Publication Restriction Warning

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1) , (2) , (2.1) , (3) , (4) , (5) , (6) , (7) , (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15 ; 2015, c. 13, s. 19

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court of Appeal for Ontario

DATE: 20210318 DOCKET: C67170

Tulloch, Huscroft and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Brandon Omardeen Appellant

Counsel: Brandon Omardeen, acting in person Michael Lacy, appearing as duty counsel Michael Fawcett and Gregory Furmaniuk, for the respondent

Heard by video conference: March 11, 2021

On appeal from the conviction entered on March 20, 2019 and the sentence imposed on June 21, 2019 by Justice Richard H.K. Schwarzl of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of pointing a firearm; possession of a firearm without a license; discharging a firearm with intent to endanger; breach of probation; breach of recognizance; and possessing a firearm knowingly without a license. He was acquitted on a joint charge of possession of a weapon dangerous to the public peace.

[2] The appellant alleges numerous errors by the trial judge and contests the trial judge’s credibility and reliability findings. He points out that no gunshot residue was found on him and says this means he could not have been the shooter.

[3] We see no merit in the appellant’s submissions. The trial judge’s credibility and reliability findings are entitled to deference and there is no basis for this court to interfere with them. As for the absence of gunshot residue evidence, the trial judge heard expert evidence and explained why the absence of gunshot residue did not raise a reasonable doubt.

[4] Duty counsel makes two submissions on behalf of the appellant. First, he submits that the trial judge’s decision that the appellant’s identification was established beyond a reasonable doubt is unreasonable. Duty counsel says that the witness N.L.’s ability to provide a detailed description of the shooter was at odds with his inability to pick the appellant out of a photographic lineup. The witness M.L. was not in as good a position to identify the shooter, and his positive identification of the appellant is suspect because he was aware of the appellant’s name before the identification process and gave “somewhat equivocal” answers about whether he had seen the appellant’s photograph on the internet prior to identifying him.

[5] We do not accept this submission.

[6] M.L. knew Jaggernauth, who was a nearby neighbour, but did not know the appellant. N.L. did not know either man. Both N.L. and M.L. identified Jaggernauth from a police photo lineup but only M.L. identified the appellant. His identification of the appellant was emphatic, as he wrote: “Yes! This is most certainly the individual that fired the weapon.” M.L.’s identification was enhanced by the fact that although the appellant lived at 230 Howard Crescent, neither M.L. nor N.L. knew this.

[7] The trial judge considered and rejected the evidence that M.L.’s photo lineup identification of the appellant was tainted because he was told the appellant’s name prior to the lineup and might have looked him up on the internet. The trial judge accepted that M.L.’s evidence was solely the product of his accurate memory. He found that there was no collaboration, collusion or undue influence by M.L. or N.L. on each other and found their evidence “compelling” and confirmed by the physical evidence.

[8] The trial judge provided clear and cogent reasons for being satisfied beyond a reasonable doubt that the person seen by M.L. and N.L. was the appellant. Although N.L. did not pick the appellant out of the police lineup, his description of the appellant was consistent with other evidence identifying the appellant, as well as the description of the police officers and the photograph of Omardeen that M.L. picked out of the lineup. There is no basis for this court to interfere with the trial judge’s findings.

[9] Duty counsel argues, secondly, that the trial judge erred in finding that the appellant’s attempt to avoid being arrested demonstrated consciousness of guilt. The appellant was unlawfully at large when the police attended 230 Howard Crescent following the shooting and he had reason to avoid arrest that had nothing to do with the shooting.

[10] We disagree.

[11] First, we note that the appellant’s post-offence conduct played only a minimal role in the trial judge’s finding of guilt. Having found the evidence of M.L. and N.L. compelling and confirmed by independent expert and physical evidence, the trial judge went on to say that the appellant’s post-offence conduct supported the finding of guilt.

[12] The trial judge did not err concerning the post-offence conduct evidence. There is no question that the appellant was hiding in the basement of 230 Howard Crescent following the shooting. The trial judge considered and rejected the argument that he was hiding to avoid arrest for being unlawfully at large. In all of the circumstances, it was open to the trial judge to conclude that the only plausible inference was that the appellant was attempting to evade the police because he was the shooter. This inference was amply supported by the circumstances surrounding the appellant’s arrest at the scene following the shooting – several police officers, with a police dog, yelling to the appellant to surrender – all of which indicated that the matter was far more serious than an arrest for failing to report to serve an intermittent sentence.

[13] The appellant received a net sentence of 61 months’ imprisonment after receiving credit for 34.5 months’ time served. We see no error in principle nor is the sentence demonstrably unfit. The list of aggravating factors was extensive and included the appellant’s lengthy criminal record with violent offences and weapons crimes. The sentencing judge’s decision as to credit for presentence custody is entitled to deference. In summary, there is no basis for this court to interfere with the sentence on appeal.

[14] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.

“M. Tulloch J.A.”

“Grant Huscroft J.A.”

“J.A. Thorburn J.A.”