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| John L. Hill |
Nnane’s defence counsel, Toronto criminal lawyer Dirk Derstine, had argued that the jury should also consider whether Nnane may have been the driver of a car from which the real shooter emerged to commit the crime and, therefore, the jury should also consider that Nnane was just a party to the offence. Superior Court Justice Kelly Byrne rejected that argument. It was Derstine’s position that his client had no motive to kill Anzolona. A March 28, 2019, Toronto Star article quotes Derstine as saying the Crown theory that Nnane had exited a liquor store to get a gun from his girlfriend’s car and opened fire on Anzolona and Mullapudi was “an imaginative little story.”
Nnane was sentenced to life imprisonment without eligibility for parole for 25 years. The sentence imposed for the death of each victim was to run concurrently from the date of Nnane’s arrest, May 1, 2016. In June 2024, Derstine and co-counsel Laura Remigio attempted to overturn the verdict by bringing a motion to introduce fresh evidence from Alexander Fountain, who had been on the run at the time of the trial. Fountain had stated that a third man, the late Jaiden Jackson, was, in fact, the shooter.
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Nnane had not testified at his trial but submitted a confirmatory affidavit supporting Jackson’s involvement for consideration on the new evidence motion.
In considering whether to admit Fountain’s statements as fresh evidence, the appeal court reminded itself that the interests of justice require finality and admission of fresh evidence, especially after several years, is exceptional (R. v. Allen, [2018] O.J. No. 2966). It also reviewed the three criteria to be considered when fresh evidence is presented: (a) admissibility, (b) cogency and (c) due diligence (R. v. Palmer, [1980] 1 S.C.R. 759).
The Crown accepted that Fountain’s evidence was admissible. The assertions were direct evidence of Jackson’s connection to the murders and would be admitted as evidence of a known third party (R. v. Rudder, 2023 ONCA 864). Fountain would likely have been called as a witness at trial had he not been illegally at large.
However, the Court of Appeal remained unconvinced that Fountain’s evidence could pass the cogency and due diligence tests. In qualitatively assessing the proposed fresh evidence outlined in Truscott (re), 2007 ONCA 575, Fountain’s evidence is highly relevant in identifying the shooter; the video presented at trial was unclear. However, the appeal court stated that the ultimate credibility or reliability of the proposed evidence is not the determinative factor. Instead, the court must determine if the evidence is sufficiently compelling to warrant its admission. The court must look at the potential value of the evidence as well as the credibility of the witnesses (R. v. Snyder, 2011 ONCA 445).
The court’s majority held that Fountain could identify the shooter, but his evidence did not come close to being reasonably capable of belief. No finder of fact could reasonably believe it. Fountain has a lengthy criminal record, including crimes of dishonesty. He is serving a life sentence and has reason to help his life-long friend, the appellant. Further, Fountain’s evidence that he conversed with Nnane shortly before the shooting is not borne out by the security footage presented at trial. Fountain and Nnane are one cell apart in prison and see and talk to each other daily. It is inconceivable that their evidence is not the product of collusion. Such collusion strikes at the heart of Fountain’s credibility and reliability. The fresh evidence motion was dismissed.
The court then turned its attention to determine if the verdict was unreasonable. A verdict is unreasonable if it is one that a properly instructed jury acting judicially could not reasonably render (R. v. Biniaris, 2000 SCC 15).
The jury’s verdict did not depend on eyewitness identification. It was supported by a substantial body of circumstantial evidence implicating Nnane. The appellant’s attempt to avoid police for two days after the shooting can also be conduct pointing to guilt.
There was ample basis for a jury to be satisfied beyond a reasonable doubt that Nnane’s actions were premeditated and not impulsive or spontaneous. The life/25 sentence stands.
This is the first half of a two-part series.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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