Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240501 DOCKET: COA-23-CR-0141

Benotto, Coroza and Dawe JJ.A.

BETWEEN

His Majesty the King Respondent

and

Peter Aiken Appellant

Counsel: Peter Aiken, acting in person Megan Stephens, appearing as duty counsel Erica Whitford, for the respondent

Heard: April 11, 2024

On appeal from the convictions entered on October 6, 2021, and the sentence imposed on October 31, 2022, by Justice Richard J. LeDressay of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals his convictions and sentence for the offences of discharging a firearm with intent to wound or intent to prevent arrest and attempted murder. [1] The charges arose from a violent encounter with police that took place in June of 2016. While the police were attempting to arrest him, the appellant pulled out a gun and fired several shots directly at them. One of the shots that the appellant fired was at the lower abdomen of one of the officers at a distance between the gun and the officer of 6 to 12 inches. Both officers returned fire and the appellant was eventually apprehended by other police officers and a police dog. The officers were not physically injured, but the appellant sustained significant injuries (seven gunshot wounds and a dog bite) which required hospitalization.

[2] The appellant claimed he was acting in self-defence when he shot at the police officers. The trial judge found that the appellant was aware that he was being lawfully arrested by the police at the time of the incident and that the appellant made the conscious decision to try to evade that arrest, since he had a loaded handgun on his person when he was under court order not to possess firearms. The trial judge also found that the police officers were acting lawfully when they tried to arrest the appellant, used reasonable force to arrest him, and complied with ss. 25, 26 and 34(3) of the Criminal Code, R.S.C. 1985, c. C-46.

[3] After setting out the elements of self-defence as defined in s. 34, the trial judge made the following findings:

I find that s. 34(3) is applicable in the circumstances of this case to negate the defence of self-defence. The police officers were authorized by law to arrest the defendant. The police were using a reasonable amount of force to do that given the defendant’s violent reaction to his apprehension. The defendant had no reasonable grounds to believe that the police were acting unlawfully.

In addition, even if s. 34(1) were to apply the force used by the defendant was not reasonable in the circumstances given the findings of fact that have been made, and then considering the factors as set out in s. 34(2).

[4] The appellant was sentenced to 15 years less 9 years, 7 months’ time served in presentence custody (credited on a 1.5 to 1 basis). The remaining sentence to be served was one of 5 years, 4 months, and 28 days.

[5] The appellant made his own submissions on the conviction appeal. Duty counsel, Ms. Stephens, assisted the appellant with his sentence appeal.

Conviction Appeal

[6] The appellant contends that the trial judge erred in his credibility findings, and that when assessing the appellant’s claim of self-defence, he misapprehended the appellant’s evidence concerning his past experiences as a young, mentally ill, Black man interacting with police. In essence, the appellant’s submission on appeal is that the trial judge failed to understand how the appellant’s subjective fear of the police explained his reaction to the officers’ use of force. He also argues that the verdicts were unreasonable.

[7] The appellant testified about how the incident unfolded and what he was thinking at the time of the encounter with the police. The trial judge did mention, in his review of the evidence, the appellant’s evidence concerning his experiences and knowledge about Black men and police interactions. While more could have been said about this evidence, in the end, we do not see any misapprehension of the appellant’s evidence. Reading his reasons as a whole, we are satisfied that there was no error committed by the trial judge in rejecting self-defense on the basis that several of the essential elements of the defence had been disproved, including the requirement in s. 34(3) that the appellant believed on reasonable grounds that the police were acting unlawfully; and the requirement in s. 34(1)(c) that the appellant’s response of firing several shots at the officers was reasonable in the circumstances.

[8] The trial judge made strong findings of credibility against the appellant. He specifically rejected the appellant’s evidence because, in his view, it was “so flawed, in and of itself, by evasiveness, embellishments, and most importantly by a lack of truthfulness”. We see no basis to interfere with the trial judge’s credibility findings. Again, the trial judge concluded that the appellant was motivated in his actions by the fact he had a firearm on his person that he was prohibited from possessing.

[9] In the end, the verdict is not unreasonable because we see no flaw in the trial judge’s careful evaluation of the evidence: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 75; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 44.

Sentence Appeal

[10] The trial judge found that the gravity of the offences could not be overstated. The trial judge also found that the appellant’s degree of responsibility and moral blameworthiness was high.

[11] On behalf of the appellant, Ms. Stephens argues that the reasons for sentence reveal several errors in principle and that this court should substitute a sentence of 13.5 years.

[12] Ms. Stephens’ primary submission is that the trial judge failed to give effect to the real collateral consequences suffered by the appellant: he was shot several times, including in his dominant hand, which was also bitten by a police dog during his arrest.

[13] We do not accept this argument. The trial judge specifically considered the collateral consequences suffered by the appellant. There is no rigid formula for taking collateral consequences into account, and there is no requirement that collateral consequences must reduce a sentence. The trial judge was mindful of the Supreme Court of Canada’s decision in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, but found the injuries the appellant sustained should not mitigate his sentence as they inevitably flowed from the appellant’s own conduct. The trial judge stated:

The collateral consequences suffered by the defendant in this case are significant, but the inevitability of these collateral consequences is apparent given the nature of these offenses. As such, the collateral consequences suffered by the defendant in this case are not a mitigating factor.

[14] Nor do we accept Ms. Stephens’ argument that the trial judge did not give sufficient weight to the anti-Black racism experienced by the appellant, who also suffered from mental health issues. The trial judge specifically found that these two issues did impact the appellant’s moral blameworthiness for the offences and that they contributed to the appellant making exceptionally poor decisions leading up to and during the offences. The trial judge then stated, at para. 116:

Therefore, I find that these factors slightly mitigate the defendant's moral culpability with respect to the two offences before the court. However, I am cognizant of what the Ontario Court of Appeal held in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641 at paragraphs 78 and 81, that the defendant still chose to engage in dangerous criminal conduct that compromised the security of the community, and that any sentence imposed must be proportionate to the offence and the offender.

[15] The trial judge acknowledged that the social context evidence provided valuable insight with respect to the need for specific deterrence and the appellant’s rehabilitative prospects. It was for him to decide how these factors would impact the sentence he imposed.

[16] Finally, we see no error in the trial judge’s assessment of the Duncan credit. [2] In his reasons, the trial judge reviewed the decision of this court in R. v. Marshall, 2021 ONCA 344, and reviewed the evidence of the appellant’s lockdown summary provided by the Maplehurst Correctional Complex. The trial judge recognized that the appellant’s lockdown conditions were a mitigating factor to be considered and not a “deduction” from an otherwise appropriate sentence: Marshall, at para. 52. He was not required to provide a certain amount of Duncan credit, nor to specify a quantity of credit as a deduction: Marshall, at para. 53.

[17] In sum, we see no error in the trial judge’s sentencing reasons.