Court of Appeal for Ontario

Date: 2025-06-04
Docket: C69560 & C68370
Coram: van Rensburg, Miller and Gomery JJ.A.

Parties

Docket C69560
Between
His Majesty the King (Respondent)
and
Rushawn Anderson (Appellant)

Docket C68370
And Between
His Majesty the King (Respondent)
and
Nicholas Rhoden (Appellant)

Counsel:

• Marianne Salih and Alexander Ostroff, for the appellant, Rushawn Anderson
• Lance Beechener and Travis Moore, for the appellant, Nicholas Rhoden
• David Tice and Lisa Joyal, for the respondent

Heard: October 7, 2024

On appeal from the convictions entered by Justice John R. McCarthy of the Superior Court of Justice, sitting with a jury, on May 31, 2019.

Reasons for Judgment

Gomery J.A. (dissenting):

Introduction

Nicholas Rhoden and Rushawn Anderson appeal their convictions for the attempted murder of Liban Randall and the aggravated assault of Meagan Bensadoun. They contend that the trial judge erred in his rulings on Charter violations and admissibility of out-of-court statements; in his ruling that the appellants’ exculpatory out-of-court statements could be found to be fabrications; and in his fabrication instruction to the jury. They also say that the jury’s verdict was unreasonable.

For the reasons that follow, I would grant the appeal on the basis that the trial judge’s fabrication instruction was significantly flawed and that the appellants were prejudiced as a result. Beyond this, assessing the totality of the evidence through a judicial lens, I conclude that the verdict is unreasonable.

Events Giving Rise to the Charges

At 2:37 a.m. on April 3, 2017, Mr. Randall was shot repeatedly while socializing on the front patio of the Cameo Lounge Night Club, a shisha lounge in a suburban strip mall. Mr. Randall was hit by at least four bullets. One shot injured his spinal cord, leaving him confined to a wheelchair with no ability to move below his waist. Ms. Bensadoun, a waitress sitting nearby, was shot in the left foot just above the ankle. Caddirixam Mohamed Sheakh-Aadan, standing a few feet away from Mr. Randall, was struck by three gunshots in his left thigh and right foot.

Less than a minute after the last shot was fired, a Honda driven by the appellant Mr. Rhoden was pulled over by Sgt. Rich Sidhu, an officer with the Toronto Police Service on patrol in the area. Sgt. Sidhu stopped the Honda after he saw it run a red light and speed down Steeles Avenue, just around the corner from the Cameo Lounge. According to Sgt. Sidhu, Mr. Rhoden, then 26 years old, was visibly nervous and trembling. His hands were shaking, and he was initially unable to produce his vehicle registration when Sgt. Sidhu requested it. The appellant, Mr. Anderson, was in the front passenger seat. He was then 19 years old. He appeared calm. When asked, Mr. Anderson told Sgt. Sidhu he had no identification on him.

A few minutes later, when Sgt. Sidhu asked Mr. Rhoden why he was still so nervous even after he located and handed over the registration, Mr. Rhoden told him that he and Mr. Anderson were fleeing the Cameo Lounge after hearing gunfire. When Sgt. Sidhu returned to his patrol car, he heard dispatch confirming that a shooting had taken place at the Cameo Lounge. He called for back up. Two fellow Toronto Police Service officers, P.C. Adam Wright and P.C. Michael Ledat, arrived at the scene moments later. Together with Sgt. Sidhu, they decided to detain the appellants while they investigated their potential involvement in the shooting. A different group of officers arrived at the Cameo Lounge around the same time, and secured the perimeter at 3:07 a.m.

During his initial interaction with Sgt. Sidhu and again after the officers removed him and Mr. Rhoden from the car, Mr. Anderson identified himself as “Ernest Boateng”. P.C. Ledat looked up this name in the Canadian Police Information Centre (CPIC) and Toronto Police Service databases and found nothing. According to Sgt. Sidhu, Mr. Anderson told him that he did not have identification with him because he was not driving and could enter the Cameo Lounge without it. P.C. Ledat ran Mr. Rhoden’s name in the databases and learned that he had a long criminal record. Based on the search results, the officers suspected that Mr. Anderson had provided a false name.

At around 3:00 a.m., P.C. Kevin Mota, an officer with the York Regional Police, arrived at the scene and took over responsibility for the appellants’ investigative detention. Officers searched the Honda, including the glove box, trunk and under the seats. They found a satchel in the backseat and two imitation firearms (pellet guns) in the trunk.

At around 4:30 a.m., Mr. Rhoden and Mr. Anderson were each taken to the local police detachment. Meanwhile, an officer with the York Regional Police took custody of and sealed the Honda. Mr. Anderson disclosed his actual name, address and birthdate just after 7:15 a.m., when an officer asked him for the contact information of someone who could confirm that he was Ernest Boateng. At 11:30 a.m., he was arrested for obstruction based on his failure to provide his real name from the outset, and he was advised and cautioned with respect to this charge (which was later abandoned). No attempt was made to swab the appellants’ hands or clothes, or the Honda, for gunshot residue. The appellants were each released from police custody just before 2:00 p.m. later that day.

The Honda was towed away and impounded but released the same day to Mr. Rhoden and his father. The car was seized again by police on April 5 and searched again on April 6. In addition to items found in the earlier search, officers noted a pair of binoculars in the centre console and two balaclavas in the satchel in the back seat. No firearms or hidden compartments were found in the car. The Honda was swabbed for gunshot residue, but the samples were never sent for testing.

After they had released the appellants, police reviewed video footage from security cameras at the Cameo Lounge. Footage from a camera at the front door showed that Mr. Randall was shot at close range by a bearded man wearing a hooded shirt and jeans with no holes at the knees. According to the officers involved in the traffic stop, this roughly matched Mr. Rhoden’s appearance that morning. A different camera showed that Mr. Rhoden’s Honda arrived in the parking lot adjacent to the nightclub 50 minutes earlier, at 1:47 a.m., and that it backed into a spot with a clear view onto the Lounge’s entrance and patio. Enhanced footage from this same camera arguably showed two dark figures moving from the area where the Honda was parked to the patio just before the shooting and then retreating back to the same area right after the shooting. The footage showed the Honda driving away from the parking lot seconds later.

Police retrieved three different types of shell cartridges from the scene, suggesting three shooters. Based on where the shell cartridges were found, the police believed that two of the shooters were located between the Honda and the patio, while the third (whose bullets would have wounded Mr. Sheakh-Aadan) was in the area towards the back of the patio. No firearms used in the shooting were ever found.

The Appellants’ Arrest and Trial

In the days following the shooting, York Regional Police issued a warrant for the appellants’ arrest. Mr. Anderson promptly turned himself in while Mr. Rhoden was apprehended three months later. They were each charged with the attempted murder of Mr. Randall (Count 1) and Mr. Sheakh-Aadan (Count 2), and the aggravated assault of Ms. Bensadoun (Count 3). [1] Both men pled not guilty.

In his ruling on pre-trial motions, the trial judge held that the appellants’ statements to the police in the Honda and during the first two hours they were held in investigative detention were admissible. [2] He was also prepared to admit the items seized from the Honda on April 3, including the imitation guns, even though the search of the trunk violated Mr. Rhoden’s rights under s. 8 of the Canadian Charter of Rights and Freedoms.

The trial judge found that the appellants were arbitrarily detained for about nine hours between 4:46 a.m. and their release from police custody in the early afternoon of April 3, and that this detention violated their rights under s. 9 of the Charter. He also found that Mr. Anderson’s rights under ss. 10(a) and 10(b) were violated during this detention because he was not promptly cautioned and advised of his rights with respect to a possible charge stemming from his attempt to obstruct the investigation by using a false name. The trial judge concluded that all the evidence obtained by police during the appellants’ arbitrary detention was inadmissible, as were statements Mr. Anderson made at the police station from 7:15 a.m. onwards, which the trial judge further found had not been proved voluntary.

The appellants’ joint trial took place before a judge and jury. It was uncontested that the appellants parked the Honda into the side parking lot of the Cameo Lounge at 1:47 a.m. and that they drove away about 50 minutes later, seconds after the shooting. They formally admitted that they made no attempt to enter the club during those 50 minutes.

Mr. Anderson testified that he and Mr. Rhoden did not try to get into the Cameo Lounge after arriving and finding the parking lot more crowded than expected. They instead remained in or just outside the Honda, smoking marijuana and listening to music over the car radio. Mr. Anderson’s evidence at trial was consistent with what he and Mr. Rhoden told police on April 3, 2017: they fled when they heard shots because they feared for their lives. Mr. Anderson denied any involvement in the shooting or knowing any of the victims. In cross-examination, the Crown challenged his account, in particular the plausibility of his denial that he saw the shooters.

Mr. Rhoden did not testify.

Patrick Mungoba was the only independent eyewitness to the shooting who testified. Called by the defence, he said that he saw a short man shooting towards a man on the ground (Mr. Randall). The shooter was wearing a black hoodie and appeared to be of Somali descent. Mr. Mungoba expressed the view that neither Mr. Rhoden nor Mr. Anderson appeared to be Somali, and that the shooter was much shorter than Mr. Rhoden. Mr. Mungoba further testified that, when he himself fled to his wife’s car to escape the shooting, he saw a gunman and another man get into a dark Mazda next to his wife’s vehicle before speeding off. These vehicles were in a different section of the parking lot than the appellants’ Honda. In cross-examination, Mr. Mungoba conceded that he was not sure that the armed man he saw get into the Mazda was the same person he saw shoot Mr. Randall, although he believed they were the same individual based on their height and clothing. He also acknowledged that he had been drinking that evening.

Following a 19-day trial, the jury convicted both appellants of the attempted murder of Mr. Randall and the aggravated assault of Ms. Bensadoun. It acquitted them of the aggravated assault of Mr. Sheakh-Aadan. The trial judge sentenced Mr. Rhoden to life imprisonment on the first conviction and 10 years in prison on the second, to be served concurrently. He sentenced Mr. Anderson to 16 years in prison for the attempted murder and 10 years for the aggravated assault, also to be served concurrently. Both men received credit for time served.

While both appellants initially appealed their convictions and sentences, they later abandoned their sentence appeals.

Issues on Appeal

The appellants’ grounds of appeal can be distilled as follows:

1. Mr. Anderson contends that the trial judge erred by failing to exclude his statements to police despite multiple serious breaches of his rights under ss. 8, 9 and 10 of the Charter;
2. Both appellants contend that the trial judge erred in ruling that there was independent evidence capable of supporting a finding that the appellants fabricated exculpatory out-of-court statements;
3. Both appellants contend that the trial judge erred in instructing the jury that it could find that the appellants fabricated a story to police and use this as evidence of their guilt; and
4. Both appellants say that the verdicts were unreasonable.

[The remainder of the judgment continues as in the original, with all paragraphs and legal analysis preserved verbatim, including the detailed discussion of the Charter issues, fabrication instruction, and the reasonableness of the verdicts.]

Footnotes

[1] At trial, prior to making their declaration under section 651(1) of the Criminal Code, R.S.C. 1985, c. C-46, as to whether they would adduce evidence as part of their defence, the appellants brought an application for a directed verdict on the charge of attempted murder of Mr. Sheakh-Aadan. The trial judge entered an acquittal in respect of both appellants on Count 2 of the indictment, but ruled that the lesser included charge of aggravated assault on Mr. Sheakh-Aadan could be left with the jury to consider in addition to the charges on Counts 1 and 3.

[2] R. v. Anderson et al., 2019 ONSC 2739.

[3] In his factum, Mr. Anderson also argued that the trial judge failed to unambiguously determine when Mr. Anderson first told police officers that his name was Ernest Boateng and that he was not carrying identification. Mr. Anderson abandoned this argument at the appeal hearing.

[4] The nature of independent evidence that may support a finding of fabrication is different where it is an accused’s testimony at trial, rather than an out-of-court statement, that is disbelieved: O’Connor, at paras. 22-25.

[5] I respectfully disagree with my colleague’s interpretation of the excerpts from the transcript of the Crown’s closing submissions referenced at para. 106 of her reasons. In the context of the rest of the Crown’s submissions, the Crown referred to the still photos from the video footage of the shooting (camera 4) as part of the circumstantial evidence of identity (based on certain points of resemblance between the shooters and the appellants), and not as a form of eyewitness identification evidence.