ONTARIO COURT OF JUSTICE
DATE: 2025-01-06
COURT FILE No.: Toronto, No. 23-70006761
BETWEEN:
HIS MAJESTY THE KING
— AND —
ABDISATAR ADEN
Sentencing Judgment
Before Justice Brock Jones
Heard on June 13, 2023, and December 10, 2024
Reasons for Judgment released on January 6, 2025
Counsel:
D. Pyper — counsel for the Crown
D. Embry / P. Socka — counsel for Mr. Aden
Introduction
[1] On October 11, 2022, Amadou Suwareh, only 18 years old, was shot three times outside of Moss Park in downtown Toronto. He suffered life-threatening injuries. Mercifully, he survived.
[2] On June 12, 2023, a preliminary hearing in this matter commenced. The Crown’s primary witness, Mr. Suwareh, did not attend despite being served with a subpoena. I issued a material witness warrant for his arrest. Officers located him the same day and brought him to court.
[3] The next day, Abdisatar Aden re-elected to be tried in the Ontario Court of Justice and pleaded guilty to four offences:
- Discharge firearm endangering life, contrary to Criminal Code section 244(1);
- Aggravated assault, contrary to Criminal Code section 268(2);
- Possession of a loaded, prohibited firearm contrary to Criminal Code section 95(1); and
- Possession of a firearm contrary to a prohibition order made under section 109 of the Criminal Code, contrary to Criminal Code section 117.01.
[4] Sentencing was adjourned to obtain an Enhanced Pre-Sentence Report (“EPSR”) from the Sentencing and Parole Project. Unfortunately, the report took well over a year to complete.
[5] On December 10, 2024, a sentencing hearing was conducted. I reserved my decision. These are my written reasons.
Facts In Support of the Guilty Pleas
[6] A detailed agreed statement of facts was filed the day Mr. Aden pleaded guilty. I have summarized its contents for this decision.
[7] On the afternoon of October 11, 2022, TPS Officer Gholamali and Jennifer Wellman, a Mobile Crisis Intervention Team Nurse, were travelling eastbound on Shuter Street in Toronto. As they approached Sherbourne Street, near Moss Park, they heard gunshots.
[8] They attended to the scene. Nurse Wellman located Amadou Suwareh lying on his back on the west side of Sherbourne Street. He suffered three gunshot wounds - one each to his chest, abdomen, and arm. Emergency Medical Services arrived at 5:14 p.m. Mr. Suwareh was taken to St. Michael’s Hospital. He required emergency surgery.
[9] PC Gholamali observed Mr. Aden approaching 155 Sherbourne Street. A pedestrian pointed out Mr. Aden. PC Gholamali noticed Mr. Aden was holding a black firearm. Mr. Aden ran north and east through a laneway in between 149 and 155 Sherbourne Street. During the foot pursuit, Mr. Aden dropped the firearm. He was arrested after a short time.
[10] Mr. Aden was transported to 51 Division. He was searched. Officers located 11.08 grams of crack cocaine, which he possessed for the purpose of trafficking.
[11] Forensic Identification Officers attended the division and swabbed Mr. Aden’s hands. Those swabs were submitted to the Centre of Forensic Sciences. An analysis of the swabs located the presence of at least one gunshot residue particle.
[12] PC Velasco arrived at Sherbourne and Queen St. at 5:15 p.m. A male person directed him to a garbage bin. Inside this bin, he located a loaded, black, 9mm Glock luger handgun. The firearm was seized. A subsequent examination revealed there were 14 rounds of ammunition in an overcapacity magazine capable of holding 17 rounds. The firearm was equipped with a fire selector switch that could change the firearm's action from semi-automatic to fully automatic.
[13] PC Fenech attended the scene and located three shell casings in the area where Mr. Suwareh was located.
[14] At the time of these offences, Mr. Aden was prohibited from possessing any firearms for life due to a Criminal Code section 109 weapons prohibition order imposed by Justice Borenstein of the Ontario Court of Justice on November 14, 2019.
[15] Mr. Suwareh remained in the ICU for eight days and at the hospital for three weeks. He sustained a severely displaced fracture of his right humerus, a grade II laceration of the right liver lobe measuring 2.9 cm, a grade IV acute traumatic injury to his right kidney, and a lacerated lung and diaphragm that resulted in a lung collapse. He required two surgeries. He continues to suffer from limited mobility in his right hand due to the fracture of his right humerus.
Video Exhibits
[16] During the sentencing hearing, Mr. Pyper played video surveillance footage. A camera mounted on a building in the area did not record the shooting itself but did record the accused, victim, and other persons immediately afterwards as they came into its view. Mr. Suwareh can be seen stumbling around until he collapses near the corner of Queen St and Sherbourne Street. At the time of the shooting, there were several other men present, all of whom were visibly startled once the firearm was discharged. Some fled the area, presumably out of fear for their own safety.
[17] Mr. Pyper also played the body-worn camera footage of Officer Gholamali after he began his pursuit of Mr. Aden, who ran from the scene of the shooting. Mr. Aden threw the firearm away, and Officer Gholamali was unable to retrieve it immediately as he raced to catch Mr. Aden.
Prior Criminal Record
[18] Mr. Aden has a criminal record which consists of two entries. On April 11, 2018, he was found guilty of robbery and sentenced to an effective 5-month sentence followed by 15 months’ probation and a mandatory section 109 prohibition order.[1] On November 14, 2019, he was found guilty of careless storage of a firearm, possession of a firearm contrary to a prohibition order, and possession of a loaded prohibited or restricted firearm. He was sentenced to 24 months in jail in addition to credit for 533 days of pre-sentence custody. Another section 109 order was imposed as well.
Background of the Offender
[19] Mr. Aden is 32 years old. He was born on June 1, 1992, in Nairobi, Kenya. He is the oldest of six children. He has the same father as one of his brothers. The remaining siblings result from his mother’s relationship with his stepfather. Mr. Aden has been in a relationship with his girlfriend since 2019, but they do not have any children.
[20] His mother is Ms. Deqo Garad. She was born and raised in Mogadishu, Somalia. Following the inception of a civil war in 1992, she fled to Kenya. She migrated to Canada in 1993 and settled in Toronto in a shelter. After two months, she secured subsidized housing in Regent Park.
[21] Mr. Aden reported that his childhood was generally positive. He has a good relationship with his mother, who worked hard to provide for the family. Mr. Aden was a role model to his younger siblings and cared for them as much as possible.
[22] When he was 18 years old, an investigation was commenced by a Children’s Aid Society. As a result, he became the legal guardian of his five siblings. His mother and stepfather were not permitted to reside in the home. If he had not stepped up to protect his siblings, they would have been placed in a foster home. After about one year, his mother returned home, and the investigation was closed. His mother and stepfather ended their relationship.
[23] There was a dramatic change in his family’s financial situation at this time. His mother struggled to support the family as a single parent. They could pay the rent and survive, but it wasn't easy. Mr. Aden learned from his mother the value of hard work and managing household finances.
[24] Most of the families in Mr. Aden’s immediate neighbourhood lived in poverty. His mother expressed concern that “everyone” was “poor and struggling.”
[25] Mr. Aden was exposed to violence, drug activity and a heightened police presence from an early age. Starting at 12 or 13, he lived with constant fear. He saw black men getting “jumped” or engaging in fights, sometimes including guns. He and a friend would run when they saw a car making a U-turn out of concern that a drive-by shooting would inevitably follow. He knew people who were killed before they reached 16. This had a traumatic effect on him.
[26] His mother confirmed that gun violence was a prevailing issue in the neighbourhood. She recalled hearing gunfire and seeing casualties on the streets. She described the poor conditions of Regent Park and the minimal opportunities for its residents. After Regent Park began revitalizing around 2006, unfortunately, matters did not improve for her family. To some extent, she felt the neighbourhood had been gentrified, and poor, black members of the community were still unfairly singled out by the police, often for minor issues.
[27] Similarly, Mr. Aden felt that the lack of opportunity for men such as himself in Regent Park contributed to the likelihood he would become involved in criminal activity. He was exposed to men engaged in crime and it shaped his perspective on “the world for what it really was.” He struggled to make positive life choices without a supportive male role model. He accepted that he made “some bad decisions.”
[28] He witnessed the police in Regent Park treating black youth very poorly. They would harass people and try to instill fear into them. It is clear from how he described his teenage years that he felt he and his friends were racially profiled and often accused of being involved in criminal activity when there was no basis to make such an accusation. One of his close friends, Ms. S. Tesfamariyam, divulged that the impact of anti-black racism by the police negatively affected Mr. Aden and how he functioned within the community.
[29] Mr. Aden did not finish high school. He dropped out after grade 11. At that point in his life, he had taken on significant responsibility at home for his younger siblings and needed to contribute financially to the household. At 22, he enrolled in the City Adult Learning Centre and obtained four credits, but struggled to do so and chose to discontinue his education. Since he has been detained in jail, he has been waiting to complete his high school credits, but the appropriate program has not been made available to him yet.
[30] Before his arrest on the index offences, Mr. Aden worked various jobs. These include landscaping, security, and a catering company.
[31] Regarding the offences before the court, Mr. Aden explained to the author of the EPSR that he was holding the firearm “for protection,” as he had been shot in the past and felt threatened. On the day of the shooting, he witnessed a fight and saw the victim “grip up on the gun” and then impulsively shot him. He claimed he “just reacted.”
Victim Impact Statement
[32] Mr. Saikou Suwareh, the father of Amadou, filed a victim impact statement. He explained that he brought his family to Canada in search of a better life. The offences have greatly affected them all. They avoid being seen by anyone who may ask them about the shooting. It was “traumatic,” and they are trying to put it behind them, but Mr. Suwareh feels anxious every time his son ventures into the city.
[33] Amadou has permanent scarring from where he was shot. He “isn’t the same person anymore.” He lacks motivation, staying in his room most of the time, and now shows little interest in his prior passions, such as sports and school. Mr. Suwareh fears that his son’s mental health has not truly recovered.
Mr. Aden’s Allocution
[34] Mr. Aden read a prepared statement to the court. He has had time to reflect on the shooting. He has thought about what caused him to commit the offences and what went wrong in his life. He thinks about the effect it had on everyone in the community, including the victim and his family. He knows he caused trauma to Mr. Suwareh and is reminded of that every day. He prays to be forgiven.
[35] He wishes he could take back his actions and hopes to learn from this terrible mistake. He knows that he could have taken his victim’s life, but also that he placed his own life in danger too.
Position of the Parties
[36] Mr. Pyper originally sought a global sentence of 11 years of incarceration on behalf of the Crown. In his submission, the discharge with intent and aggravated assault counts justify a sentence of 10 years each, concurrent to one another. He sought a consecutive sentence of one year for the offence of possessing a firearm in contravention of a prohibition order, and a concurrent sentence of six years on the unlawful possession of a loaded prohibited or restricted firearm count.
[37] Mr. Pyper noted that the teenage victim was shot three times at point-blank range. He was defenceless. He required multiple surgeries to recover from his injuries and nearly died.
[38] Mr. Aden has a prior criminal record and was subject to two separate firearms prohibition orders at the time of the shooting.
[39] Mr. Pyper provided me with a chart of prior sentencing authorities from various courts in Ontario. Mr. Pyper submitted that his position is well within the established range for cases of a similar nature.
[40] Mr. Embry submitted a sentence of six to seven years is sufficient to meet the applicable sentencing principles given the relatively early guilty plea. While his client’s actions were unwarranted, and he is not advancing any claim of self-defence, Mr. Embry asks me to consider the context of this incident. The video the Crown relies upon also shows five men in the vicinity of his client before the shooting. Some were dressed in masks with their hoods up. Mr. Aden may have experienced an “unreasonable perceived threat” and decided to shoot suddenly. It was not a pre-meditated decision.
[41] Mr. Aden has had a difficult life. He was born in a refugee camp and has been surrounded by and affected by violence since he was a child. He has internalized this trauma and his experiences with systemic racism while growing up in Regent Park. Mr. Aden will carry the impact of these difficulties with him for his entire life. His perception of a threat must be understood by considering his personal history.
[42] While it was not lawful for him to possess or discharge a firearm, he carried it with him out of a perceived need for protection. That should be considered when assessing his moral culpability.
[43] Mr. Embry provided five cases to consider and submitted that an appropriate sentence should fall at the lower end of the accepted range for this offence. Mr. Aden has expressed remorse and has received support from his family. He is still a relatively young man, and his rehabilitation remains an important sentencing goal.
Aggravating and Mitigating Factors
[44] I find the following aggravating factors have been proven beyond a reasonable doubt:
- Mr. Aden discharged a loaded, prohibited firearm in a public place where members of the public were present and could reasonably be expected to be present;
- The firearm was modified to allow it to fire in a fully automatic fashion;
- It had an overcapacity magazine;
- Mr. Suwareh suffered life-threatening injuries;
- Mr. Suwareh was unarmed and defenceless;
- Mr. Aden has a prior criminal record for both crimes of violence and firearms-related offences;
- Two weapons prohibition orders bound him; and
- He possessed a quantity of crack cocaine for the purpose of trafficking.
[45] Several mitigating factors must also be considered:
- Mr. Aden entered a guilty plea after one day of the preliminary hearing;
- Mr. Suwareh did not wish to testify and was an uncooperative witness, which may have presented some difficulty for the Crown at the preliminary hearing and trial;
- Mr. Aden has expressed remorse for the harm he caused to Mr. Suwareh;
- He has the love and support of his mother, siblings, partner and close friends; and
- Social-context evidence explains how systemic racism and disadvantage impacted him while growing up in Regent Park.
Sentencing Law
1) General Principles and Firearms Related Offences
[46] Sentencing “is a highly individualized process” requiring “a delicate balancing of the various sentencing principles and objectives”: R. v. Suter, 2018 SCC 34, para. 4. Those principles include general and specific deterrence, denunciation, and the need to separate offenders from society where appropriate. They also include rehabilitation and, in some circumstances, restraint.
[47] The fundamental principle of sentencing, as required by Criminal Code section 718.1, is that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” Sentencing must follow an individualized process, which requires the sentencing court to consider all relevant facts, including the “status and life experiences” of the offender: R. v. Parranto, 2021 SCC 46, para. 44.
[48] In firearms-related cases, the sentencing principles of general deterrence and denunciation are given priority. The message must be communicated to the public that these offences will not be tolerated, and the punishment for committing them will be severe. The Ontario Court of Appeal has repeatedly denounced firearms violence and the incalculable toll it has taken on the safety and security of the citizens of Toronto.
[49] In R. v. Danvers, 2005 ONCA 30044, para. 77, the Ontario Court of Appeal wrote:
Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns ... Society must be protected from criminals armed with deadly weapons.
[50] In R. v. Brown, 2010 ONCA 745, para. 14:
Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.
[51] In R. v. Small, 2023 ONSC 6841, para. 29, Justice Schreck of the Superior Court of Justice noted that “exemplary sentences” are required given “the prevalence of gun crime in Toronto is depressingly familiar to those who work in the criminal justice system.” The Court described the true evil of handguns in particular:
Handguns have but one purpose, which is to kill or seriously injure human beings. They allow those who possess them to terminate the existence of another person on a whim and in a matter of seconds, permanently erasing that person’s hopes and dreams and leaving his or her family and friends to suffer a lifetime of sorrow and heartbreak. That some people view these tools of death as beneficial devices which one should have a right to possess is difficult to comprehend.
[52] Similarly, Justice Harris wrote in R. v. Kawal, 2018 ONSC 7531, para. 11:
Handguns are a social evil. The Supreme Court has said and there can be no possible argument against it"Gun-related crime poses grave danger to Canadians." R. v. Nur 2015 SCC 15, per Chief Justice McLachlin, at para. I, see also Justice Moldaver in dissent, at para. 131 and Justice Watt, as he then was, in R. v. Gayle, [1996] O.J. No. 3020 (S.C.), at para. 28. The primary purpose of handguns is to maim and to kill. Lawyers and judges see first-hand the destruction wrought by handguns. They are a disease, a plague on our communities. We have the means at our disposal to eradicate or at least to drastically curtail them. It is difficult to understand why our society would not do everything in its power to ensure that handguns are not available for criminal purposes.
[53] Mr. Aden pleaded guilty to one count of the unlawful possession of a loaded prohibited firearm, contrary to Criminal Code section 95. He also pleaded guilty to possessing that firearm in violation of a prior Criminal Code section 109 weapons prohibition order imposed for a prior firearms-related offence. Recidivists who violate weapons prohibition orders by possessing illegal firearms, whether or not they commit further firearms-related crimes of violence, can sometimes expect sentences as high as eight or nine years: see R. v. Morris, 2023 ONCA 816, para. 87.
[54] A sentence for violating a weapons prohibition order must generally be served consecutively. In R. v. Claros, 2019 ONCA 626, para. 51, the Ontario Court of Appeal explained the rationale for this requirement:
The principle that such offences should be served consecutively is intended to ensure that disregard of firearm prohibition orders imposed in the interest of public safety does not go unpunished. This principle also recognizes that the breach of a prohibition order is different behaviour than the associated offences, engaging different social interests…
[55] The maximum sentence for the offence of discharging a firearm with intent is 14 years. A mandatory minimum sentence of five years is required when a restricted or prohibited firearm is used: Criminal Code section 244(2)(a)(i).
[56] The Ontario Court of Appeal established a range of sentencing for dangerous firearms-related offences in R. v. Bellissimo, 2009 ONCA 49, of 7 to 11 years. In that case, the offender entered a restaurant with a .40 calibre handgun. He discharged several rounds of ammunition, striking the owner in the back and a bystander who suffered a minor injury. A third person was narrowly missed. The Court of Appeal wrote the following at paras. 4-5:
We see virtually no mitigating factors. The seriousness of these crimes is hard to overstate. The respondent fired several shots in the restaurant. One significantly injured a victim, another caused a minor injury to a victim, and a third narrowly missed killing a third victim.
General deterrence and denunciation must be given a paramount weight in sentencing for these kind of dangerous gun related charges. We think the sentence fails to give adequate weight to these factors. We think a proper sentence is ten years…
[57] A review of the existing authorities demonstrates sentences for similar offences may deviate from this established range, running from as low as five to six years and, in some cases, as high as 12 years or more. In support of his position, Mr. Embry directed me to several cases where sentences of seven years or less have been imposed with certain mitigating factors.
[58] In R. v. Greene, 2024 ONSC 5155, Justice Schreck sentenced an 18 year old offender to seven years for his role in a violent home invasion robbery. He and a co-accused carried firearms. During the robbery, the co-accused shot two victims, causing serious injuries. A third victim suffered psychological trauma. Greene did not have a prior adult criminal record but did have a prior youth record for firearms offences and was subject to a YCJA s. 51(1) order prohibiting him from possessing firearms. Social context evidence demonstrated he grew up in poverty and was exposed to violence and crime as a child. In coming to his conclusion, Justice Schreck placed great emphasis that the offender was “barely an adult” when he took part in the crimes: see paras. 52 and 64.
[59] In R. v. Baugh, Liburd and Reece, 2021 ONSC 8408, the three offenders shot at multiple victims who were in a taxi. The driver of the taxi was struck once, but made a recovery from his injuries. Liburd was the offender most closely aligned with Mr. Aden’s circumstances. Liburd was 28 at the time, with a prior criminal record, and subject to a 109 prohibition order and a bail order at the time of the shooting. He pleaded guilty to the intentional discharge of a firearm and aggravated assault, and was sentenced by Justice Forestell to 7.5 years.
[60] In R. v. Larmond, 2011 ONSC 7170, para. 9, the offender was found guilty after a trial for shooting a man in the abdomen. The offender was associated with a known drug dealer who believed the victim owed him $200, but the motive for the shooting was somewhat unclear and did not involve any planning. Justice Belobaba described the shooting as “unprovoked and irrational.” The offender had no prior criminal record. The Court imposed a seven-year sentence.
[61] In R. v. Reis, 2017 ONSC 1961, para. 35, two young persons taunted the offender. One of them had pointed a gun at him in the past. When that same young person threatened him with a firearm a second time, he chased after him, tackled him and took the firearm. Reis then shot the firearm five times and struck the young person once, hitting him in the lower abdomen. Reis has no prior criminal record. Justice Akhtar accepted the Crown’s position of six years, although noted it was “not so low as to be unfit.”
[62] At the very low end of the range, Mr. Embry directed me to R. v. Johnson, 2020 ONCJ 272. The offender was 26 years old and a friend of the victim. One night, following an argument, he reached for a firearm and shot the victim once in the chest. The victim did not require surgery to recover. Despite a prior criminal record (although not including any entries for firearms-related offences), the court imposed a sentence of five and a half years.
[63] In other reported decisions, much higher sentences have been imposed. In R. v. Jefferson, 2014 ONCA 434, the appellant walked out onto a roadway, stopped in front of a vehicle, and fired a single shot from a handgun through the car window at the victim, who was a passenger. There was a history of animosity between the parties. The bullet struck the victim in the arm. The trial judge sentenced the accused to 10 years. The Court of Appeal upheld the sentence, noting it was within the range established in Bellissimo.
[64] In R. v. Weeden, 2019 ONSC 773, the offender attended a bar in downtown Toronto. Following a dispute with other patrons, he retrieved a gun and fired a single shot outside the bar where everyone had assembled. The bullet struck an Uber driver who was waiting nearby in his car, peacefully minding his own business. Weeden was convicted of various offences, including discharging a firearm with intent and aggravated assault. He was subject to a weapons prohibition order at the time.
[65] Justice McArthur noted that the offender had time to deliberate upon his actions and intentionally shot the gun toward a large group of people, any one of whom could have been killed. The shooting occurred in a public place where bystanders were put at severe risk. He imposed a sentence of 9.5 years on the charges of aggravated assault and discharge with intent: see paras. 29-34 and 46.
[66] In R. v. Stephens, 2024 ONSC 35, the offender was found guilty of two counts of aggravated assault following a shooting in St. Catherine’s. He was part of a group of associates that confronted another group. Members of the offender’s group fired shots at the other group, striking a member of that group, Mr. Savalanpour, twice in the lower abdomen. Five innocent bystanders were also hit.
[67] Justice Goodman sentenced the offender as a party to the offences, as the evidence did not establish he fired the shots himself. Nevertheless, he was a party to a plan to shoot Mr. Savalanpour in a public place, knowing that other people would be put at risk. He imposed a sentence of 9 years. He held that the offender’s conduct demonstrated “patent dangerousness” and reflected “extremely high” moral culpability given the degree of planning that went into the shooting: see para. 61.
[68] The very upper end of the sentencing range for offences of this nature includes some of the decisions provided to me by Mr. Pyper, such as R. v. Cox, 2015 ONCA 769, R. v. Hakimi, 2019 ONCA 749, R. v. Sauve, 2019 ONSC 960 and R. v. Hylton, 2016 ONCA 991.
[69] In Hakimi, a 12-year sentence was upheld by the Court of Appeal. Following a confrontation with the victim inside an after-hours restaurant, the appellant fired a gun twice into the ceiling. When the victim exited the restaurant, the appellant shot him in the stomach and hand. He has a prior criminal record which included convictions for breaching court orders.
[70] In Sauve, the offender was found guilty after trial of discharging a firearm, aggravated assault, use of a firearm while committing an indictable offence, occupying a motor vehicle with knowledge a firearm was present, possession of a loaded firearm without authorization, possession of a firearm without a licence, carrying a concealed weapon, dangerous operation of a vehicle, failure to stop, and breach of probation. He and another male person arrived at a townhouse complex, fired 13 projectiles into the living room window of that residence, and then fled. A ten-year-old child was shot but survived. His siblings and parents were also home at the time. The intended target of the shooting was another man known to frequent the same townhouse complex.
[71] The offender was 20 at the time of the incident. He had a criminal record for crimes of violence. He was on parole and probation. Justice Byrne imposed a global 12.5 year sentence: see para. 41.
[72] In Cox, the appellant was convicted of robbery and firearms-related charges, including discharging a firearm with intent. He and another suspect robbed the victim in a Fido store in a busy shopping mall. The appellant shot the victim in the leg using a handgun. The victim’s 11-year-old sister was present at the time.
[73] Despite the appellant’s status as a youthful first-time offender, the trial judge imposed a sentence of 11 years. He was on probation (from a prior discharge) and a bail order at the time of the shooting. His status as a first offender was “far outweighed by the fact that he fired the gun in a crowded public place causing life-threatening injuries to the victim, all in furtherance of some petty or criminal grievance”: see para. 13. The Court of Appeal upheld the sentence.
[74] In Hylton, the appellant “ was deeply and completely involved in the preparation and execution of the home invasion”: see para. 1 . He was a first-time offender. The trial judge imposed a global sentence of 10 years for two counts of robbery and one count each of unlawful confinement, discharging a firearm with intent to wound, aggravated assault, possession of a loaded prohibited firearm, and wearing a face mask with intent to commit an indictable offence.
[75] He developed a plan to break into a drug dealer’s home and commit a robbery. He enlisted several co-accused. While disguised and armed with firearms, they broke into the home and demanded cash and drugs. They threatened the victim’s mother. When the victim would not provide drugs, the offender told a co-accused to shoot him. The victim fought back, and one of the co-accused discharged a firearm, striking the victim in the leg. He had serious injuries as a result.
[76] The appellant was 27 but had “unclear” rehabilitative prospects: see Mills, Hylton and Dennis , 2014 ONSC 1134 , at para. 91 . He had two young children that he supported. He expressed remorse and took programs while in custody: see para. 139 . The Court of Appeal upheld a 10-year sentence.
[77] Finally, in another recent decision, a first-time offender also received an 11-year sentence for a dangerous shooting. In R. v. George, 2023 ONCJ 298, the offender attended a birthday party for his one-year-old child. He possessed a loaded firearm. Just before 8:00 p.m., gunfire erupted at the birthday party. Four men discharged a total of twenty-four rounds of ammunition. One combatant and two children were seriously injured. Justice Fraser found the offender fired six rounds at another man and in the direction of “a sea of children” other guests: see paras. 1-2 .
[78] Justice Fraser was unable to conclude that the offender personally fired the shots that injured the victims. Regardless, he remained morally culpable for his actions and contribution to the gunfight. He showed no remorse and remained a danger to the community. Despite Mr. George not having a prior criminal record, a sentence of 11 years was imposed: see para. 66.
2) Firearms Violence in Canada
[79] In R. v. Lacasse, 2015 SCC 64, para. 89, the Supreme Court of Canada held that t he “frequency of a type of offence in a particular region can certainly be a relevant factor for a sentencing judge”: see para. 89 . In George , Justice Fraser of this courthouse noted that there had been a “dangerous increase in recent years” regarding firearms violence in Toronto: see para. 8 .
[80] Sadly, based on my observations of the cases regularly appearing in this courthouse, I agree with my colleague. While the problem of firearms violence is a multi-faceted one, courts must take appropriate steps to respond to a persistent community threat accordingly.
3) Rehabilitation and Restraint
[81] Rehabilitation and restraint must be considered even in cases of serious firearms-related violence: see R. v. Desir, 2021 ONCA 486, paras. 41-42. Mr. Aden has rehabilitative potential, which must be given some weight. However, he is not a first-time offender. He has been convicted of a crime of violence in the past, as well as firearms-related offences. He was given the opportunity to rehabilitate and reform himself. Instead, he chose to re-offend with a firearm. He also carried crack cocaine for the purpose of trafficking, and the toxic combination of firearms and drugs is well-documented in our jurisprudence.
[82] Mr. Aden was a mature man, 30 years old at the time he shot Mr. Suwareh. He had been sentenced to the penitentiary previously for the illegal possession of a firearm. The principle of restraint has little, if any, application to this case.
[83] I recognize Mr. Aden has strong family and community-based support. His mother cares deeply for him and remains a source of love and guidance. His close friends, interviewed for the EPSR, speak of his other good character and desire to help others. Mr. Kogulan Srivaratharajah (aka “Kogi”), said he was like a brother to him. He can assist Mr. Aden with securing employment upon his release from custody. Ms. Tesfamariyam believes in his ability to change and will offer her support in the future to help him stay “on the right track.”
[84] Mr. Aden has demonstrated he can succeed with education when he commits to seeing programs through. That speaks well for long-term success if he is provided with the opportunity to access further educational programming while in custody.
4) Mitigating Effect Of A Guilty Plea
[85] Mr. Aden pleaded guilty. The Crown’s primary witness, Mr. Suwareh, was reluctant to testify at the preliminary hearing. Mr. Aden spared the justice system from the need to conclude that proceeding and a potentially lengthy trial in the Superior Court of Justice.
[86] Nevertheless, the case against him was very strong. He was arrested immediately after the shooting. The victim was located on the street with life-threatening gunshot injuries. The firearm was recovered. The incident happened in broad daylight with witnesses. A particle of gunshot residue was situated on his hands. The plea only occurred after the preliminary hearing commenced, and Mr. Suwareh was located on the strength of a material witness warrant.
[87] The weight to be assigned to the mitigating effect of a guilty plea is not set in stone. In some cases, it may be less important than others: see R. v. Lynch, 2022 ONCA 109, para. 20. I find this to be a case of medium weight. Furthermore, as I will discuss later in this judgment, Mr. Aden does not fully accept responsibility for his actions.
[88] However, prior to entering his guilty pleas, a discussion took place between the originally assigned Assistant Crown Attorney (“ACA”) to this matter (not Mr. Pyper), myself as the judge assigned to hear the preliminary hearing, and Mr. Embry. During those discussions, the ACA indicated the Crown would not seek a sentence of more than ten years. By the time of the sentencing hearing, it was somewhat unclear if this position was a hard ceiling or meant to convey a general position only.
[89] Mr. Pyper, honourably and in the greatest traditions of his office, indicated that he would not seek a sentence of more than ten years if I were to conclude that Mr. Aden’s decision to plead guilty was influenced by how this information was communicated to him. I accept Mr. Embry’s submission that this was a factor in his client’s decision to plead guilty. I will, therefore, approach my decision with this factor in mind.[2]
5) Difficult Conditions of Pre-Sentence Custody
[90] Mr. Aden has been held at the Toronto East Detention Centre (“TEDC”) since January 2024. However, for 15 months after his arrest, he was held at the Toronto South Detention Centre (“TSDC”).
[91] Mr. Aden has experienced triple bunking regularly. He has little privacy in his cell. Only two operating phones are on his range, and one shower is in disrepair. Poor ventilation at the jail is affecting his breathing. He requested a medical check-up but has yet to be seen by a doctor. He has had to barter with his other inmates for sleep medication to treat his anxiety.
[92] Mr. Embry filed records from the TEDC, demonstrating that from January 4 to December 3, 2024, Mr. Aden was in a cell with two other inmates for 199 nights. Cells are not designed for three inmates. He had to sleep on a mattress on the floor 27 of those days. He could access a yard for fresh air or exercise only 35% of the time.
[93] According to Mr. Aden, as bad as the conditions are at the TEDC, they are an improvement from what he experienced at the TSDC. From October 12, 2022 – January 4, 2024, Mr. Aden was housed at the TSDC. Lockdown records from that institution demonstrate he was regularly subject to partial or full lockdowns.
[94] Difficult conditions of imprisonment should be considered a significant collateral consequence justifying some mitigation at sentencing: see R. v. Morgan, 2020 ONCA 279, paras. 8-9; R. v. Reddick, 2020 ONCA 786, para. 11. Despite these difficult conditions, Mr. Aden has not been charged with any misconduct while in custody.
[95] In R. v. Marshall, 2021 ONCA 344, paras. 52-53, the Ontario Court of Appeal held that Duncan credit is “not a deduction from the otherwise appropriate sentence, but is one of the factors to be considered in determining the appropriate sentence.” However, because it is a mitigating factor to be considered, “it cannot justify the imposition of a sentence that is inappropriate.” The Court of Appeal cautioned against the “quantification” of this factor, as such an approach “may skew the calculation of the ultimate sentence.”
6) Proportionality and Morris considerations
[96] Mr. Aden is a black man. In R. v. Morris, 2021 ONCA 680, para. 76, the Court of Appeal held that “[e]vidence that an offender's choices were limited or influenced by his disadvantaged circumstances, however, speaks to the offender's moral responsibility for his acts,” although “not to the seriousness of the crimes.” While there is no need for an accused to draw a direct causal link between his life experiences and the offences, there must be some connection between the fact of systemic racism and “the circumstances or events that are said to explain or mitigate the criminal conduct in issue”: see para. 42; R. v. S.M., 2023 ONCA 417, para. 27.
[97] The EPSR places great emphasis on Mr. Aden’s early life in Regent Park, where a defining feature of the neighbourhood was poverty, a lack of opportunities, and the prevalence of criminal activity, including gun violence. Having been exposed to this activity regularly at a young age and seeing the toll of its associated violence, the author wrote that one could “develop an understanding of [Mr. Aden’s] circumstances that lead to his involvement in the offence” and “the effect of community violence on him should not be minimized”: see p. 13. His decision to arm himself can be better understood as arising out of fear for his safety.
[98] In R. v. Husbands, 2024 ONCA 155, paras. 59-60, the Ontario Court of Appeal provided helpful guidance for assessing social-context evidence and determining the weight a sentencing court should attach to it in cases of serious firearms-related violence. The Court emphasized its conclusion in Morris that while this evidence may be relevant to assessing the offender’s degree of moral culpability, it does not alter the seriousness of the offence:
Morris also makes clear that social context evidence is not relevant when calibrating the seriousness of the offence. Indeed, Morris comments that the carrying of a loaded, concealed firearm in a public place was “made no less serious, dangerous, and harmful to the community” as a result of social context evidence: para. 76. Accordingly, even where there is relevant social context evidence before the court, deterrence and denunciation still play a predominant role in sentencing for serious crimes, including crimes involving the unlawful possession of loaded handguns in public places.
Of course, that is not to say that social context evidence becomes irrelevant in cases such as these. Nonetheless, depending upon the seriousness of the offence, that seriousness can weigh more heavily in the sentencing calculus than any mitigation of the offender’s moral blameworthiness…
[99] I do not find that the social-context evidence presented in this case significantly diminishes Mr. Aden’s moral culpability for these offences. In Morris, the appellant possessed a firearm, in part, due to his fear of others, including the police. That fear was explained, to some extent, by his experiences with systemic racism. Even considering his genuine fear, it was a “limited mitigating factor”: see para. 101. He put “members of the community, and police officers engaged in the lawful execution of their duties, at real risk.”
[100] Notably, Mr. Morris was not convicted of shooting a defenceless victim, as Mr. Aden has been. Additionally, Mr. Aden’s version of the shooting that he relayed to the author of the EPSR is not consistent with the agreed facts for the plea. Mr. Aden asserted that he held the firearm for protection, yet he was also in possession of crack cocaine for the purpose of trafficking that day. His reasons for possessing the firearm were, at a minimum, not merely “for protection,” and I do not accept his explanation. Drug traffickers typically possess firearms as a tool of their illegal trade. More concerning is that Mr. Aden said that he saw Mr. Suwareh with what appeared to be a firearm, too, thus allegedly explaining his decision to shoot first. But Mr. Suwareh was located moments after the shooting by Nurse Wellman, and no firearm was present on his person. Furthermore, Mr. Aden abandoned any defences, including self-defence, by pleading guilty.
[101] I recognize that any ambiguities in an Agreed Statement of Fact must be resolved in favour of the accused: see R. v. Morgan, 2024 ABCA 345, para. 43. I find no ambiguity. Nor must I accept Mr. Aden’s version of events, and I note a mitigating factor must be proven on a balance of probabilities through evidence accepted by the court: see Criminal Code section 724(3)(b); R. v. Nguyen, 2012 ONCA 534; R. v. Kunicki, 2014 MBCA 22, paras. 24-26; R. v. Pahl, 2016 BCCA 234, paras. 53-78.
[102] Mr. Aden’s decision to arm himself and shoot Mr. Suwareh three times in a public setting reflects a startling degree of moral culpability and indifference to human life. He did not have to engage in this hideous conduct; he chose to. He did so knowing the risk that his victim would die or that anyone nearby might be inadvertently exposed to harm themselves or at least bear witness to his callous actions. Furthermore, he created a risk of escalating violence and grave psychological harm to bystanders: see R. v. Habib, 2024 ONCA 830, para. 18.
[103] That is not to say his life experiences are irrelevant to my decision. Understanding what an accused person has been through and how those experiences have affected them is always important information for a sentencing court. Mr. Aden experienced hardships in his teenage years, mistreatment by the authorities and exposure to firearms-related violence. I accept each of these had an impact on him. However, Mr. Aden is not a youthful offender before the courts for the first time for a firearms-related offence. He has had many years to reform himself. Nor does his background change the fundamental nature of what happened in this case, which was a potentially lethal act of intentional violence.
Analysis and Conclusion
[104] Mr. Aden’s moral culpability for these offences is extremely high, even in the context of his lived experiences. He chose to deal cocaine and arm himself. He chose to shoot Mr. Suwareh near a public park in the late afternoon in downtown Toronto. The gunshots were fired with the intent of causing serious injury to his victim and with total disregard for not only his life but the lives and safety of everyone nearby.
[105] But for the rapid intervention of PC Gholamali and Nurse Wellman, this could have easily been another firearms-based death. Their decisiveness likely saved Mr. Suwareh’s life and resulted in Mr Aden's immediate apprehension. The police investigation that followed located the firearm before further tragedy could result.
[106] The nature of this particular firearm demands further comment. All handguns are instruments of death. But this firearm was equipped with an over-capacity magazine and was modified to allow it to fire fully automatically. The potential for untold horror was manifest. This is a serious aggravating factor. Furthermore, Mr. Aden not only wielded this weapon to commit a terrifying act of intentional violence, but he did so while bound by two prior weapons prohibition orders. This was also his second set of convictions for firearms-related offences involving a prohibited or restricted firearm.
[107] The residents of this city continue to experience a staggering degree of gun violence. It is easy to become numb to the constant headlines, but we must never become desensitized to firearm crime. The devastation associated with it must always be seen as shocking, and the courts’ response to it appropriately severe. Firearms-based crimes that are committed in public where anyone could be harmed not only take a toll on their immediate victims. They inflict permanent ruin on our collective sense of safety and security. Each shooting leaves the community a little more psychologically scarred. The impact of these crimes is acknowledged to be widespread and severe: see Husbands at para. 126.
[108] As noted by Justice Goodman in Stephens at para. 33:
Despite repeated attempts to convey society's repudiation of firearms offences, possession and use of illicit firearms continues to be a pervasion problem in Ontario, requiring ongoing denunciation. When firearms are utilized in public, their impact can be traumatizing to victims and witnesses alike.
[109] Mr. Aden has expressed remorse for his actions and shown insight into the terrible harm he caused Mr. Suwareh. That is to his credit.
[110] Nevertheless, Mr. Aden committed an extraordinarily dangerous offence and violated two existing 109 prohibition orders. The need to protect the public must be given priority. The crimes took a terrible toll not only on Mr. Suwareh but also on his father, and the impact offences have on their victims must be considered at sentencing: Criminal Code section 718.2(iii.1).[3]
[111] In the cases provided by Mr. Embry, the offenders lacked many of the aggravating factors present in this case. For example, in Reis, Johnston and Larmond, the offenders had no prior criminal record and were not subject to a prior weapons prohibition order. In Baugh, Liburd, and Reece, while one of the offenders (Liburd) did have a prior criminal record and was subject to a section 109 order, the victim was shot only once despite multiple shots being fired, and there was little to no victim impact information. In Greene, the offender was only 18 years old and did not personally fire any of the shots that wounded the victims.
[112] Even noting the lack of any planning behind the shooting, a sentence of 11 years, as proposed by the Crown, could have been entirely justified. Indeed, an even greater sentence might have been warranted, given the relentless menace of gun violence afflicting this city. Succinctly put, “gun violence is a scourge in our society and gun crimes must be treated with the utmost seriousness”: see R. v. Akram, 2024 ONCA 892, para. 8. However, given the position taken by the original ACA, which was relayed to Mr. Embry, I will reduce the global sentence to 10 years.
[113] On the charges of discharging a firearm and aggravated assault, I impose a sentence of nine years custody concurrent. On the count of possession of a loaded restricted or prohibited firearm, I impose a concurrent sentence of six years in prison. On the count of possession of a firearm contrary to a prohibition order, I impose a sentence of one year in custody, consecutive.
[114] Mr. Aden is entitled to credit for 1,229 days of pre-sentence custody (819 real days x 1.5, as per Summers). Therefore, the sentence from today’s date is 2,421 days (or 6 years and nearly 8 months).[4] This sentence respects the totality principle: see R. v. Ahmed, 2017 ONCA 76, paras. 79-85.
[115] Aggravated assault and discharge of a firearm with intent are primary designated offences under Criminal Code section 487.051(1). A DNA order is mandatory. Pursuant to s. 487.051(3)(b) of the Criminal Code, I am satisfied that it is in the best interests of justice to make an order authorizing the taking of a DNA sample for the other secondary designated offences.
[116] A weapons prohibition under Criminal Code section 109 will be imposed for life.
[117] There will be a forfeiture and destruction order concerning the seized firearm and ammunition pursuant to Criminal Code section 491(1).
[118] The victim fine surcharges are waived. Mr. Aden will be in custody, and it will cause undue hardship to pay them.
[119] I make an order under s. 743.21 of the Code, directing Mr. Aden to have no contact with Mr. Suwareh or any member of his immediate family.
Released: January 6, 2025
Signed: Justice Brock Jones
Footnotes
[1] Justice Rutherford granted credit for approximately three months of pre-sentence custody and two months for strict house-arrest bail conditions.
[2] I wish to emphasize that everyone involved in this case as Crown or defence counsel have demonstrated exceptional work and diligence throughout these proceedings.
[3] The Criminal Code defines a victim as “a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person.” The Canadian Victims’ Bill of Rights defines “victim” as “an individual who has suffered physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of an offence.”
[4] 10 x 365 = 3,650 total days, less Summers credit of 1,229 days.