Summary
41150
David Odesho v. His Majesty the King
(Ontario) (Criminal) (By Leave)
Keywords
Criminal law — Charge to jury — Evidence — In identity cases that turn on reliability of eyewitness identification evidence, is silence or non-objection of trial counsel relevant to whether jury was accurately and sufficiently instructed — How should trial judges caution juries about ante mortem statements from unsavoury declarants who, if alive, would have attracted a Vetrovec-style caution?
Summary
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Mr. Sadiq was shot and killed and Mr. Eyup was shot and wounded by a gunman who entered their café. That night in hospital, Mr. Eyup identified Mr. Odesho, a patron of the café, to the police. Hours later, he identified Mr. Odesho in a photo on an officer’s cellphone. He also identified Mr. Odesho in-dock at trial. Mr. Kodede, a witness outside the café, identified Mr. Odesho as the man he saw fleeing the café after the shooting and appearing to be carrying a gun. There were significant frailties in both witnesses’ identification evidence. Mr. Eyup also testified that Mr. Sadiq, a person of unsavoury character, told him immediately before the shooting that he had banned Mr. Odesho from the café earlier that day. Defence counsel requested and obtained a Vetrovec warning with respect to Mr. Eyup but no Vetrovec warning was requested or given with respect to Mr. Sadiq. A jury convicted Mr. Odesho of the second degree murder of Mr. Sadiq and aggravated assault of Mr. Eyup. The Court of Appeal dismissed an appeal.
Lower Court Rulings
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