



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Aden, 2021 ONCA 477

DATE: 20210629

DOCKET: C67843

Hourigan, Paciocco and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ayanle Aden

Appellant

Mindy Caterina, for the appellant

Avene Derwa, for the respondent

Heard: June 24, 2021 by video conference

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

REASONS FOR DECISION

OVERVIEW

[1]

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

[2]

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

[3]

At the conclusion of the oral hearing, for reasons to follow, we denied
    Mr. Adens conviction appeal, granted him leave to appeal his sentence, but also
    denied his sentence appeal. These are our reasons.

ANALYSIS

(a)

The Conviction Appeal

[4]

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

(i)

No errors occurred relating to the Gervais statement

[5]

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

[6]

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

[7]

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

[8]

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

[9]

We reject Mr. Adens submission that this was one of those rare cases
    where the trial judge should have interfered with a tactical decision by counsel,
    as contemplated in
R. v. S.G.T.
,
2010 SCC 20
,
[2010] 1
    S.C.R. 688,

at paras. 36-37. We see no merit in the submission that Ms.
    Gervais statement was so wrought with inconsistency, and so important, that
    the trial judge should have exercised his gatekeeping function to protect Mr.
    Aden from what his trial counsel considered to be a tactical advantage.

(ii)

The verdict was not unreasonable

[10]

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

The circumstantial evidence against Mr. Aden was powerful

[11]

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

[12]

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

[13]

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

[14]

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

[15]

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

[16]

It
    is also agreed that Mr. Aden was in the area of the shooting a few minutes
    after it occurred. A witness saw a man in a white t-shirt and black shorts,
    whom Mr. Adens trial counsel suggested was Mr. Aden, leaving the property
    through a laneway close to where the abandoned handgun was ultimately found in
    a trashcan.

[17]

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

[18]

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

(iii)

The trial judge did not err in rejecting Mr. Adens mothers testimony

[19]

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

[20]

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

(iv)

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

[21]

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

[22]

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

(b)

The Sentence Appeal

[23]

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

[24]

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

[25]

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

[26]

The
    sentence imposed was entirely fit.

CONCLUSION

[27]

We
    therefore dismiss Mr. Adens appeal from conviction. His sentence appeal is
    also dismissed.

C.W. Hourigan J.A.

David M. Paciocco J.A.

B. Zarnett J.A.


