a reasonable risk that a joint trial will impair his right to a fair trial. In this case, society’s interest in a joint trial outweighs Mr. Kazumba’s desire to have a separate trial.

51The application is dismissed.

Robert Centa J.

Released: March 27, 2025

CITATION: R. v. Kazumba, 2025 ONSC 1903

Footnotes

1. 1Counts 1 and 2 of the indictment were preferred pursuant to s. 574 of the Criminal Code, R.S.C., 1985, c. C-46.
2. 2Counts 3 to 5 were preferred with the personal consent of the Deputy Attorney General for the Province of Ontario, pursuant to s. 577(a) of the Criminal Code. An indictment may join two accused even though one was ordered to stand trial and the other was named by way of direct indictment: R. v. Nielsen (1984), 1984 CanLII 3840 (MB CA), 30 Man. R. (2d) 81 (C.A.).
3. 3R. v. Jaser, 2024 ONCA 448, 172 O.R. (3d) 1, at para. 157;
4. 4R. v. Savoury (2005), 2005 CanLII 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 23.
5. 5Savoury; R. v. Atwima, 2022 ONCA 268, 161 O.R. (3d) 481, at para. 117; and R. v. Moore, 2020 ONCA 827, 153 O.R. (3d) 698, at para. 10.
6. 6R. v. Crawford, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858, at paras. 30 to 33.
7. 7R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449, at para. 87.
8. 8Jaser, at para. 157.
9. 9Jaser, at para. 158; see also R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 18; R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 29; and R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 73.
10. 10Savoury, at para. 27; R. v. Chow (2005), 2005 SCC 24, [2005] 1 S.C.R. 384, at para. 10; R. v. Boulet (1987), 1987 CanLII 849 (QC CA), 40 C.C.C. (3d) 38, at p. 42 (Que. C.A.); R. v. Torbiak and Gillis (1978), 1978 CanLII 2266 (ON CA), 40 C.C.C. (2d) 193, at p. 199 (Ont. C.A.); R. v. Agawa and Mallet (1975), 1975 CanLII 482 (ON CA), 11 O.R. (2d) 176, at p. 186 (Ont. C.A.).
11. 11Savoury, at para. 28.
12. 12Torbiak, at p. 199; Chow, at para. 11.
13. 13Agawa, at pp. 182-183
14. 14Agawa; R. v. H. (L.J.), 39 B.C.A.C. 47, at para. 45.
15. 15Durant, at para. 73; Last, at para. 18; R. v. Moore, 2015 ONSC 728, at paras. 149-150; and R. v. Hudson, 2018 ONSC 3198, at paras. 6-11, 22;
16. 16R. v. Moore, 2015 ONSC 728, at para 147.
17. 17R. v. Sher, 2012 ONSC 1792, at para. 15.
18. 18Jaser, at para. 189.