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

July 15, 2016
Ontario Superior Court of Justice

2016 ONSC 4631
Evidence admitted pursuant to principled exception to hearsay rule
January 5, 2024
Court of Appeal for Ontario

2024 ONCA 9
Appeal dismissed