COURT FILE NO.: 143/18 DATE: 20190628

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – AYANLE ADEN

Counsel: Jeremy K. Carnegie, for the Crown Peter J. Downing, for the defendant

HEARD: May 15, 16, 17, 21 and 22, 2019

GRACE J. (Orally)

A. Introduction

[1] The sounds of gunshots startled those who were in or near the residential complex at 2010 Wavell Street, London, Ontario (“2010”) shortly after 6 p.m. on August 29, 2017. Three parked cars were hit. Mercifully no one was struck, not even the shooters.

[2] One of the participants was in a motor vehicle. According to those who witnessed the event, the driver sped away. The other shooter was on foot and was seen running in the same direction as the car. The primary issue in this case is whether the Crown has proven beyond a reasonable doubt that Ayanle Aden was that person. If the Crown fails to meet its burden, the nine outstanding charges against the defendant must be dismissed. [^1] If, on the other hand, the prosecution establishes identity, additional issues only arise in respect of counts one and ten of the indictment. I start with the identification issue.

B. The Evidence

i. The Shooting

[3] Dundas Street East marks the northern boundary of Wavell Street. The latter road then runs south past 2040, then 2010 and finally 2000 Wavell before slowly curving to the west past Argyle Arena and Clarke Road Secondary School.

[4] 2010 is an L-shaped complex containing several dozen units spread among ten or so low-rise buildings. Most of the structures are clustered along the south side of the laneway/parking area. Two buildings are at the western end of the complex.

[5] Physical observations of the person on foot were made by two visitors to and several residents of 2010 and an inhabitant of 2040 Wavell Street – a multi-story apartment building immediately to the north. I turn to their testimony.

[6] I will refer to the evidence of nine witnesses in this portion of my reasons: Dalbir Singh and Georgios Poutsiakis were in the parking lot of 2010 at the time of the shooting for business reasons: Mr. Singh was waiting for a passenger named “Mike” in his Yellow London Taxi and Mr. Poutsiakis had just finished delivering a pizza for Domino’s. Ryan Dow (number 4), Brandi Sandison (number 14), Sharon Smith (number 15) [^2], Tammy Lynn Quaite (number 37) and Nikita Thorausch (number 38) were inside their homes when they heard and reacted to the sound of gunfire. Jocelyn Ninham had just parked her car toward the western end of 2010’s parking lot after returning with groceries. Thomas Walsh lived in a fifth floor apartment at 2040 Wavell Street. He rushed to his balcony to see what was happening after hearing loud noises from the direction of 2010.

[7] While testimony ranged in many respects, all of the witnesses seemed to be referring to the same individual. Their attention was drawn to one pedestrian in 2010’s parking area at the time of or immediately after the incident. Three witnessed shots being discharged from a firearm. [^3] Others saw a handgun but the firing had stopped. [^4] Three witnesses did not see a weapon at all. Two members of this latter group saw the person bend over to pick up an object they were unable to identify. [^5]

[8] All agreed the person on foot was male, that he was wearing a black hoodie with the hood pulled up, that he was seen running east toward Wavell Street and then in a southerly direction along or near the sidewalk on the west side of the road. [^6]

[9] Other aspects of their reports varied. Ms. Thorausch thought the individual was Caucasian. She testified that she saw white legs underneath dark basketball shorts. All of the other witnesses described a person of colour. Most used the word black. Mr. Poutsiakas also used the word brown. Mr. Dow said the person was light skinned. He was the only witness who was asked whether he recognized Mr. Aden as he sat in the dock. Mr. Dow said that he thought the person he saw on August 29, 2017 was lighter skinned than the accused.

[10] Descriptions of height and build differed too. Estimates of the former ranged from five feet three inches [^7] to six feet tall. [^8] There was no consistent description of build. Mr. Dow said the person with the gun was slim. Ms. Thorausch chose the word “skinny”. A little heavy in the middle was the description Mr. Poutsiakas offered. Nice looking and physically fit was what Mr. Singh remembered.

[11] Ms. Ninham was the only one who recalled seeing hair sticking out from under the person’s hood. Mr. Poutsiakas was adamant that no hair was showing.

[12] Those who had a memory of the shooter’s pants [^9] remembered their colour as black but the length varied from shorts [^10] to full length. [^11] The accounts differed in other respects too. Mr. Singh thought the shooter was wearing a baseball hat under his hood. No one else mentioned that item. In cross-examination Mr. Singh agreed that the approaching passenger had been wearing sunglasses too. No other witness recalled that detail either.

[13] The taxi driver remembered that the person he saw had a black knapsack on his shoulders. He removed the backpack in reaction to something he had seen and withdrew a black handgun as he did. The bag fell to the ground and the man began to fire.

[14] Mr. Poutsiakis saw a black backpack too. He recalled that it was one of several items the gunman discarded as he ran away.

ii. The Aftermath

[15] Cayla Rutter (number 59), MacKenzie McCarty (number 15) and Gail Garside (number 47) were residents of 2000 Wavell Street (“2000”). Each one of them described a person of interest they saw later in the evening of August 29, 2017.

[16] Like 2010, 2000 is a multi-unit residential complex spread among several low-rise buildings. Ms. Rutter’s residence was on the north side of 2000’s parking lot, close to Wavell Street. She remembered hearing what she thought were fireworks. Looking through her partly open rear door about fifteen to twenty minutes later, she caught a glimpse of a person dressed all in black. She said the person was running in a westerly direction. Ms. Rutter was unable to offer any physical description.

[17] The building in which MacKenzie McCarty resided was on the south side of the parking lot at 2000, slightly west of the unit Ms. Rutter occupied. Ms. McCarty said she heard several loud bangs while sitting on the front porch of her residence.

[18] Two or three minutes later, she saw a man running toward her along the sidewalk on the west side of Wavell Street. He was coming from the direction of 2010. Ms. McCarty looked on as he stopped in a gap between two buildings to the north of her position. The easternmost building contained Ms. Rutter’s unit. She said the man continued running in a westerly direction after putting something in the front of his pants.

[19] Ms. McCarty offered a description of the person she saw. She said he was tall, black skinned, with a thin waist and muscular upper body. She said the hood of the black Jordan hoodie he was wearing covered his head. Long black jogging pants concealed his legs. He was sporting white running shoes.

[20] By agreement, Gail Garside’s testimony at the preliminary hearing constituted her evidence at trial. Ms. Garside’s unit was west of the ones occupied by witnesses Rutter and McCarty. Unit 50 was at the eastern end of the building that contained Ms. Garside’s residence. Kayo Briel lived there. I will mention Ms. Briel again shortly.

[21] The sound of gunshots caused Ms. Garside to exit the front door. A few minutes later a man moving at a pace she described as between walking and running came around the southeast corner of the exterior wall of unit 50. He was wearing a white t-shirt and black jeans or jogging pants. He repeatedly looked back as he headed west along the pedestrian walkway toward an access point that led to a nearby Walmart store.

[22] The witness offered a physical description. At one point Ms. Garside described the person’s skin colour as dark. She also used the word mulatto. She thought he stood between five foot eight and five foot ten inches tall and had broad shoulders.

iii. Walmart and McDonald’s Surveillance

[23] A Walmart Supercenter is in a large retail development that lies immediately west of 2000. Images captured during the early evening hours of August 29, 2017 by external and internal video cameras installed by Walmart and a McDonald’s restaurant were shown during the trial. Counsel for the defendant acknowledged that Mr. Aden is the person who is repeatedly seen.

[24] At about 6:15 p.m. the defendant was observed approaching Walmart for the first time. He was coming from the direction of the opening at the western end of the pedestrian walkway that traverses 2000. His pace is steady but not especially hurried. The defendant was wearing a white top, black shorts and black running shoes. Nothing was in his hands or on his back.

[25] Exterior cameras followed Mr. Aden as he continued to walk along the exterior of the supercenter and then entered through Walmart’s main entrance. Mr. Aden’s features are much easier to see in the images taken inside the store. He is not Caucasian. His skin is quite dark in colour. His hair was short. A light moustache was visible. His clothing was more easily seen too. His t-shirt was a Jordan brand. While not a particularly large man, slim or skinny are not descriptions of body type that come to mind.

[26] Mr. Aden continued to be visible as he moved about the store. At about 6:21 p.m. he was seen carrying an article of clothing toward the check-out area. Approximately four minutes later he entered a washroom. He returned to the public part of the store at around 6:29 p.m. Shorts had been replaced by long dark pants. Mr. Aden was then carrying a gray bag.

[27] Before losing sight of Mr. Aden for the final time at around 6:41 p.m., he entered and then exited what Walmart employee Darnell Ranson described as the vision store. For the first time while on camera, Mr. Aden is seen wearing sunglasses as he walked through the front foyer and exited Walmart for good.

iv. The Items Recovered

[28] Six 9 millimetre casings were found by Constable Jessica Burt of the London Police Service (“LPS”) in 2010’s parking lot. Nearby she also found a scope capable of being attached to a handgun.

[29] Forensics identification officer D-C Derek Hardman participated in the removal of a single bullet from the driver’s door of the Pontiac Wave Ms. Ninham had been driving. Another forensics identification officer, D-C Laurie Legg, was able to dislodge a bullet from the center console of a Honda motor vehicle that had been parked toward the opposite end of the parking lot. Another resident of 2010, Sharon Smith, found a casing near her parked car a couple of days later.

[30] The sound of gunshots had caused Julliana Muscedere to rush outside to search for one of her children. During her travels, she found a black backpack and cell phone on the ground in the eastern portion of the parking lot. Those items were turned over to Constable Tiffany Waque of the LPS soon after her arrival at the scene at about 6:18 p.m. Constable Tom Policelli took control of those pieces of evidence at 6:40 p.m. He noted that the knapsack was a Hex brand. Several rounds of 9 millimetre ammunition were found inside one of the pockets the bag contained.

[31] I briefly mentioned Kayo Briel before. She lived with her daughter in unit 50 of the complex at 2000. On the evening in question she was gathering garbage from the bins at the rear of her unit for pick-up the following day. At about 8 p.m. she found a small black handgun inside one of the trash containers.

[32] Constable John Porter was approached by Ms. Briel and her daughter. He followed them to the rear of unit 50 after being told what they had found. He inspected the Glock 9 mm. handgun that was lying on the ground. A bullet was in the chamber. The weapon had been loaded with an extended magazine capable of holding thirty-one rounds. Subsequent examination resulted in the discovery of a number of unfired bullets.

[33] I have mentioned MacKenzie McCarty and Gail Garside before. They made additional observations during the morning hours of August 30, 2017. Ms. McCarty was walking her dog along 2000’s pedestrian walkway at about 8 a.m. The pet drew her attention to a bush immediately to the north of unit 38. There she found a discarded, dark-coloured Jordan brand hoodie. After retrieving the item, she left it near a tree in front of unit 50 where it was seen by Ms. Garside a little later.

[34] All of the items I have mentioned were photographed as a result of the combined efforts of forensic identification officers Hardman and Legg. Unsuccessful efforts were made to extract fingerprints from some of the items. I will address the results of the DNA analysis of the hoodie Ms. McCarty found later in these reasons.

v. Other Oral Evidence

[35] I have mentioned all but two of the witnesses. Sarah Gervais occupied unit 16 in the 2010 complex at the relevant time. She did not testify during the trial. However, the parties agreed that the transcripts of the interview she gave to the police on August 30, 2017 and evidence given by her at the preliminary hearing would be treated as if given during this proceeding.

[36] Ms. Gervais said that someone known to her as “Rob” had left her unit seconds before the sound of gunfire erupted. Rob had been on a cell phone beforehand. The conversation was animated and in a tongue she thought was Somali. After the call, Rob was agitated. He was pacing around the living room.

[37] She outlined the clothing Rob had been wearing: a black zip up hoodie and a black pair of shorts. He was carrying a plain black, nylon backpack.

[38] Ms. Gervais described his physical attributes too: of Somalian heritage, about five feet, five inches tall, heavy set, in his late 30’s, clean shaven with reasonably short hair in a tight curl.

[39] During the preliminary hearing she was asked whether Mr. Aden was “Rob”. The witness said her vision was so poor that she could not see more than two feet in front of her. After listening to counsel’s lengthy exchanges, the presiding judge allowed the defendant’s lawyer to show Ms. Gervais a still photo drawn from one of the surveillance videos. She testified that Rob was lighter skinned than the person depicted in the photograph. Nonetheless, she thought it quite possible that they were the same person. However, when asked to note that the photograph showed Mr. Aden with a moustache, she said the person portrayed could not be Rob.

[40] Sirad Shidane, the mother of the accused, was the only witness called by the defence. A native of Somalia, Ms. Shidane arrived in Canada in 1990. Mr. Aden is the third eldest of her six children. All were born in this country.

[41] Ms. Shidane maintained that English had always been the language used to communicate with her children from the day they were born. In cross-examination, the witness acknowledged that she used Somali when speaking with her spouse, with friends and with other members of the Somali community. She told the court that nonetheless Mr. Aden knew nothing more than certain words and short phrases in her native tongue. His knowledge was insufficient, she said, to carry on a conversation in Somali.

vi. Other Video and Documentary Evidence

[42] A number of facts were agreed to by the Crown and defence. [^12] Two bear mention at this stage.

[43] Late in the afternoon on August 28, 2017, Mr. Aden took a Yellow London Taxi from his residence on Jensen Road to another London, Ontario address. On consent, video taken by an onboard camera and screenshots of some of the images also became part of the evidentiary record. On that occasion, Mr. Aden was wearing a dark, Jordan brand hoodie. He was carrying a plain black backpack. A silver tag was affixed to the bottom right corner of the bag. The defendant’s facial features are visible. His hair was closely cropped. His facial hair was as earlier described. He had a thin moustache.

[44] By agreement, a number of reports prepared by members of the Centre of Forensic Science were also introduced into evidence. Their accuracy was admitted. Their findings were undisputed. The documents include a chemistry and two biology reports and a letter of opinion. For now, it is sufficient to note the following: (i) a cut-out from the inside right cuff of the hoodie recovered from the bush behind unit 38 of 2000 was examined; (ii) DNA from at least three contributors was found on the sample; (iii) Mr. Aden could not be excluded as one of the donors; (iv) six gunshot residue particles were also recovered from that piece of clothing.

C. Analysis and Decision

i. The Applicable Legal Principles

[45] The Crown addressed one of the charges at the conclusion of the evidence. Count six of the indictment alleges that Mr. Aden did, without lawful excuse, possess a handgun knowing that it had been obtained as a result of the commission of an offence. While the parties agreed that the recovered handgun was stolen from a residence in Alberta, no evidence was led concerning the shooter’s knowledge of that fact. The charge was dismissed.

[46] Nine counts remain. Six of them relate to the possession or use of the handgun which is described as either a “firearm” [^13] or “restricted firearm” [^14] in the applicable counts of the indictment and the sections of the Criminal Code to which they refer. In a November 17, 2017 Firearms Report, forensic scientist Toni Brinck of the Centre of Forensic Sciences concluded that the Glock handgun found behind Ms. Briel’s unit met the definition of those words as set forth in the Criminal Code. Her conclusions are unchallenged.

[47] Counts four and eight allege that Mr. Aden was in possession of the magazine that was removed from the handgun. Same is described as a “prohibited device” in the indictment. [^15] In her report, Ms. Brinck also concluded that the magazine met the definition of that phrase as set forth in the Criminal Code.

[48] In some of the counts it is alleged that Mr. Aden knew that he was not authorized to be in possession of a handgun or ammunition. The fact that Mr. Aden was the subject of a December 18, 2013 weapons prohibition and an April 11, 2017 recognizance containing a similar ban is also conceded. [^16]

[49] As a result of the various admissions, identity is the sole issue to be determined in relation to all of the counts that relate to the handgun or magazine, save for count one. It is the first of two issues that arise in the context of that charge which alleges that Mr. Aden discharged the handgun with intent to endanger lives. Self-defence is the second topic to be addressed when considering the initial count in the indictment.

[50] Before addressing identity further, I turn to the applicable legal principles. The usual ones apply. Mr. Aden is presumed to be innocent of all of the charges he faces: Canadian Charter of Rights and Freedoms, s. 11(d). He does not have to prove a thing. The Crown bears the onus of proving every element of every charge beyond a reasonable doubt. That includes establishing that Mr. Aden was the unidentified shooter.

[51] None of the witnesses were able to say that Mr. Aden was the person they saw. In fact, Mr. Dow thought the person he had seen was lighter skinned than the defendant. Ms. Gervais had seen “Rob” several times but was, at best, uncertain whether he was the person portrayed in the photograph she was shown during the preliminary hearing.

[52] It would not have been determinative even if someone had, with absolute certainty, pointed a stony finger at the accused. As the Court of Appeal said in R. v. M.B., 2017 ONCA 653, at para. 29, “[e]yewitness identification is inherently unreliable.” As that court warned in R. v. Gough, 2013 ONCA 137, at paras. 35-37:

Being notoriously unreliable, eyewitness identification evidence calls for considerable caution by a trier of fact…It is generally the reliability, not the credibility, of the eyewitness’ identification that must be established. The danger is an honest but inaccurate identification…

The trier of fact must take into account the frailties of eyewitness identification in considering such issues as whether the suspect was known to the witness, the circumstances of the contact during the commission of the crime (including whether the opportunity to see the suspect was lengthy or fleeting) and whether the circumstances surrounding the opportunity to observe the suspect were stressful…

As well, the judge must carefully scrutinize the witnesses’ description of the assailant. Generic descriptions have been considered to be of little assistance. [Citations omitted]

[53] The prosecution acknowledges that its case is largely circumstantial. In order to find an accused guilty on the basis of circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the defendant’s guilt is the only reasonable inference that can be drawn from the totality of the evidence: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33.

[54] The Supreme Court of Canada has provided extensive guidance. Writing for a unanimous court in R. v. Villaroman, 2016 SCC 33, Cromwell J. explained at para. 35:

The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

[55] Conclusions inconsistent with guilt may arise logically from the evidence or lack of evidence. At paras. 36 and 37 of Villaroman., Cromwell J. added:

A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence or absence of evidence, assessed logically, and in light of human experience and common sense.

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt…I agree…that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”… “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [Citations omitted. Emphasis in original]

[56] The prosecution also relies on evidence of Mr. Aden’s actions after the incident. In R. v. White, [1998] 2 S.C.R. 72, Major J. wrote at para. 21:

Evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role.

[57] Post-offence conduct is be assessed as part of and not separate from the rest of the evidence in determining whether the Crown has met the criminal standard of proof. [^17] As Feldman and Simmons JJ.A. said in R. v. Hall, 2010 ONCA 724, at para. 131:

Evidence of post-offence conduct is not evidence of the commission of a crime or its planning, which a jury can assess to determine the facts of an event and the identity of the perpetrator. Rather, it is evidence of what someone did after an event, which proves nothing directly, but from which the jury is asked to conduct a psychological analysis of what a person logically would or might do in given circumstances.

[58] The trier of fact must not enter a conviction based on post-offence conduct unless satisfied beyond a reasonable doubt that guilt is the only rational inference that can be drawn after consideration of all of the evidence.

ii. The Principles Applied

[59] I agree that the case for the Crown is predominately circumstantial. Eyewitness testimony from those at the 2010 complex was particularly problematic. The shooting was unexpected, dramatic and brief. The situation was dynamic. Those with guns and persons without them were in motion. Some of the eyewitnesses were in and tried to remove themselves from the line of fire. With the possible exception of Ms. Gervais, none of the witnesses from 2010 knew either of the perpetrators. As in R. v. Bao, 2019 ONCA 458, cross-racial identification is even more challenging. The extent of the problem is illustrated by this case. Observations concerning appearance and clothing varied in many, often significant, respects. Everyone seemed to agree on only one thing: that the person in question was wearing a dark coloured hooded sweatshirt and that the hood covered their head.

[60] Similarly imperfect are the observations made soon afterward of a person seen travelling through the neighbouring complex at 2000. Ms. Rutter saw only dark clothing and the direction in which the individual ran. No physical attributes were noted. She was not even certain it was an adult who passed by.

[61] Ms. McCarty saw a dark coloured hoodie. She was the first person to mention the Jordan brand. However, she was also the person who found, retrieved and moved that article of clothing the following day.

[62] Ms. Garside’s brief sighting occurred soon afterward. The person she saw was wearing a white t-shirt, not a hoodie.

[63] Video taken by Walmart’s surveillance cameras show what Mr. Aden was wearing as he approached, entered and moved about the store. A white Jordan brand t-shirt covered his upper body. The colour and style corresponded with Ms. Garside’s evidence.

[64] Ms. McCarty also mentioned long jogging pants. Ms. Garside remembered black jeans or jogging pants. In fact, Mr. Aden was wearing black shorts until he changed in Walmart’s public washroom.

[65] White running shoes were part of Ms. McCarty’s description. It is evident from the Walmart video that Mr. Aden’s shoes were black.

[66] Nor do the physical attributes of Mr. Aden as seen in the video correspond with most of the descriptions offered. The defendant’s actual height of six feet was an agreed fact. Most witnesses saw a much shorter man. The shooter’s body type created different impressions ranging from skinny to a little paunchy. The surveillance of Mr. Aden showed a person to whom neither word really seemed to apply. Mr. Aden’s hair length was much shorter than that attributed to the shooter by Ms. Ninham. Ms. Gervais said “Rob” was clean shaven. Although thin, a moustache is clearly visible in the videos taken inside the Walmart store and in the Yellow taxi the previous afternoon. However, during the preliminary hearing Ms. Gervais repeatedly mentioned her poor eyesight.

[67] The Crown concedes that the eyewitness evidence is insufficient to identify the accused. However, there are several more items it suggests are conclusive once added to the mix. Those matters are summarized below, as is the response of counsel for the accused.

[68] I start with the records of Yellow London Taxi. Details of trips arranged through phone numbers ending in 8414 and 1555 were admitted for the truth of their contents.

[69] London Yellow Taxi’s business records reveal the following: (i) during the three month period covered, dozens of calls were made to that company using the numbers ending with 8414 and 1555; (ii) various contact names were given by the caller including “Rob”, “Robert Borden” and “Mike”; (iii) the number ending with 8414 was used to contact Yellow London Taxi on August 28, 2017 at 4:31 p.m. “Mike” was the contact name given. That resulted in the taxi ride Mr. Aden is known to have taken that day; (iv) the same number was used on August 29, 2017 at 3:30 p.m. in relation to a trip from 254 Marconi Boulevard to 2010. The contact name given was “Robert Borden”; and (v) 8414 was the number used again to call the taxi company at 6:09 p.m. that evening. On that occasion, “Mike” was the contact name given. Cab number 769 driven by Mr. Singh responded.

[70] Second, Ms. Gervais said that she heard “Rob” call a cab. When asked how much time elapsed before he left her residence, Ms. Gervais said “It wasn’t long.” By her estimation twenty seconds passed before she heard shots being fired.

[71] Mr. Aden’s lawyer noted that Ms. Gervais described her unit as a “party house”. There was significant traffic in and out. “Rob” stayed there from time to time. So did “Mike”. The description provided by the witness concerning the height, hairstyle and lack of facial hair is at odds with Mr. Aden’s actual appearance.

[72] Third, on consent, records provided by Rogers Communications Canada Inc. were introduced for the truth of their contents. The records reveal that Mr. Aden was the subscriber to whom the telephone number ending with 1555 was assigned. Shortly after the shooting, Ms. Muscedere located a cell phone lying in 2010’s parking lot, near the scene of the shooting. Once in his possession, Constable Policelli dialled 911 and determined its ten digit number was the one ending with 1555. While contact numbers had been deleted from her phone immediately after the shooting, Ms. Gervais told the police that the cell phone numbers ending in 1555 and 8414 rang a bell. She thought the former was the one given to her by “Rob” initially and the latter one given later to facilitate easier access.

[73] Counsel for the defendant noted that calls were placed between 1555 and 8414 in July and early August, 2017. He suggested it was clear that the two phones were being used by different persons. The cell phone to which 8414 was associated and which was used to call a taxi the evening in question was never recovered.

[74] Fourth, the knapsack found on the ground by Ms. Muscedere was identical in colour, brand and style to the one Mr. Aden was seen holding while in the rear of a Yellow London Taxi the previous afternoon. Ms. Gervais testified at the preliminary hearing that “Rob” was carrying a black backpack when he left her home.

[75] Fifth, the black hoodie located by Ms. McCarty in a bush was turned over to police and photographed. That location was just south of the pedestrian walkway that travelled in an east-west direction across 2000 and into the space behind the Walmart store. It is clear that Mr. Aden was wearing the same brand, style and colour of garment while riding in a Yellow London taxi the afternoon of August 28, 2017. According to Ms. Gervais, “Rob” was sporting a black hoodie and black shorts at the time of his departure.

[76] Counsel for the defendant argued that Mr. Aden could not have been the person wearing the Jordan hoodie at the time of the exchange of gunfire. Ms. Garside said there was nothing in the hands of the person she saw pass. He was headed in the direction of, but had not yet reached, the place where the article of clothing was left.

[77] Sixth, Mr. Aden’s DNA was extracted from the inside right cuff of the hoodie recovered the morning of August 30, 2017. The Crown acknowledges that evidence is insufficient to prove guilt on its own. The discovery of the defendant’s DNA must be considered in conjunction with the letter of opinion of forensic scientist, Alison Morris. She found: (i) that the defendant may or may not have been the last person to wear the garment; (ii) the presence of his DNA offered no information concerning the frequency of use by him; (iii) it was impossible to determine how many people had worn the hoodie; and (iv) bodily fluids could remain on an article of clothing for years in the absence of laundering. [^18]

[78] Seventh, gunshot residue particles were found on the hooded sweatshirt. According to forensic scientist David Ruddell, their presence “may be the result of the item being in proximity to a firearm during discharge or contact with another surface bearing [gunshot residue].” The defence does not dispute that the shooter was wearing the hoodie at the time gunfire was exchanged on August 29, 2017.

[79] Eighth, the time and sequence of events is worth noting. The precise time of the shooting is unknown. Around 6 p.m. was the hour mentioned most often by those able to provide an estimate. The call from 8414 to Yellow London Taxi was placed at 6:09 p.m. That Yellow London Taxi rang back just past 6:13 p.m. was also an agreed fact. Images captured by the camera mounted inside Mr. Singh’s taxi commenced at about 6:12 p.m. [^19] Mr. Singh testified that the shooting started when his approaching passenger was ten to fifteen feet away from his car. As noted, the incident was brief and ended with the participant in question running quickly toward and then along Wavell Street in the direction of 2000.

[80] Constable Policelli said he travelled to the scene of the gunfire as a result of a 6:16 p.m. broadcast. Constable Waque noted 6:18 p.m. as her time of arrival at the complex. Constable Porter testified that he was dispatched to the same location at that precise time.

[81] The images captured by the Walmart surveillance cameras started at 6:15 and 45 seconds the evening of August 29. Soon afterward, Mr. Aden appeared from the direction of 2000’s pedestrian walkway. He entered the store at approximately 6:19 p.m. and left the premises at about 6:41 p.m.

[82] Ninth, the Crown relies on Mr. Aden’s conduct while inside the Walmart store. Most of his movements between 6:15 and 6:41 p.m. were captured on video. Long trousers were purchased. The defendant entered the washroom and changed into them. He eventually left the building wearing sunglasses he had just acquired from the vision store. His appearance changed in a material way in the twenty six minutes that passed.

[83] Mr. Aden’s counsel acknowledges the defendant is the person seen in the video. He also accepted that Mr. Aden was the person seen by Ms. Garside. The theory of the defence is that the defendant was leaving the area of the shooting for an entirely innocent reason. The terms of a recognizance had facilitated his release from custody in April, 2017. They were still in force. Unlike the person seen by almost all of the other witnesses, Mr. Aden was not running when he passed Ms. Garside or when captured by video cameras. There were no apparent signs of stress or exertion. The defendant passed through a Walmart checkout lane just before 6:25 p.m. Mr. Ranson was the cashier he encountered. Mr. Ranson described Mr. Aden as friendly and casual. He said it was not uncommon for a patron to change into items of clothing they had purchased before leaving the store.

[84] Has the Crown proven that Mr. Aden was the person who discharged a firearm on the date and at the time in question while on foot in the parking lot of 2010? After considering and assessing all of the evidence and notwithstanding the deficiencies in the eyewitness testimony, the answer to that question is yes. I am satisfied beyond a reasonable doubt that Mr. Aden discharged the handgun that was found behind unit 50 at the 2000 complex. My path to that conclusion follows.

[85] Whatever may or may not have happened at Ms. Gervais’ home in the past, “Rob” was the only male person in that residence in the period leading up to and immediately before she caught the sound of gunshots. Specifically, I accept her evidence that “Mike” was not present on the day in question.

[86] I also accept her evidence concerning the clothing “Rob” was wearing and bag he was carrying. Further, “Rob” had recently completed two telephone conversations: the first in a language other than English, likely Somali and the other with a taxi company. I do not accept Ms. Sidane’s evidence that her son was incapable of speaking Somali. His heritage and his extensive exposure to the language make that testimony entirely unreliable, if not unbelievable.

[87] The fact Ms. Gervais thought “Rob” was far less than six feet tall, clean shaven and possessing hair in a tight curl is, in my view, of no moment. Ms. Gervais conceded difficulty in estimating height when cross-examined by Mr. Aden’s lawyer during the preliminary hearing. The poor quality of Ms. Gervais’ eyesight was unquestioned there. The presence of a moustache is a detail she did not notice in the still photograph shown to her until it was specifically pointed out to her. The witness correctly described the length of Mr. Aden’s hair. The extent to which same was in a curl or not, is a minor detail that does not affect the rest of the description she offered.

[88] Mr. Singh responded to a call made to Yellow London Taxi from a phone number ending in 8414. “Mike” was the contact name given. Mr. Aden was not the subscriber to whom that number had been assigned. His name is not “Mike”. However, a call had been made to the same company from the same number using the identical contact name the previous afternoon. Mr. Aden was the person who climbed into the responding taxi that day.

[89] On its own, that piece of evidence may be nothing more than curious. However, it is a piece that fits within a much larger puzzle. Furthermore, two important items were discarded in 2010’s parking lot that are also connected to the accused. The black knapsack found there was identical to the one Mr. Aden was seen carrying the previous day. A number ending in 1555 had been assigned to the cell phone Ms. Muscedere discovered. Mr. Aden was the subscriber to whom it had been assigned.

[90] The handgun found in the garbage can behind unit 50 contained ammunition of the same calibre that was found at the scene of the shooting. The person described by Ms. Rutter and Ms. McCarty was headed in the direction of that residence when seen. Ms. Garside encountered an individual who came around the corner of the exterior wall of that unit. That was not a coincidence.

[91] Soon after the incident, Mr. Aden appeared in surveillance taken by an exterior camera at the neighbouring Walmart store. He was coming from the direction of the gap that connects the rear of that property to 2000. The exchange of gunfire had occurred minutes beforehand. Mr. Aden was wearing black shorts just like “Rob”. He was wearing a white t-shirt, just as Ms. Garside had observed. Other aspects of her description did not match the images displayed on the screen. Nonetheless, the defence urged the court to accept that Mr. Aden was the person who passed that witness.

[92] Mr. Aden was not carrying anything as he approached the Walmart store. Nor was he wearing a backpack or hoodie. Is that critical? In my view, it is not. A backpack had been left in 2010’s parking lot. A handgun was deposited behind unit 50.

[93] That leaves the hoodie. There is no question the shooter was wearing it during the confrontation at 2010. That is the only explanation for the discovery of gunshot residue on the sample that was analyzed. However, Mr. Aden was wearing a t-shirt when he passed Ms. Garside, not a sweatshirt. She said nothing was in his hands. Mr. Aden’s counsel argued that in those circumstances the defendant could not possibly be the person who committed any of the offences that are before the court.

[94] I disagree. All, some or none of the testimony of any witness may be accepted on a reasoned basis. Ms. Garside accurately described the clothing that covered Mr. Aden’s upper body. Her description of the pants he was wearing was inaccurate. The handgun was not found until around 8 p.m. Almost two hours had passed since the shooting. The hoodie was not retrieved until the following morning.

[95] The evidence does not establish when the garment found its way to the spot where Ms. McCarty found it. Ms. Garside’s evidence on this point may have been wrong. It may, as well, have been accurate. However, that does not mean that the shooter was someone other than Mr. Aden. During closing submissions, counsel for the defendant argued that it only made sense for the hoodie to have been left in the same location as the handgun. Initially that may have been precisely what happened. Mr. Aden came from that direction. It is entirely possible that the article of clothing was moved before Ms. Briel made her rounds collecting garbage.

[96] Counsel for the accused asked the court to pay close attention to Mr. Aden’s manner of movement, appearance, dress, activities and demeanour while in and around the Walmart store. He never ran. To the contrary, he walked. There were no outward signs of physical exertion. He did not seem to be winded. Perspiration was not apparent. He did not appear to be agitated. He did not look back. His facial expressions were calm. He interacted with a Walmart employee in a casual and friendly manner. His physical appearance and clothing did not accord with all aspects of the testimony of a single eyewitness.

[97] All of those comments warrant consideration. They are part of the evidentiary record and must be factored into the analysis. However, I do not agree with the defence that Mr. Aden’s pace, facial expressions or attitude are particularly important. Nothing is known about Mr. Aden’s personality, demeanour or fitness level. Further, many of Mr. Aden’s actions are suspicious. His movements seemed purposeful. Within a very few minutes he found, purchased and changed into long pants. It was a modest change of appearance if Mr. Aden was not wearing the sweatshirt but far more significant if that item had been removed a short time beforehand. Newly acquired sunglasses altered his look even more.

[98] At para. 41 of Villaroman, supra Cromwell J. said this:

…to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative…

[99] After consideration of the totality of the evidence, I am of the view that test is met. The defence theory that Mr. Aden was in the area for a reason other than involvement in the incident in question, lacks an evidentiary foundation. It defies belief. It is speculative, not a reasonable alternative.

[100] After examining the evidence in its entirety, I am sure that Mr. Aden was “Rob”, that he called for a cab, had possession of, pulled and repeatedly and carelessly fired the handgun that was recovered, knowing that the lives of those in or near 2010’s parking lot were being endangered. In possessing the firearm and ammunition, Mr. Aden was violating the terms of the prohibition order and recognizance to which I have referred.

[101] Count ten of the indictment alleges that Mr. Aden also breached the terms of the recognizance by being in possession of two cell phones. The existence of and condition contained in the recognizance are admitted facts. The issue is whether the Crown has proven beyond a reasonable doubt that the defendant had physical custody of the phones to which the numbers ending in 1555 and 8414 were associated.

[102] The former was obviously in Mr. Aden’s possession as it was dropped in and recovered from 2010’s parking lot. What about 8414? As noted, Mr. Aden was not the subscriber. Nothing is known about the person who was the customer shown in the records of Rogers Communications.

[103] However, that subscriber’s device was used to communicate with Yellow London Taxi from time to time. Calls to that company resulted in Mr. Aden accepting a ride on August 28, 2017. Another taxi was sent to his location the following day. It was responding to a call made from the same phone. The accused was approaching Mr. Singh’s vehicle when other events intervened.

[104] I accept Ms. Gervais’ evidence that the phone was not hers. According to Ms. Gervais, “Rob” had two cell phones. When she dialled the 8414 number, she did so to reach “Rob”. In reality, that person was Mr. Aden.

[105] Cell phone records admitted on consent demonstrate that 8414 was frequently used to make and receive calls and to send text messages. That changed immediately after Yellow London Taxi was reached at approximately 6:09 p.m. on the evening of August 29, 2017. Every communication that followed was inbound, not outbound. To be clear, immediately after the incident, the manner of use changed completely. I am satisfied beyond a reasonable doubt that until the cell phone subsequently recovered by Ms. Muscedere was dropped, Mr. Aden had two cell phones in his possession. That violated the terms of the April 11, 2017 recognizance.

[106] The sole remaining issue relates to count one. Counsel for Mr. Aden relies on s. 34 of the Criminal Code. The current version came into force on March 11, 2013. The relevant portion of s. 34(1) provides as follows:

A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them…or that a threat of force is being made against them…

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves…from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

[107] Once again, the legal principles are clear. The subsection outlines a situation that absolves a person of criminal responsibility for something that would ordinarily be a crime. Provided there is an air of reality to each of the three elements, the Crown bears the onus of proving that Mr. Aden was not acting in lawful defence or protection of himself: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 49–54; R. v. Robinson, 2018 ONCA 767, at para. 7.

[108] The source of the evidence providing the basis for the application of s. 34(1) is irrelevant. As the Court of Appeal explained in R. v. Craig, 2011 ONCA 142, [2011] O.J. No. 893, at para. 40:

Evidence that an accused apprehended death or grievous bodily harm and believed that he…could not otherwise save one’s self will normally come from the testimony of the accused. Clearly, however, it can come from a variety of sources and it is not essential that the accused testify to give self-defence an air of reality. [^20]

[109] The evidentiary threshold is easily met in respect of the first two elements of s. 34(1). There is an air of reality to those aspects of self-defence. In fact, I would go further. While Mr. Aden does not, of course, bear the burden of proof, I have no doubt he believed, on reasonable grounds, that force was being used or threatened against him. Despite deficiencies in the eyewitness testimony, a second person was in 2010’s parking lot. He, too, was armed and was intent on harming Mr. Aden.

[110] I also have no doubt that Mr. Aden fired his weapon for the purpose of defending or protecting himself from the use of force or threatened force by another person who was shooting or about to shoot at him.

[111] That leaves the third element, namely, whether the conduct of Mr. Aden was reasonable in the circumstances. In answering that question, the preamble to s. 34(2) requires the court to consider the relevant circumstances of Mr. Aden, the other party and the act itself. A non-exhaustive list of specific factors follows. They include:

(a) The nature of the force or threat;

(b) The extent to which the use of force was imminent and whether there were other means available to respond;

(c) The person’s role in the incident;

(d) Whether the other party to the incident used or threatened to use a weapon;

(e) The nature and proportionality of the person’s response.

[112] Some aspects of the situation are clear from the evidence. Mr. Aden’s first conversation left him agitated. He called for and then went outside to meet a taxi. He was carrying a knapsack which contained a handgun and ammunition. As the defendant approached Mr. Singh’s cab, something caught his attention. Whether visual, audible or both, it caused Mr. Aden to withdraw the firearm. As demonstrated by the fact bullets were found lodged in two cars – at opposite ends of 2010’s parking lot - Mr. Aden was clearly exchanging fire with another person. That conclusion is also consistent with the testimony of several eyewitnesses.

[113] The remaining issue, however, relates to the reasonableness of Mr. Aden’s conduct in the circumstances he faced. The applicable test is well explained in Watt’s Manual of Criminal Jury Instructions:

Anyone who defends or protects…himself…cannot be expected to know exactly how to respond to or deal with the situation or to know how much force to use to achieve his…purpose. What is reasonable may include several alternatives. The issue here is not whether [the accused] believed on reasonable grounds that he had no other course of action available to him…but rather whether what [the accused] did was a reasonable thing to do in the circumstances as [the accused] knew them or reasonably believed them to be.

A reasonable person is sane and sober, not exceptionally excitable, aggressive or fearful. He has the same powers of self-control that we expect our fellow citizens to exercise in our society today. A reasonable person has the same characteristics and experiences as [the accused] that are relevant to [the accused’s] ability to respond to…the use or threatened use of force. The reasonable person is a person of the same age, gender, physical capabilities, as well as past interaction and communication with [the other person] as [the accused]. A reasonable person cannot be expected to know exactly what course of conduct or how much force is necessary in self-defence… [^21]

[114] What else can be said about the surrounding circumstances?

[115] Mr. Singh placed the approaching passenger just east of his position when a handgun was withdrawn from the backpack he was carrying. I accept that evidence. Two cars, including Mr. Singh’s taxi, were parked just to the west of Mr. Aden’s position. From all accounts, the other person of interest was in a car some distance to the east.

[116] Once bullets started to fly, those closest to the participants took evasive action. Mr. Singh quickly and fully reclined his seat. Ms. Ninham clambered down as low as she could go in the driver’s area of her vehicle. A bullet lodged itself in the door that separated her from the drama outside. Mr. Poutsiakis had not yet reached his delivery vehicle. Initially he leapt behind his car before running and hiding behind a nearby building.

[117] Mr. Aden did not follow suit. While accounts of his location differed, no one saw the accused try to take cover even though there were cars, a dumpster and a dump trailer nearby. [^22] Instead, Mr. Aden’s response was aggressive. He elected to fight. The person Ms. Quaite saw after hearing loud noises was in the middle of the parking lot. That was precisely the area where casings and a scope were found.

[118] The individual Ms. Sandison saw was reported to be pointing a gun at a car he was chasing on foot. Mr. Dow made a similar observation.

[119] It is clear from the physical evidence that Mr. Aden discharged his weapon a number of times. Why did the defendant have a weapon and ammunition at all? He was prohibited from arming himself. Why did Mr. Aden fire his weapon so many times?

[120] Too little is known about the surrounding circumstances for the third element of s. 34(1) of the Criminal Code to have an “air of reality”. Whatever the source, the evidence must meet a minimum standard. R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 provides an example of a case where that low threshold was met. As McLachlin C.J. and Bastarache J. explained at para. 98:

While this court has made it clear that a mere assertion by the accused of the elements of a defence will not be sufficient to clear the air of reality hurdle, that principle does not have any application to the present case. The accused’s testimony goes beyond merely asserting the elements of the defence, and provides a comprehensive account of his perceptions and his explanation for them. As was stated above, credibility is not an issue in air of reality analysis. The issue is not whether the accused (or any other witness) should be believed. Rather, the question is whether, if the jury were to accept the construction of the evidence most favourable to the accused’s position, the requisite inferences could reasonably be drawn.

[121] Here, there is no evidentiary basis on which to acquit Mr. Aden on the basis of self-defence. Virtually nothing is known about the “relevant circumstances of” Mr. Aden and the unknown second shooter. Very little is known about “the act” itself or its antecedents.

[122] Aside from a few pieces of physical evidence, the underlying fact pattern unfolds in a murky, gap filled fashion from the testimony of eyewitnesses whose powers of observation were affected by the same limitations that applied when they were imperfectly noting the physical appearance and clothing of one of the participants. The event was unexpected, brief and exceedingly stressful, particularly for those closest to it.

[123] Questions abound. How did the situation arise? Why? How and why did the incident unfold as it did? Answers are not self-evident and are not supplied by the evidence. It is impossible to say what one would have expected from a reasonable person because the circumstances facing the accused are largely unknown. The record provides an insufficient account of Mr. Aden’s perceptions and no explanation for them.

[124] In my opinion, the evidence in this case does not meet the low evidentiary level required before the Crown’s burden of disproving self-defence is engaged.

[125] Even if it reached that point, from the limited evidence that is available, Mr. Aden elected to engage and to fire his weapon repeatedly with others, including Mr. Singh and Mr. Poutsiakis, nearby. The defendant made no effort to take evasive action. His response was disproportionate. On this record, I am satisfied beyond a reasonable doubt that Mr. Aden’s conduct was not reasonable in the circumstances in which he found himself. The safety of others was unnecessarily and unreasonably jeopardized. Mr. Aden was not acting in lawful self-defence.

D. Conclusion

[126] For the reasons given, I find Mr. Aden guilty of counts one through five and seven through ten. Convictions are hereby entered.

“Justice A.D. Grace” Justice A. D. Grace

Delivered orally: June 28, 2019

COURT FILE NO.: 143/18 DATE: 20190628 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – AYANLE ADEN REASONS FOR JUDGMENT Grace J. Released: June 28, 2019

Footnotes

[^1]: After the parties closed their cases, the Crown asked that the tenth charge, count six of the April 26, 2018 indictment, be dismissed. [^2]: The parties’ lawyers agreed that the evidence of Ms. Smith at the preliminary hearing would be treated as her evidence at trial. [^3]: Ms. Sandison, Mr. Singh and Ms. Smith. [^4]: Mr. Poutsiakis, Mr. Dow, Ms. Ninham [^5]: Mr. Walsh did not mention a handgun. Ms. Quaite and Ms. Thorausch saw the person bend over and pick something up but didn’t know what the item was. [^6]: Ms. Thorausch said the person had the stature of a man. [^7]: Ms. Thorausch. [^8]: Ms. Ninham. That was also the upper limit of the range provided by Mr. Dow. [^9]: Mr. Walsh said he could not see the person’s lower body from his vantage point. [^10]: Mr. Singh, Ms. Thorausch and Ms. Smith. [^11]: Mr. Poutsiakas, Ms. Quaite wasn’t sure of their length. [^12]: On consent, the parties filed a document entitled “Admissions Pursuant to s. 655 of the Criminal Code of Canada” and another bearing the same title with the addition of “Volume 2”. [^13]: Counts 1 (s. 244(2)), 2 (s. 86(1)), 7 (ss. 109(1) and 117.01(1)) and 9 (s. 145(3)). [^14]: Counts 3 (s. 92(1)) and 5 (s. 95(1)). [^15]: The applicable offence sections are ss. 92(2), 109(1) and 117.01(1). [^16]: See Admissions Pursuant to s. 655 of the Criminal Code of Canada, paras. 1 and 2. [^17]: R. v. Hall, 2010 ONCA 724, at para. 138. [^18]: R. v. Donoghue, 2019 ONCA 534, at para. 3. [^19]: The time stamped on the video and still photos was 22 hours, 59 minutes and 45 seconds behind the actual time. [^20]: See, too, para. 42; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 88 and 89. [^21]: David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters Canada Limited, 2015) at pp. 1252-1253. [^22]: Ms. Thorausch did say that the person she saw when she looked out her door stepped out from behind a large green dumpster.