CITATION: R. v. Omardeen, 2019 ONCJ 448
COURT FILE No.: Orangeville 18-1308
DATE: March 20, 2019
ONTARIO COURT OF JUSTICE
Central West Region
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
brandon omardeen AND stephon jaggernauth
Before Justice Richard H.K. Schwarzl
Heard on October 30, 31, November 5, 16, 20, 21, 22, December 11, 12 2018, January 7 and 25, 2019
Reasons released on March 20, 2019
Mr. Jeremy Tatum................................................................................................. for the Crown
Ms. Jennifer Hue............................................................ for the Accused Brandon Omardeen
Mr. John Raftery......................................................... for the Accused Stephon Jaggernauth
SCHWARZL, J.:
1.0: INTRODUCTION
[1.] Following a police investigation Brandon Omardeen (Omardeen) and Stephon Jaggernauth (Jaggernauth) face trial on eight charges, of which they are charged jointly on one count but separately on the remainder. All alleged offences are said to have occurred on July 31, 2017 in Orangeville.
[2.] The joint charge is possession of a weapon for a purpose dangerous to the public peace (count 1). It is alleged that sometime before 3:00 p.m. that day they ran after blue minivan occupied by Manav Lahore (Lahore) and Neeraj Lal (Lal) while waving an imitation handgun. The central issues on the joint charge are identification and the credibility of the two main witnesses, Lahore and Lal.
[3.] Jaggernauth is charged with being in possession of a controlled drug found during a search of his house after he arrested. On this charge (count 8), the only issue is whether the Crown has proven possession.
[4.] Omardeen is charged with four firearms offences (counts 2, 3, 4 and 7) and two breaches of court orders (counts 5 and 6) for allegedly firing a rifle at the blue minivan around 4:00 p.m. In his defence Omardeen has brought a Charter application alleging that his right to counsel and his right to be free from unlawful search and seizure were breached. As a remedy, he seeks to have the otherwise voluntary statement he gave to Det. Wile excluded from the evidence. The main issues on the charges faced by Omardeen are identification, the credibility of Lahore and Lal, and whether the Crown has proven beyond a reasonable doubt that any firearm was used or discharged, whether by Omardeen or anybody else. Omardeen concedes that if he is found guilty of any of the firearms offences, he is guilty of both of the breach charges.
[5.] During eleven days of trial, the Crown called evidence from twelve witnesses, including two forensic experts. Other than testifying on the Charter voir dire, Omardeen called no evidence. Jaggernauth did not call a defence.
2.0: ADMISSIONS
[6.] In order to expedite the trial, all parties made numerous admissions and agreed statements of fact outlined as follows.
2.1: Defence Admissions
[7.] Date, jurisdiction, continuity of all items seized, authenticity and accuracy of all police photographs, accuracy of all police communications and transcripts thereof, various Google maps and photographs, neighbourhood surveillance videos, police booking and prisoner logs for Omardeen, as well as the expertise, scope of opinions, and the reports of the expert witnesses were admitted by both Accused.
[8.] The defence also admitted that on the day in question both Accused resided at 230 Howard Crescent and that at the time, neither of them were lawfully entitled to possess any firearms. They also admitted that the 911 call made by Lahore and Lal is admissible as res gestae evidence.
[9.] Both Accused admitted that during separate police photos lineups on August 8, 2017 Lal identified Jaggernauth, but not Omardeen, and that Lahore identified both Omardeen and Jaggernauth.
[10.] Omardeen admitted that at the relevant time he was subject to a recognizance of bail that directed him to not possess any weapons and that he was also bound by a probation order to keep the peace and be of good behaviour. He further admitted the evidence of Special Constable Josh Gray.
[11.] Jaggernauth admitted that the controlled substance seized from his house was 20 grams of marijuana.
2.2: Crown Admissions
[12.] The Crown admitted that Omardeen’s right to counsel was breached by police at the scene. Consequently, they did not seek to adduce any utterances made by him or evidence, if any, obtained due to that breach between his arrest and giving a statement to Det. Wile.
[13.] The Crown also admitted into evidence an Orangeville Police Services media release from February 2018 which included a photo of Omardeen, an online local newspaper report dated August 1, 2017 regarding this matter, and a photo of Omardeen from the internet.
2.3: Agreed Statements of Fact
[14.] All parties consented to several Agreed Statements of Fact. These include the following.
[15.] That on the weekend immediately preceding Monday, July 31, 2017 Omardeen was supposed to be in prison serving part of an intermittent sentence, but he did not go. There was no warrant for his arrest in existence at the time of these alleged offences, nor were the police aware at the time that Omardeen had been unlawfully at large.
[16.] That video from a neighbour’s surveillance camera (Exhibits 11 and 25) noted:
(a) That 2:45 p.m. a grey Honda Accord associated with 230 Howard Crescent was travelling eastbound on Howard Crescent toward 230.
(b) That at 2:54 p.m. the blue minivan occupied by Lahore and Lal drove westbound on Howard Crescent away from 230.
(c) At 3:56 p.m. the Lahore minivan drove eastbound on Howard Crescent toward 230; and
(d) At 4:36 p.m. Orangeville Police Services vehicles were on Howard Crescent.
[17.] That sometime between 2:30 and 3:30 p.m. Lahore drove his blue minivan into the driveway of his neighbour, Robert Cotterell, on Marshall Crescent. Lahore had a passenger in the front seat who was playing on his phone. While stopped in the driveway, Lahore and Cotterell spoke for five to six minutes. At one point, Lahore became serious and asked Cotterell if he knew anything about a gun, which Cotterell did not. Cotterell recalled Lahore saying that a guy had a gun. Cotterell did not believe Lahore gave him any other details. Cotterell told Lahore to call the police and “not to fool around with kind of stuff.” Lahore agreed and said he would.
3.0: ISSUES AND ANALYSIS
[18.] As mentioned earlier, there are three groups of charges before me for trial. I intend to deal first with the charge against Jaggernauth only, then the joint charge, and finally with the charges against Omardeen only.
3.1: The charge against Stephon Jaggernauth only (Count 8)
[19.] At around 5:30 p.m. Jaggernauth was seen by police leaving 230 Howard Crescent in the presence of a woman and a child in a stroller. Shortly after, the three returned to that address but remained outside due to an ongoing police investigation. At 6:35 p.m. Jaggernauth was arrested for a gun offence and taken to the police station.
[20.] Hours after Jaggernauth was arrested, the Orangeville Police Services received a warrant to search 230 Howard Crescent. That house is a two-storey residence with a finished basement. Fisher photographed the exterior and interior of the house prior to the commencement of the warranted search photographed, and then logged, and seized items pointed out by the searching officers, Detectives Moore, Wile, and Hober during the search.
[21.] Amongst the rooms searched was a bedroom in the basement depicted in Exhibit 8, photos 37, and 41 to 55. Given the contents of the room, it seemed to be occupied by at least three people, being a man, a woman, and a child.
[22.] Inside a closet of the bedroom the police found a paint ball gun that looks like an assault rifle (Exhibit 8, photos 45 and 46).
[23.] In a dresser drawer within the room, there was a driver's licence in the name of Stephon Jaggernauth (Exhibit 8, photos 47 and 48). On top of Jaggernauth’s licence the police found a loose Röhm RG 88 blank pistol (Exhibit 8, photo 47; Exhibit 35). In another drawer of the dresser, two cased blank pistols were found. One was a Röhm RG 88 and the other was a Röhm RG 300. Boxes of blank cartridges (Exhibit 8, photos 52, 53, and 54) were also found in the dresser. In different drawer of the same dresser, police located a transparent Ziploc baggie containing 20 grams of marijuana.
[24.] In the bottom drawer of a night stand there was an envelope addressed to Stephon Jaggernauth (Exhibit 8, photos 43 and 49).
[25.] Under the mattress of the bed, police found an adult rubber mask, a canister of pepper spray, and a folding knife inside a sheath.
[26.] I find as a fact that Jaggernauth was an occupant of the basement bedroom where his identification and bill in his name were found. As an occupant of this room, I find that Jaggernauth had access to, and actual control over the room, its furnishings and its contents, including the contents of the night stand and dresser. None of the drawers were locked. The clear baggie contained obvious marijuana and was not secured or secreted in any way. Absent any evidence to the contrary, the inescapable conclusion on the evidence is that Jaggernauth knew that there was marijuana in his room and that had he exercised some measure of control over it.
[27.] Stephon Jaggernauth is therefore found guilty of Count 8.
3.2: The charge against both Brandon Omardeen and Stephon Jaggernauth (Count 1)
[28.] Count 1 jointly charges Omardeen and Jaggernauth with possessing a weapon for a purpose dangerous to the public peace.
[29.] The theory of the Crown is that Omardeen and Jaggernauth drove past Lahore’s house on Marshall Crescent and yelled at Lahore, whereupon he and Lal drove to Howard Crescent to find out what was going on. The Crown submits that both Accused chased the minivan while waving a pistol, or an imitation pistol, to frighten Lahore and Lal.
[30.] The defence submits that as against Omardeen there is no evidence of a crime, whereas as against Jaggernauth the defence submits that the evidence presented is too unreliable to safely reach a guilty verdict.
[31.] Since the only direct evidence on Count 1 is that of Lahore and Lal their credibility and reliability are central.
[32.] All parties agree that if an offence occurred as alleged in Count 1, then the time frame is between 2:45 and 3:00 o'clock, during the first of two visits to Howard Crescent by the Lahore minivan, as evidenced by the home security video.
[33.] At the time of this incident, Manav Lahore was 18 years old. His family was in the process of moving out of their home on Marshall Crescent, which is two streets away from Howard Crescent in the same neighbourhood just east of the Headwaters Hospital on Rolling Hills Drive in Orangeville. Lahore recognized Jaggernauth as a neighbour who lived near the basketball court they both used. Prior to July 31, 2017. Lahore did not know Omardeen.
[34.] Lahore testified that some time in July 2017 he was driving on a delivery errand for a customer on Howard Crescent when he passed a slow car ahead of him on Rolling Hills Drive. That car was occupied by Jaggernauth and a woman. When Lahore got to the customer’s house Jaggernauth, who had parked on a nearby driveway, approached Lahore and cursed at him. Jaggernauth was angry. Lahore recalled Jaggernauth saying such things as, “You fucking cut off my mom! You think you can do that?” and “This guy thinks I’m playing. I may have to get the ting, eh?”. Lahore told Jaggernauth to leave him alone and Jaggernauth’s mother called out “It’s OK. Leave it alone.” The incident was brief. Lahore’s evidence about this encounter with Jaggernauth was vivid, detailed, and uncontradicted. I accept Lahore’s account as true, which demonstrated an animus by Jaggernauth towards Lahore leading up to July 31, 2017.
[35.] In giving his evidence, Lahore testified that days after the driving incident involving Jaggernauth, he was at 362 Marshall Crescent with his friend Lal packing a blue Dodge Caravan minivan because his family were in the process of moving from that house. He recalled that while on the driveway, a grey Honda Accord drove by with two men in it. Lahore identified the driver as Jaggernauth and Omardeen as the passenger. The car slowed down, and the men swore and yelled at Lahore before driving past. Lahore’s recollection of the drive-by was confirmed by his report to 911 and the fact that Jaggernauth owns a Honda matching the one described by Lahore. Lahore said that he remembered speaking to his neighbour, Robert Cotterell, somewhere between 2:30 and 3:00 p.m. Lahore said that the Honda drove by his house about 30 to 60 minutes before calling the police, which was at around 4:10 p.m. Lahore therefore recalled Jaggernauth driving by his house sometime between 3:10 and 3:40 pm. The earliest of that range is not far from the time of 2:45 recorded on the neighbour’s surveillance video. Lahore’s memory of the time is consistent with that of Lal.
[36.] Lahore went on to say that after speaking to his neighbour and within an hour of being cussed at, he drove with Lal to Howard Crescent to find out what the issue was. This further recollection of timing by Lahore squares with the timing of events shown of the surveillance video. Lahore said he found it strange that Jaggernauth was still mad about the earlier incident and, being confused and upset, he wanted to find out why. When they got to Howard Crescent, Lahore recalled seeing Omardeen and Jaggernauth. Lahore stated that Omardeen grabbed a gun, ran out onto the driveway with it, raised it to his shoulder and shot once at the minivan. Lahore was not sure what Jaggernauth said or did at that time, nor was he sure where Jaggernauth was when Omardeen shot at them. When pressed, Lahore agreed that that when the shot was fired, he did not see Jaggernauth at that time, only Omardeen. Lahore remembered racing out of the neighbourhood and drove directly to McDonald’s where he called the police. Lahore disagreed he first drove to the hospital before heading to McDonald’s.
[37.] Lahore thought he only drove past 230 Howard Crescent once. Lahore did not see anybody holding a pistol and said that Lal never mentioned anyone carrying a gun nor anyone chasing them with a pistol. Lahore disagreed that two people ever chased them, remembering being chased by only one person being the man who shot at his car.
[38.] He was also certain that he never mentioned a gun to Mr. Cotterell. This would make sense if Lahore recalled only seeing a gun after speaking with his neighbour.
[39.] Overall, I found Lahore to be a generally reliable witness. However, I find that he was wrong about only going to 230 Howard once. He is contradicted on this point by (a) the video surveillance footage showing his van drove on Howard Crescent twice, (b) the agreed evidence of Mr. Cotterell, and (c) the evidence of Lal who said that they went over on two occasions.
[40.] I accept the evidence of Mr. Cotterell. He was an independent witness who was uninvolved and unaffected by the events recalled by Lahore and Lal. Cotterell remembered speaking with Lahore sometime between 2:30 and 3:30 and that Lahore, who had been driving a blue minivan, mentioned someone with a gun. Cotterell’s memory of timing is consistent with the security video.
[41.] In July, 2017 Neeraj Lal was 15 years old and a friend of Manav Lahore. He had never seen, nor heard of, either Jaggernauth or Omardeen prior to the day in question.
[42.] Lal remembered being at Lahore’s house helping Lahore pack when around 3 o'clock an older grey Honda drove by with two Guyanese or Trinidadian men inside who yelled at Lahore while he was standing on his driveway. I pause here to note that both Jaggernauth and Omardeen appear to be of Indian descent and could fairly be described as looking Guyanese or Trinidadian. Lahore told Lal that there had been an incident involving cutting someone off with their mom in the car, but Lal was not interested in the details. One occupant of the Honda had long hair and wore a white tee shirt wile the other occupant was a big man with shorter hair and a grey tee shirt.
[43.] At around 3:30 p.m. he went with Lahore who drove in a blue minivan to Howard Crescent find out what the problem was. Later, Lal testified that they went over closer to three o'clock but felt it was more than ten minutes after the Honda drove by. This correction by Lal is consistent with, and independent of, the security footage and Lahore’s testimony. The Honda was parked on the road, another car was parked in the garage, and a van was parked outside on the left side of the driveway. Lal’s memory of the location of motor vehicles is materially confirmed by police evidence that Jaggernauth’s Honda was parked on the road across from 230 Howard and that car was parked in the garage when they arrived. When they came to the house, they stayed in the minivan and saw the two men from the Honda inside the open garage. Through his driver’s window, Lahore asked the men “What was that all about?” Lal recalled that immediately after Lahore spoke both men started running toward them. The man in the grey tee shirt held either a real handgun like a Glock or a BB gun that looked real. He said that the man pointed the gun at them, but did not fire it, while running after them as they drove away. Lal did not have a crystal clear view but recalled the gun was black and looked similar to the one shown to him, being a Röhm RG 88 (see Exhibit 35). Lal was sure that the man in the white tee shirt had nothing in his hands.
[44.] As they drove away Lal told Lahore that he thought the gun might be a BB gun, so it was no big deal because he owns a similar looking BB gun himself. I infer from this part of Lal’s evidence that because he thought the item was likely a BB gun, it was not a dangerous situation. I also accept that Lal knows the difference between a cell phone and an imitation firearm and that what he saw Jaggernauth carry was definitely a gun of some sort. After driving away from the area, Lal and his friend met some neighbours on Lahore’s street who were older men and they talked. This portion of Lal’s evidence, including the timing, is materially confirmed by the evidence of Mr. Cotterell. They then went to McDonald’s for sundaes before returning to Lahore’s to do more packing. The fact that Lahore does not recall going to McDonald’s for sundaes is a minor and irrelevant discrepancy given that he too recalls speaking to the neighbour and doing more packing after being insulted.
[45.] Another discrepancy was raised. Lahore recalled there being a yard sale at his old house on Marshall Drive that morning whereas Lal recalled there being a yard sale that day at his home. This inconsistency is irrelevant because both agreed that there had been a yard sale that day where both had been present, and both were at Lahore’s old house to pack belongings.
[46.] In describing the incident where the two men ran after them while Jaggernauth was holding a weapon, Lal said they had stopped in front of 230 Howard Crescent for only a few seconds and that they drove away quickly. He was certain that he saw the gun before they turned the corner and he saw it again while the men chased on foot. Although the van windows were dirty, the unshaken evidence of Lal is that his view through the windows was not obstructed. He was firm that given both the condition of the windows and the very bright clear summer day he could see what Jaggernauth was carrying some forty feet behind them.
[47.] Lal was equally certain that Jaggernauth was wearing a grey shirt throughout the events he witnessed. In my view, the fact that Jaggernauth was arrested wearing a dark blue sports jersey does not impact on the high value of Lal’s evidence. Jaggernauth was arrested at his home a couple of hours later and after police cars and personnel were within sight of his house. Absent any evidence to the contrary, Jaggernauth had the means and opportunity to change his clothes including his shirt before the police arrived.
[48.] Lal did not know either Omardeen or Jaggernauth or their names. On August 8, 2017 Lal picked Jaggernauth out of a photo lineup (Exhibits 27 and 27.2). In selecting Jaggernauth’s photo, Lal told the officer “Yes, that’s the guy in the grey shirt. Curly hair and kind of chubby.” Lal did not pick Omardeen out of the lineup despite his photo being one available for identification.
[49.] During the search of 230 Howard Crescent, the police found three starter pistols and blank cartridges in what I have found to be Jaggernauth’s room. Two of the pistols where found in cases, with the third found loose in a drawer on top of Jaggernauth’s driver's licence. All three fit the description of the gun described by Lal in that each of them was dark in colour and could easily be mistaken for being real, even when seen close up let alone at a distance. Given that three pistols were found in Jaggernauth’s room, he had weapons similar to what Lal saw readily available to him within moments of arriving home after driving by Lahore’s. The presence of dark starter pistols in Jaggernauth’s room is confirmatory of Lal’s memory of what he saw and who possessed it.
[50.] I find that Lahore’s memory of the events of July 31, 2017 was dominated by being shot at, which relates to the second visit to Howard Crescent. It is clear to me that whatever happened in the hour or so that passed between the drive-by insults and being shot was of less overall importance to him. Lahore was concentrating on driving away while Lal was free to see Jaggernauth with the pistol while chasing them. I find that because Lal did not think being chased by man holding a BB gun was a big deal at that moment, any mention of it to Lahore probably did not make a deep impression on Lahore at that time. I find that Lahore compressed his memory of the events of July 31, 2017 into one, not two visits, because it was only the second one that he found disturbing enough to actually involve the police, despite Cotterell’s advice. Therefore, the fact that Lahore does not remember the first visit to 230 Howard Crescent does not cast any reasonable doubt on the substantially reliable testimony of Lal.
[51.] Based on an assessment of the whole of the evidence I find the following facts as they relate to Count 1. Not long before July 31, 2017 Lahore experienced a hostile encounter with Jaggernauth on Howard Crescent. Sometime before 2:45 p.m. Jaggernauth drove his Honda Accord past Lahore’s house which was around the block from his place. Jaggernauth was accompanied by Omardeen. They slowed down when they saw Lahore and they swore at him, still harbouring ill will over the recent driving incident. Perplexed by the ongoing hostility, Lahore decided to drive with Lal to Howard Crescent to get an explanation for Jaggernauth’s continuing resentment. At 2:54 p.m. the minivan drove onto Howard Crescent. On arrival at 230, they saw Omardeen and Jaggernauth standing inside the open garage of their house and his Honda parked on the road. Lahore stopped and asked them what the problem was. Immediately, Omardeen and Jaggernauth started ran toward them. Jaggernauth had one of his three starter pistols in his hand while Omardeen was empty handed. Lahore peeled away while Lal had both time and opportunity to continue looking at the pursuers and to accurately see what Jaggernauth was carrying.
[52.] After they drove away, they pulled into Mr. Cotterell’s driveway where Lahore mentioned a gun. Although Mr. Cotterell suggested going to the police, both Lahore and Lal were less concerned because it was likely a BB gun that had been pointed at them. They then packed some more before returning to Howard Crescent.
[53.] In the totality of the circumstances as I have set out, the inescapable conclusion is that Jaggernauth possessed a starter pistol for a purpose dangerous the public peace by attempting to intimidate Lahore against whom he bore a grudge that he was clearly not prepared to drop. I therefore find beyond a reasonable doubt that Stephon Jaggernauth is guilty of Count 1.
[54.] However, in the case of Omardeen, I am not satisfied that the Crown has proven his guilt on Count 1. Although I find that Omardeen actively participated in both the haranguing of Lahore as they drove by his house and in running after Lahore and Lal on Howard Crescent, there is no evidence that Omardeen possessed a weapon at that time or that he in any way was a party to the actions of Jaggernauth. Accordingly, I find Omardeen not guilty of Count 1 and I acquit him of that charge.
3.3: The charges against Brandon Omardeen only (Counts 2 to 7)
[55.] The main issues on the charges against Omardeen alone are identification and whether he fired a gun at the minivan. The credibility and reliability of the two complainants lies at the heart of these charges. The Crown also relies on other evidence to support that of Lahore and Lal. That other evidence came from a forensic firearms expert, the post-offence conduct of Omardeen, the fruits of the search of Omardeen’s home, and Omardeen’s statement to Detective Wile . The admissibility of that statement is challenged on the basis that it was the product of alleged breaches of Omardeen’s constitutional rights by police conduct.
3.3.1: Identification
[56.] With respect to the issue of identification, I am satisfied beyond a reasonable doubt that the person seen by Lahore and Lal on their second trip to Howard Crescent shortly before 4:00 p.m. on July 31, 2017 was Brandon Omardeen. I make this finding for several reasons.
[57.] First, the identification by Lahore of Omardeen being at 230 Howard Crescent is enforced the fact that Omardeen lived there at the time, which fact neither Lahore or Lal were aware of.
[58.] Second, even though Lal did not pick Omardeen out of the police lineup, he gave evidence of the description of the man with Jaggernauth that was entirely consistent with other evidence identifying the Accused. Lal saw a Honda Accord drive by his friend’s house. That Accord is owned by Jaggernauth, who lives with Omardeen at 230 Howard Crescent. He said that one occupant of the car was wearing a grey tee shirt while the other one was wearing a white tee shirt. He said when they drove by 230 Howard the first time, the two men from the car were in the garage. One was heavier set and wearing a grey tee shirt, positively identified by Lal as Jaggernauth via photo lineup. The other was wearing a white tee shirt and had long hair. When they came to 230 Howard the second time, Lal said the only person he saw was the same man with long hair and wearing the white tee. Lal’s description of the Guyanese or Trinidadian man with long hair and wearing a white tee shirt is consistent with the evidence not only of Lahore but consistent with the evidence of the officers who all testified that when Omardeen was arrested he had long hair and was wearing a white tee shirt. Lal’s description of the second man is consistent with the police photograph of Omardeen picked by Lahore. Lal’s description of the man he saw earlier with Jaggernauth and then alone later at 230 Howard never varied in any material way nor was it ever contradicted by any other evidence.
[59.] Third, I found Lahore’s identification of Omardeen being the man present when he and Lal drove past at 230 Howard compelling. Unlike Jaggernauth who Lahore recognized from prior contacts, Omardeen was unknown to him. Lahore picked Omardeen out of an independent photo lineup. Submissions were made that when Lahore wrote on many lineup photos words like “not too sure” and “possibly recognize” he did so because he thought those people might be the man at 230 Howard. I disagree. His explanation for what he wrote conforms to the officer’s instructions to note whether he recognized anyone. Lahore said that he understood those instructions to mean recognition in the widest possible sense, not just from the incident. This was a literal, but fair and careful, understanding of the officer’s instructions. Furthermore, Lahore’s note regarding identification of Omardeen in the lineup was the only clear and unambiguous statement he wrote on any picture. He penned emphatically “Yes! This is most certainly the individual that fired the weapon.”
[60.] It was also submitted that Lahore’s photo lineup identification of Omardeen was plausibly tainted because he was told the suspect’s name prior to the lineup and he might have looked Omardeen up on the internet and he may have seen his picture in police releases or news articles. I disagree. Even though he told the police prior to the lineup that the situation was on the local news and police websites, he could not have seen any photos because neither the news nor the police published a photo of Omardeen at that time. A news article was presented to the witness that contained a picture of Omardeen, but it was published months after the lineup not capable of influencing Lahore during the lineup. A photo of Omardeen taken from the internet was also shown to Lahore. It was suggested that he saw that picture, or others like it, prior to the lineup. I accept Lahore’s explanation that he had never saw such a picture because he had no need or desire to look for a picture of Omardeen. I also note that there was no evidence whether any photographs of Omardeen were posted on the internet prior to the lineup. I find that the photo lineup identification by Lahore regarding Omardeen was not tainted or affected by external influences but was solely the product of his accurate memory.
[61.] Lahore testified that he only had a brief look at Omardeen on Howard Crescent that day. However, he had seen Omardeen not long before when he and Jaggernauth were swearing at Lahore from the Honda. Given two separate opportunities for Lahore to see Omardeen, the consistency in describing him as a man with long hair and a white shirt, the similarity of his description to that given by Lal and by several police officers, and selecting Omardeen from a lineup makes Lahore’s evidence of identification reliable, credible, and true.
[62.] I find that there was no collaboration, collusion, or undue influence by Lahore or Lal on each other. Their recollections were never identical, even on important questions like the number times they went to 230 Howard Crescent. The fact that both spoke to police and with each other on the 911 call about describing the perpetrators does not negatively impact on the evidence of identification. Rather than fabricating evidence or improperly collaborating, Lahore and Lal were, in the heat of moment, trying to share information with the police in each other’s presence as accurately as possible. Even if I am wrong in this assessment, the potent identification evidence is confirmed by the spontaneous utterance made by Omardeen to Special Constable Gray in June 2018 wherein he stated that the “punk ass bitches come to my house and I get arrested”, which is a clear reference to him seeing both Lahore and Lal at 230 Howard Crescent.
[63.] Assessing the evidence as a whole, I am satisfied beyond a reasonable doubt that Omardeen was the person encountered by Lahore and Lal on the second trip to 230 Howard Crescent.
3.3.2: Admissibility of Omardeen’s Statement to Police
[64.] Before dealing with the remaining issue of whether the Crown has proven that Omardeen fired a gun at Lahore’s minivan, I shall address the admissibility of Omardeen’s statement to the police. The Accused submits that his rights under sections 8 and 10(b) of the Charter were violated by the police.
[65.] In respect of his right to be free from unlawful search and seizure, Omardeen submits that the entry by police onto his property and into his home without a warrant was illegal for two reasons. First, he argues that the police were not legally justified in entering at all. Second, he submits that upon entering, the way the police conducted the search was both unreasonable and unlawful (a) by turning over pillows despite saying they were only looking for people and weapons in plain sight, (b) physically abusing him on his arrest, and (c) planting evidence in an upstairs bedroom of his house.
[66.] In relation to rights to counsel, the Accused submits that not only was he abused by the police, but that abuse caused him to make statements about a gun both prior to, and after, told of his rights. They submit that all the improper behaviour by the police at the scene including their misconduct prior to his arrest, coupled with a delay in putting him touch with his lawyer later at the station ought to be remedied by excluding his statement to Det. Wile from the evidence.
[67.] The Crown submits that the police were justified to enter the property without a warrant prior to Omardeen’s arrest and that the search was conducted in a lawful and reasonable manner. The Crown submits that the Accused was not abused or mistreated by the police and that the police did not plant any evidence. They do, however, agree that Omardeen’s right to counsel was breached at the scene when police demanded to know where the gun was. The Crown submits that any utterances he made to the police on scene are properly excluded and, in recognition of that breach, the Crown made it clear from the outset that it would neither elicit, nor rely upon, those utterances or any evidence obtained as a result of those utterances. The Crown submits that any breaches of rights to counsel at the scene were corrected before giving his statement to Det. Wile.
[68.] With respect to the entry onto the property prior to a warrant being issued, I am satisfied that the police were legally justified in doing so for the following reasons.
[69.] The police presence in and near 230 Howard Crescent was in response to a shooting call. Prior to going there, officers saw what appeared to be a bullet hole in the frame of the passenger side sliding door of Lahore’s minivan. Police were informed that two young men were the possible perpetrators. Officers then attended the area shortly after 4:30 p.m. where their cars were used to cordon off the scene. At this point, police did not who fired the shot, nor did they know where that person or the gun was, nor if that person was armed. The situation was therefore a fluid and dangerous ongoing threat to the public. The police deployed as many as nine officers to contain the property to make sure no one entered or left the house without their knowledge. Of utmost concern was whether the alleged shooter and/or a firearm were still inside 230 Howard Crescent. Nobody resembling the two men described by Lahore and Lal could be seen when the police arrived and established their perimeter.
[70.] Not long after arriving on scene, officers learned that Omardeen was associated with 230 Howard Crescent and a photo of him was provided to them. One officer called Omardeen’s uncle to enlist his help in determining if Omardeen was in the house, and cell phones associated with Omardeen were pinged, but none of these efforts bore any fruit.
[71.] While the house was under containment, Jaggernauth exited the house and walked towards the police in the company of a woman and a baby in a stroller. Officers asked him if Omardeen was in the house. Jaggernauth told them he was not. Unable to verify this information from afar, officers approached the front door of the house. Prior to knocking, P.C. Phelps who was at the rear of the house radioed that a brown man with long hair and a white tee shirt who the police believed to be Omardeen exited briefly from a basement patio door before returning inside by the same door. Upon knocking of the front door, an elderly gentleman thought to be Omardeen’s grandfather opened it and spoke to the officers. When asked if Omardeen was in the house, the man said that he was not. At this point, Jaggernauth had returned and was objecting to the police presence on his property. The grandfather went inside telling officers to wait while he checked if Omardeen was home. On his return a few minutes later, the man repeated to police that Omardeen was not there. When officers told him that Omardeen was seen going out to the back yard, the grandfather repeated that Omardeen was not home.
[72.] At this point, police had good reason to believe Omardeen was inside the house and that the occupant was hindering the police in the execution of their duties. They also had reason to believe that Omardeen was the shooter. Given the urgency and seriousness of the situation, the officers told the grandfather and his wife to leave the house because the police were going inside to look for Omardeen. On hearing this, Jaggernauth, who was standing on the driveway, objected and told the police he didn’t want them to go inside.
[73.] I believe the officers were legitimately concerned for everyone’s safety including their own while dealing with an unresolved shooting with what appeared to be a rifle in a residential neighbourhood. They did not want a shoot out and needed to find Omardeen and the gun as soon as possible. Having made reasonable efforts to locate Omardeen by other means, the police decided to go inside. The risk of access and/or use of a firearm by an unlocated suspect in an area outside of police control justified the entry. Exigent and volatile circumstances existed such that a judicial authorization could not readily be obtained. Sections 117.04, 487.11 of the Criminal Code and common law authorities to protect public and officer safety sanctioned the entry. I therefore find that the entry onto the property and into the dwelling of 230 Howard Crescent was legally justified.
[74.] With respect to the conduct of the search, I will explain why I find that the police acted reasonably both before and after Omardeen’s arrest.
[75.] Shortly before 6:00 p.m. Sgt. Phillips went in with Constables Trude, Brennen, and Dellelce who was accompanied by his dog, Radar. All the officers carried assault rifles with them. They were ordered to search the house for people and to seize any firearms in plain view. Trude, Brennen, and Dellelce were tasked to do the search because each had prior military experience.
[76.] On entering the house, which is a two-storey residence with finished walkout basement, the officers searched, or cleared, the first floor by entering all the rooms. Each officer testified they only looked in places where a person could hide and each said that they did not look in drawers, under cushions, or in any small space for weapons. All denied flipping, turning, or moving any cushions.
[77.] Photos taken later of the first floor, but before the warranted search commenced, show some chairs and couches with displaced cushions (Exhibit 8, photos 14, 15, 16, 17). Other photos of the first floor show a couch with apparently undisturbed pillows and cushions (Exhibit 8, photos 18 and 19). Another small couch on the first floor has a stack of cushions which are obviously from unrelated furniture (Exhibit 8, photos 20 and 21) and look very much like outdoor cushions. The photographer, P.C. Fisher, did not touch anything before, during, or after taking these photographs. It was submitted on behalf of Omardeen that the dishevelled appearance of the first-floor chairs and couches contradicts the police evidence about not moving cushions, which the defence submits is demonstrative of a systematic dishonesty. I do not agree with this submission.
[78.] If indeed the police were looking for a gun by flipping cushions, one would expect they would look under all cushions, not just some. Furthermore, no drawers or cupboard doors are open, which are also obvious places to hide weapons. Lastly, the uncontradicted evidence is that after the house was cleared, but prior to it being sealed awaiting a search warrant, occupants of the house (other than Omardeen and Jaggernauth) were going in and out to gather their belongings. This is consistent with the sealing officer’s evidence that there was a gap of twelve minutes before the last door was sealed. Accordingly, I find that where cushions were moved, I cannot be sure who did it.
[79.] After clearing the first floor, Trude, Brennen, and Dellelce went into the basement. This makes sense because this is where Omardeen had reportedly been seen by Phelps. Six officers gave evidence about the search of the basement and the arrest of the Accused. Only Trude, Brennen, and Dellelce went downstairs. Phelps and Fisher remained outside until Omardeen was arrested, and Sgt. Phillips stayed in the front foyer. In analyzing the police evidence, I start by observing that each officer appeared focussed primarily on what they, and not others, were doing and saying. Given that all officers viewed the situation as highly dangerous with a real possibility of somebody getting shot, I am not surprised by an element of tunnel vision as this potentially life-threatening scenario quickly unfolded.
[80.] Upon reviewing, sifting, and comparing the police evidence regarding the search of the basement and the arrest of Omardeen, I summarize their evidence as follows.
[81.] When going downstairs, officers repeatedly identified themselves, and told Omardeen and anybody else present that he was under arrest and to come out. It was also said that if he didn’t come out the dog would be sent in. None of the calls were answered so the dog was released.
[82.] Before Radar could find anybody, Dellelce pushed against the bathroom door and was met with resistance. Believing Omardeen was behind it, he pushed the door hard pinning him in. Dellelce shouted for Omardeen to show his hands and that he was under arrest. Together with Brennen, Dellelce pulled Omardeen from behind the door. Both officers took Omardeen’s arms and while placing them to his rear, pushed him forward against the sink with his face against the mirror. He was then cuffed behind his back. Omardeen was apprehended at 6:07 p.m.
[83.] No undue force was necessary at any time because Omardeen was not resisting. Officers said Omardeen was never put to the ground, his hair was never pulled, and no one threatened him in any way. No officer threatened to release the dog on him after he was arrested.
[84.] During the arrest Trude asked Omardeen where the gun was but got no reply. No other officer said they heard this. Given the tumult, tension, and speed of events, I am not surprised or concerned by this. Trude, either alone or with Fisher, brought Omardeen out the back-patio door or escorted him to the driveway. The escort procedure was normal in that Omardeen was compliant. He walked on his own and was never dragged. No force other than guidance was used in taking him to a police car and no officer hurt him.
[85.] Omardeen never screamed or yelled in pain, nor did he seem in pain or complain of injury or pain either inside or outside the house.
[86.] Once on the driveway, where his family was present, Trude formally arrested Omardeen for weapons dangerous, pointing a firearm, discharging a firearm, and assault with a weapon. At 6:10 p.m. Trude gave Omardeen his rights to counsel who said that he wanted to speak to his lawyer, Mr. Allman. Either knowing (in the case of P.C. Trude) or not finding out (in the case of Sgt. Phillips) that he was evoking his right to speak to a lawyer, Trude and Phillips both asked Omardeen where the gun was instead of holding off questioning him as their duty required. Omardeen gave them an answer that led to an unsuccessful search of a field behind Howard Crescent. As stated earlier, the Crown has conceded that both in the basement and at the police car Omardeen’s rights to counsel were violated and they did not try to elicit the utterances made by Omardeen at the scene or any evidence gathered as a result.
[87.] Incident to his arrest, Omardeen was searched by Fisher who said he found only a pocket knife that he placed on the hood of a police car. Trude was told about the knife and advised the Accused he was being charged for carrying a concealed weapon. I note that no charge for either assault with a weapon or carrying a concealed weapon was ever processed.
[88.] After Omardeen’s arrest Phelps, Fisher, and Brennen searched the second storey of the house. They found no one nor any weapons or other evidence. They only searched in places where a person could conceal themselves.
[89.] Omardeen was transported to the Orangeville Police Services station arriving at 6:39 p.m. and was booked, which took until around 7:00 o'clock. After updating detectives, Trude called Mr. Allman at 7:21 p.m. who in turn called the station at 8:10 p.m. and spoke with the Accused until 8:21 p.m. Between 1:34 and 1:46 a.m. Det. Wile interviewed Omardeen. At the time of the interview, Wile was not aware of any conservations Omardeen had with any other officer, including the questioning of where the gun was or Omardeen’s responses.
[90.] All officers stated that they never made any promises, threats, or inducements to Omardeen.
[91.] In relation to the admissibility of the Accused’s statement, Omardeen testified on a Charter voir dire. His evidence is only used by me for that purpose and not on the trial per se.
[92.] He testified that he was in his basement bathroom when he heard officers telling him to show his hands and be arrested for reckless endangerment. They said that if he didn’t come out, they would release the dog. He said he was scared because he had skipped his intermittent sentence that weekend. Omardeen stated that Trude entered the bathroom and looked around before finding him behind the door. He said that Trude pulled his hair, which was in a bun, while telling him to come out with his hands up and repeatedly asking where the gun was. Mr. Omardeen then said Dellelce came into the bathroom whereupon both officers rammed his head into the wall and twisted his wrists while demanding to know where the gun was. He said that Brennen then entered the bathroom and all three officers pushed him into the wall. He said his wrists were bent and twisted, his hair pulled, and his faced rammed repeatedly into the wall when Fisher came in. At this point he screamed loudly in pain, “Ow, ow! It hurts! I got no gun, I got no gun. Help!” He said one of the officers asked, “Do we have to let the dog go?” Frightened, Omardeen said he told the police he threw the gun in the bush at which time they stopped abusing him.
[93.] He said that when being taken to the police car, Trude inflicted such pain that he thought his wrists would snap and he was limping. He said Fisher then joined in on the way to the driveway. Omardeen did not recall if he called out in pain. Omardeen testified that the police not only took a pocket knife but also his wallet when searched. He said that the knife and his wallet seen in Exhibit 8, photographs 31, 32, and 33 were on him when he was arrested and that the police planted those items in the upstairs bedroom.
[94.] He said he didn’t complain at the police station about the way he was treated because he was in shock, scared, and didn’t think anyone would care or do anything about it. He did, however, agree that he had an opportunity to speak with his lawyer before speaking to Det. Wile and further agreed that he never told police he was dissatisfied with the advice he received.
[95.] I do not believe Omardeen that he was abused or that the property seized from him on arrest was planted during the later authorized search for several reasons.
[96.] His evidence that his hair was in a bun is contradicted by the evidence of Lahore, Lal, and P.C. Phelps each of whom described Omardeen has having long hair prior to his encounter with officers in his basement.
[97.] With respect to his claim of being manhandled and hurt, not only is his evidence at odds with the substantially consistent evidence of the police officers but, having seen the photographs of the basement bathroom as well as the size of the officers involved, I find that it would have been nearly impossible for four, let alone three, large and policemen each armed with assault rifles to squeeze into the bathroom and act as described by the Accused. At no time did he ever complain to anybody at the scene, not even when his family who were on the driveway. Nor did he complain after being brought to the station. To the contrary, when asking upon booking if he was injured, he said “No.” Nor did he say anything to Det. Wile whom he acknowledged was fair, calm, and professional. Despite testifying that the police wrenched his arm Omardeen appeared calm and uninhibited in his movements on camera. Even though he claimed to be in a lot of pain on his way to the front of the house, no evidence was led from any of his family members who were present.
[98.] As for the allegation of planting evidence, I am not persuaded that it happened. I do, however, agree that it was sloppy of the police to lose track of an item seized on arrest. First, the evidence of Fisher on this point is that when he confiscated the knife, he told Trude, who testified that Fisher told him about the knife. If Fisher were to take the knife and then plant it, it makes no sense to tell anyone that he found the knife. Second, I accept Fisher’s evidence that Omardeen’s wallet was not seized on arrest because there was absolutely no need to plant the Accused’s wallet in the house given that there was already overwhelming information known at the time that connected Omardeen to the residence. Third, I accept the evidence of Fisher that the pocket knife photographed (and, I note, also not seized and logged) was different from the one found on Omardeen because, unlike Omardeen, I found Fisher to be a credible witness who gave consistent and reliable testimony. Fourth, the knife photographed was perfectly legal and had no distinguishing connection with Omardeen thus negating any benefit to the police by planting it. Fifth, during the voir dire Omardeen said his room was in the basement, however he told Det. Wile that his room was upstairs but that he slept downstairs. For these reasons, I do not accept the idea that the police took property from Omardeen and planted it in the house.
[99.] I conclude that the police were justified in entering 230 Howard Crescent without a prior judicial authorization to look for Omardeen or anyone else who might be involved. I also find that the manner in which the search was conducted was both lawful and reasonable. Therefore, there was no breach of Omardeen’s section 8 Charter rights.
[100.] As for the Accused’s 10(b) Charter rights to counsel, I find that his statement to Det. Wile was not the product of the breaches of these rights at 230 Howard Crescent. He was given his rights to counsel again on booking at the station. Within twenty minutes of being lodged, his lawyer was called. The delay in calling the lawyer was reasonable because (a) it was necessary to use that time to bring other officers up to date and (b) no evidence was gathered in that time. Omardeen spoke with counsel of choice in private before speaking to Det. Wile. He never complained about any of the advice his lawyer gave him. Indeed, in response to at least one question posed by Det. Wile, Omardeen declined to answer on advice from his lawyer. Prior to any questioning, Omardeen was given full rights to counsel by Det. Wile on video and was told that if he wanted to speak with a lawyer at any time, all his had to do is say so. He was also given a secondary caution which he also understood. Omardeen was calm and collected during the interview, showing no adverse effects of any claimed earlier mistreatment.
[101.] I find that in all respects Omardeen’s right to counsel was respected at the police station and that his statement given to Det. Wile was in no way influenced, caused, connected, or informed by the earlier breaches of his rights to counsel at the scene. I therefore admit Omardeen’s statement to Det. Wile into the evidence.
[102.] Having found no section 8 Charter breach and having found that breaches of his section 10(b) Charter rights to counsel at the scene were rectified at the police station, both prior to and when speaking to Det. Wile, I rule that the otherwise voluntary statement of Omardeen is admissible.
3.3.3: Shooting a Gun
[103.] Having found that Omardeen was encountered at 230 Howard Crescent by Lahore and Lal around 4:00 p.m. on July 31, 2017 the remaining issue is whether the Crown has proven that Omardeen fired a gun at Lahore’s minivan. For the following reasons I find beyond a reasonable doubt that he did. In coming to this conclusion, I rely on the evidence of both Lahore and Lal, the evidence of the firearms expert, Judy Chin, the police photographs of the minivan, the evidence of Fisher, and Omardeen’s post offence conduct of hiding in the basement until arrested.
[104.] I do not find that the expert opinion evidence regarding gunshot residue (GSR) of assistance in reaching my conclusion due to its neutral character. No GSR was found on Omardeen and, to that extent and without context, could potentially be helpful to the defence. However, the GSR expert, Mr. Andrew Wolf, explained that the detection of GSR can be highly variable: sometimes it is easy to find, other times it is not. Factors to be considered include the number of shots fired (more shots mean higher chance of accumulation); the dispersal pattern of GSR can vary depending on the make and type of gun (for example single shot long guns result in GSR being farther from the shooter); dispersal of GSR is higher when fired outdoors; wiping or cleaning of skin or clothes can reduce, but not necessarily eliminate GSR; and if the ammunition does not have conventional primer, then it does not produce GSR. Further, he stated that the absence of GSR is not conclusive that a person did not discharge a firearm.
[105.] Given that only one round of ammunition with an unknown primer type was fired on the driveway by gun of unknown length with an unknown dispersal pattern, it is not at all surprising that no GSR was found on Omardeen’s skin. Since Omardeen’s clothes were not submitted for testing, no analysis was done of them and thus of no help either way. As a result, I find the GSR evidence in this case does not raise a reasonable doubt, but neither does it assist the prosecution given the inconclusive nature of Mr. Wolf’s evidence.
[106.] Despite the forceful submissions of Crown counsel, I found that Omardeen’s statement to Det. Wile was unhelpful to me in reaching a verdict. Omardeen said very little of relevance to the charges and what he did say was not incriminating either per se or when stacked up against the other evidence.
[107.] The evidence of Ms. Chin, the firearms expert, taken together with the evidence of Fisher who examined and photographed Lahore’s minivan provided clear and compelling evidence that the minivan was struck by a bullet.
[108.] Fisher’s reliable and uncontradicted evidence is that when he removed the damaged door from its hinges and tipped it, an object fell out (Exhibit 6, photographs 7, 8, and 9). He then sent the object to the Centre of Forensic Sciences where it was examined by Ms. Chin.
[109.] Ms. Chin opined that the object submitted by P.C. Fisher was most likely a .22 calibre rifled rimfire bullet. She went on to say a bullet of this nature likely caused the damage depicted by the photographs contained in Exhibit 6. She described the entry point (Exhibit 6, photographs 3, 4, and 5) as an oval, not a round hole, meaning that the bullet entered on an angle, most likely from behind and to the right of the car, which matches the description given by both Lahore and Lal that the shot came from behind and from their right as they sped away once they saw Omardeen on the driveway raising the firearm. She then testified that the bullet changed direction upon entering the door and lost velocity as it travelled inside, denting the interior front edge of the door frame, and in the absence of an exit hole, fell due to deformation and/or loss of velocity.
[110.] The expert also opined that the damage was caused by a high velocity impact, being a velocity exceeding that which any BB or pellet gun is capable. She said the ammunition used was made for rifled long guns and pistols, but she could not tell which rifled weapon was used in this case. Ms. Chin said that the damage she saw in the photos is characteristic of high velocity bullet striking a moving car. Her description of the velocity of the bullet, the type of firearm needed to create the damage, and that the damage is consistent with being done to a motor vehicle in motion is entirely consistent with the evidence from Lahore and Lal that the gun used appeared to be a rifle and that it was fired at them as they drove away.
[111.] Ms. Chin said that when a bullet hits a motor vehicle, whether in moving or not, it will remove paint by flaking around points of impact damage, as was the case here. However, she could not testify as to when the car was damaged. In examining the photographs of the car, three things are obvious. First, that it is a well-worn vehicle due to the presence of rust spots on the hood and rear right fender and a missing bumper strip on the front passenger door. Second, the car is dirty, but not filthy. The exterior, including the windows, is covered with a film of dust and light dirt as is the leading edge of the rear right passenger door frame. Third, that the metal exposed due to flaking at the entry hole and the dent inside the door frame is in pristine condition, being rust and dirt free.
[112.] Lahore said that when he and Lal drove to 230 Howard Crescent to sort out what their problem was, the passenger side of his car was closest to the house. This is confirmed by the home security video and the location of the bullet hole. He saw Omardeen and Jaggernauth inside the open garage. When he stopped and asked what the beef was, Omardeen said “Don’t worry about it”, grabbed a gun, ran out of the garage onto the driveway, then loaded the weapon. He said Jaggernauth did not leave the garage. Lahore stepped on the gas and drove away as soon as he saw the gun. He looked at his side mirror through the open front passenger window and could see Omardeen raising the gun up to his shoulder and aiming with two hands. In court, Lahore demonstrated what he saw, which was a motion associated with aiming a long gun such as a rifle. He then felt the jolt of an impact at which time Lal exclaimed, “Yo! Step on the gas!” Lahore recalls going directly to McDonald’s whereas Lal recalled going to the hospital first, then McDonald’s. Either way, each place was a wide-open public space and thus made Lahore feel safe. Lahore’s view was partially obstructed because he had to look past Lal to see Omardeen come out of the garage. His view of the gun being raised and aimed was indirect insofar as he saw it through a mirror while speeding away. He agreed that dust and dirt can obscure one’s view through a window, but he insisted that he had a good view of what he saw. Lahore had only a few seconds to make all these observations. Despite these limitations Lahore’s memory of the kind of gun and how it was used is materially supported by the evidence of Ms. Chin, is consistent the documented damage, and is substantially similar to Lal’s description.
[113.] Lal recalled that when he and Lahore went back to Howard Crescent, Lahore asked through the open front passenger window what the problem was, to which the guy with long hair wearing the white tee said, “Don’t worry about it” grabbed a gun, and then came out of the garage with it, running past a vehicle parked in the driveway as he raised and aimed it. Lal then ducked down and shouted to Lahore “We have to go!” at which point a shot struck the right rear passenger door frame as they sped away. Lal heard the shot but did not see it. Lal then exclaimed, “That’s a real gun!” I find this utterance is significant as it highlights the serious danger felt by the witnesses during this situation versus the relative calm felt earlier when the handgun he saw in Jaggernauth’s hand was probably nothing more than a BB gun. Lal thought the gun was a rifle with a scope on it. Although Lahore did not identify a scope on the gun, both witnesses were sure that the weapon was a long gun. The whole episode lasted not more than thirty seconds. They then drove to the hospital nearby before deciding to drive to McDonald’s which was farther away from the scene. As with Lahore, Lal’s evidence is substantially confirmed by the evidence of the firearms expert and by the damage to the minivan.
[114.] The claim by both Lal and Lahore that the car was shot that day is fully supported by the unspoiled cleanliness of the damaged areas on the dusty minivan. Had the damage occurred on a prior day, it is more likely than not that the elements would have weathered the exposed metal.
[115.] The evidence of both Lahore and Lal was compelling. Any differences between their recollections were minor. Neither spoke in great detail about what they saw when they initially spoke with the police and they respected the direction of the police to speak with no one about it outside the courtroom. Their vivid and credible testimony of Omardeen shooting a rifle and striking the minivan is confirmed by the independent expert and physical evidence.
[116.] I also find that Omardeen’s post offence conduct of hiding in the basement is evidence that supports findings of guilt. The uncontested evidence is that Omardeen had skipped his intermittent jail time the days immediately before this incident. There was no direct evidence led as to why Omardeen was hiding in his basement until flushed out by the police. It was submitted that it was reasonably possible that he hid because he did not want to get caught for being unlawfully at large. I disagree.
[117.] Omardeen was seen earlier that day in public as a passenger in Jaggernauth’s car, was seen running along his street not long after, and was standing in a garage for all to see. He had no way of knowing that Lahore, Lal, or a neighbour might call the police nor could he know that a random police car would come past at any moment during either episode. I find that he was unconcerned about being in public that afternoon despite knowing he had skipped jail.
[118.] Furthermore, the undisputed evidence is that while searching the house Trude called out, “Brandon, I know you're down there. Come out with your hands up. This isn’t a big deal. Nobody got hurt.” and that Dellelce yelled “Anybody in the basement, you're under arrest.” These statements conveyed clearly to Omardeen that the police were there due to something other than him skipping jail. In his statement to Det. Wile Omardeen described in detail the steps he took to smuggle drugs into prison, demonstrating that he is not afraid of the rules or authority.
[119.] On the totality of the evidence, I find that Omardeen could not have reasonably believed that three officers with a dog yelling at him to surrender was in any way a proportional response to missing a weekend in jail. To the contrary, the only conclusion to be reached on the admissible evidence is that Omardeen hid from the police because he knew he had fired a gun at a passing car, which is a very serious crime that provoked an immediate and nearly combat-like police response.
[120.] For all the reasons stated, I therefore find Brandon Omardeen guilty of pointing a firearm (Count 2), guilty of unauthorized possession of a firearm (Count 3), guilty of discharging a firearm with intent (Count 4), and guilty of possession of firearm knowing its possession was unauthorized (Count 7). Pursuant to the submissions made by counsel and having found Omardeen guilty of at least one firearm offence, I also find him guilty of breach of probation (Count 5), and guilty of breach of recognizance (Count 6).
4.0: CONCLUSIONS
[121.] Based on my reasons for judgement set out herein, my verdicts are as follows:
Jointly charged
Count 1, s. 88 CCC – Omardeen not guilty; Jaggernauth guilty
Omardeen only
Count 2, s. 87 CCC – guilty
Count 3, s. 91(1) CCC – guilty
Count 4, s. 244(1) CCC – guilty
Count 5, s. 733.1 CCC – guilty
Count 6, s. 145(3) CCC – guilty
Count 7, s. 92(1) CCC – guilty
Jaggernauth only
Count 8, s. 4(1) CDSA - guilty
Richard H.K. Schwarzl,
Justice of the Ontario Court of Justice