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Two years later, after a trial in É«É«À², a jury convicted three men of first-degree murder. They received automatic life sentences.

On Friday, the Court of Appeal for Ontario overturned their convictions and ordered a new trial, finding the trial judge failed to properly instruct the jury on how to determine guilt for first-degree murder. 

“While justice does not demand a perfect trial, it does demand a fair trial,” Associate Chief Justice Michal Fairburn wrote on behalf of a three-judge panel. “As I have attempted to explain, so much of this trial was done right and justice was well-served. Yet on the fundamental point of modes of participation, the jury was not provided with the tools necessary to fairly execute on their task.”

The appellate court acknowledged the judge was dealing with the early chaos of the COVID-19 pandemic at the time of the trial and “in that context, there was a real urgency to conclude the trial.”

The jury heard there was evidence of planning and deliberation. The trio arrived at Scarlettwood Court in a stolen car with stolen licence plates. The car was positioned to make a fast exit, and the shooting, captured on surveillance, happened without hesitation and for no apparent reason. A É«É«À² police detective qualified as a gang expert testified that gang members sometimes go into rival territory to shoot a random person as a display of power.

The identities of the three defendants — Abdullahi Mohamed, Trevaughan Miller and Abdirahman Islow — were established by video surveillance footage.

Mohamed testified that he was one of the shooters — but claimed Ogba wasn’t his intended target. He said the plan was to scare a drug dealer who owed him money, not to kill him, and that his co-accused also opened fire. Ogba was struck by five of the nine bullets fired. Mohamed conceded he was guilty of manslaughter. (He was the only accused to testify.) Islow was identified as the getaway driver.

Prosecutors dismissed his testimony as a fabrication, arguing that the men were violent gang members who knowingly opened fire in enemy territory with the intent to kill.

Superior Court Justice Rob Goldstein instructed the jurors on different ways the accused could be found guilty of committing first-degree murder, which is the charge they were facing, or lesser offences. 

But on the second day of deliberations, the jury asked for “some more clarity” on modes of participation. After extensive discussions with trial counsel, the judge reminded the jury they had been told numerous times already that there was more than one way for the Crown to prove they were guilty of first-degree murder. 

He also told them they need not agree on which mode of participation each was guilty of, provided jurors unanimously agreed that one of the required ways had been proven beyond a reasonable doubt. He also provided hypothetical examples.

However, the appellate court said it was not satisfied that his answer to the jury’s question “cleared matters up much.” 

The appellate court said the other six grounds of appeal did not merit a new trial.

At the sentencing hearing five-and-a-half years ago, Ogba’s mother, Margaret Nwosu, described in her victim impact statement the pain and anguish of losing her eldest son. Ogba was a role model for his younger brothers and “other young ones in our Nigerian community,” she said, and now “their light in shining armour is gone and they are all devastated.”

Nwosu, who sat through the trial, said her teen sons want to lead a normal life, but she is now “constantly worried and fearful” for them.

“I had thought that Canada was a safe place to raise my children, but with all this gun violence and killings, it’s difficult as a parent not to be concerned.”