COURT OF APPEAL FOR ONTARIO

DATE: 20210629 DOCKET: C67843

Hourigan, Paciocco and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Ayanle Aden Appellant

Counsel: Mindy Caterina, for the appellant Avene Derwa, for the respondent

Heard: June 24, 2021 by video conference

On appeal from the convictions entered on June 28, 2019 and the sentence imposed on October 4, 2019 by Justice A. Duncan Grace of the Superior Court of Justice.

REASONS FOR DECISION

OVERVIEW

[1] On August 29, 2017, a pedestrian and one or more occupants of an unidentified motor vehicle exchanged gunfire in the parking lot of a London residential complex. After a trial by judge alone, Ayanle Aden was found to have been the pedestrian shooter. He was convicted of discharging a firearm with intent to endanger life, four possession-based firearms offences, and two counts of breach of recognizance. He was also found guilty on two further firearms offences which were conditionally stayed to avoid double jeopardy.

[2] Mr. Aden appeals his convictions and those findings of guilt. He also seeks leave to appeal his sentence.

[3] At the conclusion of the oral hearing, for reasons to follow, we denied Mr. Aden’s conviction appeal, granted him leave to appeal his sentence, but also denied his sentence appeal. These are our reasons.

ANALYSIS

(a) The Conviction Appeal

[4] With respect to his convictions, Mr. Aden argues that: (i) the trial judge committed errors relating to the evidence of witness Sarah Gervais; (ii) the verdict was unreasonable; (iii) the trial judge erred by relying on stereotype to reject Mr. Aden’s mother’s evidence; and (iv) the trial judge erred in his treatment of the defence of self-defence. We will address each ground of appeal in turn.

(i) No errors occurred relating to the Gervais statement

[5] Mr. Aden argues that the trial judge erred by relying on the unsworn and unadopted police statement of Ms. Gervais, and that he erred by not reconciling inconsistencies between Ms. Gervais’ police statement and her preliminary inquiry testimony. It is convenient to begin with the latter submission.

[6] We do not accept that the trial judge erred by failing to reconcile material inconsistencies between Ms. Gervais’ police statement and her preliminary inquiry testimony, which together served as Ms. Gervais’ evidence at the trial. We accept that the failure of a trial judge to resolve material inconsistencies in the evidence of a material witness can constitute reversible error. However, we are not persuaded that such a failure occurred here. On critical examination, few of the alleged inconsistencies Mr. Aden identifies are, in fact, inconsistencies. It is telling that Mr. Aden’s trial counsel did not expressly challenge the consistency of Ms. Gervais’ evidence in his trial submissions. The few material discrepancies that did exist, relating to Ms. Gervais’ description of the man found to be the shooter, were answered sufficiently by the trial judge’s finding that Ms. Gervais’ vision was impaired. That finding was open to the trial judge on the evidence.

[7] We also reject the suggestion that the trial judge erred in accepting some of what Ms. Gervais said. All his findings relating to her evidence were adequately explained, and within his purview as the trier of fact.

[8] Nor do we accept Mr. Aden’s submission that the trial judge erred by relying on Ms. Gervais’ unsworn and unadopted police statement. It was not necessary for Ms. Gervais to have adopted her police statement in her preliminary inquiry testimony because her police statement was admitted as evidence at the trial, along with the preliminary inquiry testimony, with the consent of Mr. Aden’s trial counsel. Appeal counsel for Mr. Aden concedes that his trial counsel made this choice for tactical reasons. Indeed, trial counsel relied on the truth of the contents of Ms. Gervais’ police statement in defending Mr. Aden.

[9] We reject Mr. Aden’s submission that this was one of those rare cases where the trial judge should have interfered with a tactical decision by counsel, as contemplated in R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at paras. 36-37. We see no merit in the submission that Ms. Gervais’ statement was so wrought with inconsistency, and so important, that the trial judge should have exercised his gatekeeping function to protect Mr. Aden from what his trial counsel considered to be a tactical advantage.

(ii) The verdict was not unreasonable

[10] Mr. Aden also urges in his factum that his conviction was unreasonable. During oral submissions, Mr. Aden’s appeal counsel appeared to acknowledge that if Ms. Gervais’ police statement was properly admitted, his conviction would not be unreasonable. We have found that the statement was properly admitted. If we understood appeal counsel correctly, this ground of appeal could be rejected based on that concession.

The circumstantial evidence against Mr. Aden was powerful

[11] But more should be said in case we have misunderstood the purport of appeal counsel’s submission. In our view, the circumstantial case against Mr. Aden was so formidable that, even if Ms. Gervais had never given evidence, this ground of appeal would not have succeeded.

[12] At trial, both parties agreed that the pedestrian shooter was the man who had called the taxicab from a phone number ending in 8414 immediately before the shooting, using the name “Rob”. On August 28, 2017, the day before the shooting, another taxicab was called from the same 8414 phone number used by “Rob” on the day of the shooting. Mr. Aden is the person who entered the taxicab on August 28, and that same 8414 phone number had been used frequently in the recent past to secure taxicab rides for “Rob”.

[13] The video surveillance images from Mr. Aden’s taxicab ride the day before the shooting showed Mr. Aden wearing a dark-coloured Jordan brand hooded sweatshirt (“hoodie”) and a black backpack. Those items were identical in design and brand to a hoodie and backpack that were later found in the immediate area of the shooting. The hoodie had gunshot residue on it, as well as Mr. Aden’s DNA.

[14] There is no question that the recovered backpack was linked to the shooting. A witness saw the shooter retrieve the gun from the backpack and then drop the backpack when he began to fire. The backpack had 9mm shells in it, consistent with shell casings left at the scene of the shooting, and with the handgun that was recovered in the area, which had been fired that day.

[15] A cellphone with a phone number ending in 1555, registered to Mr. Aden, was found shortly after the shooting in the parking lot where the shooting had occurred. There is also no question that the 1555 cellphone was linked to the shooting; the shooter was seen dropping it when he dropped the backpack.

[16] It is also agreed that Mr. Aden was in the area of the shooting a few minutes after it occurred. A witness saw a man in a white t-shirt and black shorts, whom Mr. Aden’s trial counsel suggested was Mr. Aden, leaving the property through a laneway close to where the abandoned handgun was ultimately found in a trashcan.

[17] When he was observed leaving the property, Mr. Aden was walking towards the neighbourhood Walmart. Moments later, Mr. Aden was captured by security cameras buying items inside the Walmart. Surveillance video depicted him wearing long dark pants and sunglasses as he left the store. The trial judge was entitled to treat this abrupt change in appearance as incriminating after-the-fact evidence.

[18] Quite simply, notwithstanding the frailties of the eyewitness identification evidence, the case against Mr. Aden was powerful, even without Ms. Gervais’ evidence. The verdict was not unreasonable.

(iii) The trial judge did not err in rejecting Mr. Aden’s mother’s testimony

[19] The trial judge did not err in rejecting the testimony of Mr. Aden’s mother, who said that Mr. Aden is not capable of conversing in Somali, only in English. This alleged fact, if true, would have stood against the trial judge’s conclusion that Mr. Aden was “Rob”. However, the trial judge did not accept it.

[20] In coming to this conclusion, the trial judge did not rely on stereotype about the linguistic abilities of new Canadians. There was a basis in Mr. Aden’s mother’s testimony for questioning her claim, including her testimony about the degree of exposure Mr. Aden had to the Somali language, and her acknowledgement that Mr. Aden’s older siblings had learned to speak Somali in the home. There was also a strong circumstantial record that enabled the trial judge to conclude that Mr. Aden was “Rob”, whom Ms. Gervais said had been speaking a foreign language which she believed to be Somali. The trial judge was entitled to prefer that testimony to the evidence of Mr. Aden’s mother.

(iv) The trial judge did not err in his treatment of self-defence

[21] Finally, Mr. Aden argues that the trial judge erred in his treatment of the defence of self-defence. We need not determine whether the trial judge was correct in finding that there was no air of reality to the third component of the self-defence test, because the trial judge went on to consider self-defence in any event, rejecting it on its merits.

[22] In our view, the trial judge was entitled to find that Mr. Aden’s act of firing a handgun repeatedly in a populated area while running after the vehicle as it left the scene, instead of seeking available cover, removed any reasonable doubt about whether he had used reasonable force in self-defence.

(b) The Sentence Appeal

[23] We grant Mr. Aden leave to appeal from his global eight-year custodial sentence but deny the sentence appeal.

[24] We are not persuaded that the trial judge failed to consider, as a mitigating consideration, that Mr. Aden fired the weapon for the purpose of defending himself from a person who was shooting at him. The trial judge affirmed in his reasons for sentence that he had considered the circumstances of the offences, and mentioned expressly that Mr. Aden would not have used the handgun “had he not encountered the individuals with whom he engaged”, that Mr. Aden had not planned the shooting, and that “bullets were flying in opposite directions”.

[25] When taken in context, it is clear the trial judge fully considered Mr. Aden’s purpose in using the handgun. However, any mitigating force of that purpose was overtaken by the fact that, having already served a prior penitentiary sentence for a firearms offence, Mr. Aden unreasonably and repeatedly discharged a handgun – a weapon he was prohibited from possessing – in an area where there were innocent bystanders, before discarding the handgun in a publicly-accessible place.

[26] The sentence imposed was entirely fit.

CONCLUSION

[27] We therefore dismiss Mr. Aden’s appeal from conviction. His sentence appeal is also dismissed.

“C.W. Hourigan J.A.”

“David M. Paciocco J.A.”

“B. Zarnett J.A.”