



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    the victim or witness shall not be published in any document or broadcast or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    participant shall not be published in any document or broadcast or transmitted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) societys 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

CITATION: R. v. Omardeen, 2021 ONCA 166

DATE: 20210318

DOCKET: C67170

Tulloch, Huscroft and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Omardeen

Appellant

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 judges 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 appellants submissions. The trial judges
    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 judges decision that the appellants identification was
    established beyond a reasonable doubt is unreasonable. Duty counsel says that
    the witness Lals 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 Lahore 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 appellants name before the identification process and gave somewhat
    equivocal answers about whether he had seen the appellants photograph on the
    internet prior to identifying him.

[5]

We do not accept this submission.

[6]

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

[7]

The trial judge considered and rejected the evidence that Lahores photo
    lineup identification of the appellant was tainted because he was told the
    appellants name prior to the lineup and might have looked him up on the
    internet. The trial judge accepted that Lahores evidence was solely the
    product of his accurate memory. He found that there was no collaboration,
    collusion or undue influence by Lahore or Lal 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 Lahore and Lal was the
    appellant. Although Lal 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 Lahore picked out of the lineup. There is no basis
    for this court to interfere with the trial judges findings.

[9]

Duty counsel argues, secondly, that the trial judge erred in finding
    that the appellants 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 appellants post-offence conduct played only a minimal role in
    the trial judges finding of guilt. Having found the evidence of Lahore and Lal
    compelling and confirmed by independent expert and physical evidence, the trial
    judge went on to say that the appellants 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 appellants 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 appellants lengthy criminal record with violent offences and
    weapons crimes. The sentencing judges 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.


