John Hill |
On June 6, 2014, Odesho and his friend Fade Dawood were at Baggio’s Café in Vaughan. They left to go to a Tim Hortons in a white Mazda that had been rented to Dawood over a week earlier.
Meanwhile, Sarhad Sadiq and Behget Eyup also spent some time at Baggio’s.
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Dawood later told police that he drove Odesho to a parking lot, where Dawood was told to get out of the car. Odesho drove away. Police later located the abandoned Mazda and were able to detect a single particle of gunshot residue on the gearshift of the car.
Odesho called no evidence at trial and did not testify. The jury returned a verdict of not guilty on the first-degree murder charge but guilty of second-degree murder. The appeal dealt solely with the conviction; the sentence appeal was abandoned. Odesho’s counsel made a motion to admit fresh evidence in hopes of being granted a new trial. That evidence consisted of a series of charges that had been brought against Dawood subsequent to the 2014 incident. Charges included firearms charges and breach of probation.
All this was probative, Odesho’s counsel maintained, because it lent credence to the argument that the gunshot residue may have come from Dawood, not Odesho.
The Crown opposed the fresh evidence motion firstly on the grounds that police synopses are not in themselves evidence of gun possession. Secondly, the gun possession information came after the shooting. Most importantly, trying to point to Dawood as the shooter ran directly contrary to the position taken at trial where Dawood was presented as an important exculpatory witness for the defence. At trial, defence counsel urged a jury to take Dawood’s evidence on its face.
The Court of Appeal dismissed the fresh evidence motion as non-compliant with the requirements for admission as set out in R. v. Palmer [1980] 1 S.C.R. 759. Specifically, fresh evidence will not be admissible if (1) with due diligence, it could be adduced at trial; (2) the evidence must bear upon a decisive issue at trial;(3) the evidence must be reasonably capable of belief; and (4) the evidence taken together with evidence at trial could affect the result. Here, the court held that the jury had been warned of the limitations on the use of the gunshot residue evidence and, even if admitted, would be unlikely to put the verdict into question.
Furthermore, there was no error in the admission of the ante mortem statements of the person who was shot. The words spoken before Sadiq died that were allowed into evidence were that Sadiq had banned Odesho from the café because Odesho had brought a gun into the establishment some days earlier. Eyup who recounted the conversation had no reason to implicate Odesho in the shooting falsely or to make up the utterances simply to bolster his identification of Odesho.
The Appeal Court also considered grounds that the trial judge erred in her charge on identification evidence. Arguments in this regard were summarily dismissed.
The problem with the appeal suggests that the defence theory changed from the time of trial until the appeal. Treating Dawood as a credible witness at trial and then accusing him of the murder when going for an appeal might be acceptable if the two had not been together throughout. One of the two men knew which of them was the shooter. Obviously, the theory of the defence going into the trial was that Odesho was innocent in the Sadiq shooting.
Although Odesho had no obligation to take the stand, one wonders why the testimony of Dawood would have been acceptable at trial when his credibility was challenged in an attempt to introduce fresh evidence on appeal. It was a case of not succeeding initially and then trying again with a different strategy. Ultimately, it resulted in not succeeding a second time.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and 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). Contact him at johnlornehill@hotmail.com.
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