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| John L. Hill |
The security video was of poor quality, with no audio, as a fight broke out. During the confrontation, Kabuya-Ntumba punched Maadani, was pulled back, then broke free and ran toward him. Maadani fired five shots, hitting Kabuya-Ntumba four or five times, including once in the back; Kabuya-Ntumba fired once, hitting Maadani in the leg. Kabuya-Ntumba died hours later from blood loss. Maadani fled to Montreal, sought medical treatment claiming he was robbed and shot, and surrendered to police weeks later.
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The defence argued that Kabuya-Ntumba fired first, and Maadani’s rapid return fire was a reflexive act of self-preservation. Even if Maadani shot first, he acted in reasonable self-defence, believing he faced a lethal threat when Kabuya-Ntumba charged, likely already drawing his gun.
Maadani was charged with second-degree murder. He was convicted by a jury, and on May 24, 2022, he was sentenced to life imprisonment without the possibility of parole for 14 years. The trial judge accepted that Maadani retrieved his satchel containing a gun before any physical altercation and was prepared to use it before knowing Kabuya-Ntumba was armed. Maadani appealed to the Ontario Court of Appeal. The Court of Appeal’s decision was released on August 8, 2025 (R. v. Maadani, 2025 ONCA 582).
Maadani admitted to killing Kabuya-Ntumba by shooting him four or five times. However, he proposed introducing new evidence consisting of two affidavits from eyewitness Brightner Casseus and a law clerk, Kathryn Mongea, to resolve disputed issues in the self-defence claim. These included who started the fight, who drew a gun first and who fired first. The law clerk's affidavit explained why the evidence was not presented at trial.
In his affidavit, sworn in April 2023, Casseus stated that he was part of Kabuya-Ntumba’s group but not close friends; he did not know Maadani. Kabuya-Ntumba carried a gun that night and discussed robbing “an Arab guy,” who was later identified as Maadani. After leaving the bar, they chased other men with Kabuya-Ntumba’s gun drawn. Kabuya-Ntumba planned to find and rob Maadani.
Casseus was present during an argument with Maadani’s group, which led to a scuffle. Kabuya-Ntumba raised his gun during the fight, warning Maadani’s group. Despite Casseus’s efforts to pull him away, Kabuya-Ntumba — drunk and angry — declared he wanted to kill Maadani.
Breaking free, Kabuya-Ntumba drew his gun, aimed it at Maadani, and fired first; Maadani drew and fired back. Casseus left, believing Maadani would die, and later saw Kabuya-Ntumba pick up an object resembling his gun after it was dropped. He did not step forward earlier because he thought Maadani would be acquitted, only contacting defence counsel after learning of the life sentence.
The Appeal Court majority rejected the motion to introduce fresh evidence. It found Casseus’s evidence was rife with inconsistencies that strained credulity, and the video evidence contradicts some. Admission of Casseus’ affidavit was denied.
In explanation of its denial, the court accepted the test set out in R. v. Palmer, [1980] 1 S.C.R. 759 and further developed in Truscott (Re), 2007 ONCA 575, which requires consideration of three criteria: (1) admissibility under the rules of evidence; (2) cogency; and (3) due diligence. The majority found that, although admissible, Casseus’ affidavit lacked cogency.
Justice Grant Huscroft’s majority opinion went on to find that the jury had been adequately instructed on the law of self-defence and post-offence conduct. He found the sentence imposed was not demonstrably unfit.
In her compelling dissent, Justice Jill Copeland agreed that the jury had been properly instructed but disagreed with the majority in finding that the proposed fresh evidence of Casseus did not meet the criteria for admissibility. She determined a new trial was required.
Justice Copeland’s opinion was that whether the Casseus affidavit was believable was not for the Appeal Court to decide. Instead, the question to be asked is whether they could reasonably be believed by a trier of fact in the context of the trial evidence (R. v. Smithen-Davis, 2022 ONCA 832; R. v. Winmill (1999), 42 O.R. (3d) 582 (C.A.); R. v. Dudar, 2019 ONCA 115, 371 C.C.C. (3d) 323, at para. 33; R. v. P.G., 2013 ONCA 520.; R. v. Allen, 2018 ONCA 498),
Justice Copeland explained, “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.)”
The court’s majority discredited the Casseus statement because (i) his criminal record and his flight from Canada to avoid facing criminal charges; (ii) Casseus’ unclear motive for coming forward as a witness; (iii) the poor quality of his memory; and (iv) inconsistencies between Casseus’ evidence and the video evidence.
Justice Copeland rightly concluded, “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.”
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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