HER MAJESTY THE QUEEN — v. —, 2017 ONCJ 925

ONTARIO COURT OF JUSTICE Scarborough – Toronto CITATION: R. v. Omardeen, 2017 ONCJ 925 DATE: December 8, 2017 BETWEEN: HER MAJESTY THE QUEEN — AND — BRANDON OMARDEEN ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) For the Crown S. Walker For the Defendant J. Hue Heard: Sept 5, Oct. 3, 31, 2017 REASONS for JUDGMENT RUSSELL SILVERSTEIN, J.: A. INTRODUCTION [ 1 ] Mr. Omardeen is charged with assault, assault causing bodily harm, assault with a weapon and two counts of fail to comply with a recognizance.

These charges arise out of an incident that occurred on February 11, 2017 at the home of the complainant, Angel Bryan. [ 2 ] The Crown called only one witness, Angel Bryan. Mr. Omardeen called no evidence. [ 3 ] As concerns the various assault charges, it is alleged that Mr. Omardeen assaulted and choked Ms. Bryan at least twice, once while wielding a knife. According to Ms. Bryan, he and she were in a boyfriend/girlfriend relationship at the time. [ 4 ] As concerns the alleged failures to comply, the Crown alleges that Mr. Omardeen was living with Ms.

Bryan and thus not residing with his surety at the time, and that he was outside his residence, both contrary to the terms of a recognizance that the defence admits was binding on him at the time. [ 5 ] The principal issue on all these charges is the credibility and reliability of Ms. Bryan. As concerns the alleged failures to

comply there is the added issue of whether the charges are made out on the evidence of Ms. Bryan, should her evidence be accepted. B. EVIDENCE (

a) Introduction [ 6 ] Ms. Bryan’s testimony took place over three days. She essentially testified that the accused attacked her on at least two separate occasions, once with a knife. [ 7 ] Her cross-examination revealed several inconsistencies between her testimony and her statement to police on the night in question. It also revealed that she had pleaded guilty and received a discharge for a charge of fraud in 2017.

Further, it is clear from her evidence that she lied to the police concerning the identity of an eye-witness to the altercation, and that she repeated that lie in her testimony. [ 8 ] The Crown argues that notwithstanding these problems with Ms. Bryan’s testimony, I should nonetheless accept her evidence. [ 9 ] The defence argues that Ms. Bryan’s lack of credibility and reliability as a witness render her testimony incapable of proving the case beyond a reasonable doubt. (

b) Ms. Bryan’s Account of the Events [ 10 ] On the day in question Mr. Omardeen was at Ms. Bryan’s home as he often was. As she put it, he stayed there “part-time”. As for whether he had slept there the night before, Ms. Bryan was not sure. [ 11 ] Early in the day Mr. Omardeen was picked up by a friend and took a trip to the beer store. Ms. Bryan was unsure whether she went along but was certain that Mr. Omardeen went and came back with some drinks. [ 12 ] Around dinner time Ms. Bryan prepared some food for Mr. Omardeen and his client, whom she knew as “Press”. (Ms.

Bryan kept this knowledge from the police when she spoke to them later that night, and from the Court during her testimony. Her explanation for this omission is addressed below when I discuss her evidence on cross-examination.) [ 13 ] While Mr. Omardeen did his tattooing Ms. Bryan began to scroll through his phone. This upset Mr. Omardeen and he grabbed the phone back. Ms. Bryan was upset at this gesture and took Mr. Omardeen’s cigarettes and went into the next room. Mr. Omardeen came into her room soon thereafter and pinned Ms. Bryan to the bed.

She struggled to get free and when she did she crushed his cigarettes in front of him. Mr. Omardeen left the room and returned wielding a knife. He attacked her on the bed again. The assault continued onto the floor where he wrapped her head in his arms, choked her and banged her head against the floor near the closet causing her to bleed from the mouth. [ 14 ] Ms. Bryan eventually grabbed a metal bar and used it to chase Mr. Omardeen and his client, “Press” from the house. [ 15 ] Ms. Bryan decided at first not to call the police, but to let it go. She showered and left the house.

As she was walking to her destination she was attacked from behind and pushed to the ground. She chased the perpetrator but did not get a good look at him. Believing that Mr. Omardeen was somehow behind the attack she decided to go to the police and report both incidents. [ 16 ] Many photographs of her various minor injuries were taken by police, one of which shows some bleeding inside her lower lip. Another photo shows a chipped tooth. Both of these injuries were a result of the assaults in the bedroom. Police attended at the house and took pictures of the bedroom.

Several of the photos show blood on the wall near the floor, near the closet. (

c) Cross-examination [ 17 ] Ms. Hue cross-examined Ms. Bryan in great depth. [ 18 ] Ms. Bryan admitted that she had lied to police and the Court concerning what she knew of the identity of Mr. Omardeen’s tattoo client. She told the police she didn’t know who he was and repeated that lie in her examination-in-chief. Ms. Hue suggested that she lied about this so as to not lead the police to any witnesses to the event who would contradict her.

She denied this and explained that she lied about it because she was afraid of what “Press” might do if he were dragged into the affair. [ 19 ] It was also established that in 2016 Ms. Bryan had entered a Canadian Tire store with an accomplice to whom she had been introduced by a recent acquaintance. Together they tried to open a fake credit card account. Ms. Bryan pleaded guilty to this offence in 2017 and received a discharge. [ 20 ] On cross-examination Ms. Bryan quite candidly and fairly recounted the details of this fraud.

She explained that she had recently lost her job and had met a rather unsavoury man at a bar who had put her up to this. Presumably, although she was not asked, some financial reward was promised to her for her participation. [ 21 ] There were some inconsistencies between her statement to police and her testimony even though Ms. Bryan took the opportunity to review her video statement before testifying. Generally, the allegations to the police were more detailed and serious than the allegations made at trial. [ 22 ] Ms. Bryan did not appear at the first trial date. She testified that she was not subpoenaed.

She was sent an email the night before the trial which she did not read until sometime the next morning, after the trial was to begin. She called the courthouse but was told not to bother coming and that a new date had been set. Sometime before the new date she had reconciled somewhat with Mr. Omardeen who had asked her to go to the police and put an end to the prosecution. She did so and was told that it was too late and that she would have to testify. When asked on cross-examination if she went to the police to recant her testimony she said she did not

understand the word “recant” and had simply been trying to withdraw her complaint for his benefit. [ 23 ] Ms. Hue suggested to Ms. Bryan that on the day in question she got angry at Mr. Omardeen for not giving her any money for drugs and had physically attacked him. Ms. Hue suggested to her that her injuries were caused by Mr. Omardeen’s defence against her aggression. Ms. Bryan emphatically denied these suggestions. C. ANALYSIS [ 24 ] I am being asked by the Crown to convict Mr. Omardeen on the strength of the evidence of one witness, Ms.

Bryan, who has demonstrated a somewhat casual commitment to telling the truth, not just to the police, but also when under oath at the trial. Her recent finding of guilt for attempted fraud casts a further shadow over her honesty. [ 25 ] Mr. Walker for the Crown argues that Ms. Bryan’s demeanour suggests she was being honest with the Court. While I agree that Ms. Bryan seemed honest, demeanour can be misleading. [ 26 ] Mr. Walker argues further that Ms. Bryan’s explanation for lying about what she knew about “Press” ought to be accepted, i.e. that she was afraid of what he might do if she named him.

The problem with that explanation is that it emanates from Ms. Bryan herself, and thus doesn’t help neutralize her admitted lie. [ 27 ] Mr. Walker also points to the injuries to Ms. Bryan, which he argues must have occurred in her home, given the presence of blood on the wall of her room. While it is safe to conclude that these injuries were inflicted in her room, and not during the second assault on the street, the blood does not shed light on how the injury was incurred. It is a reasonable possibility that it occurred during an altercation with Mr. Omardeen that was not criminal on his part. D. CONCLUSION (

a) The Assaults [ 28 ] It very well may be that Mr. Omardeen committed the assaults alleged by Ms. Bryan. Because of the problems with Ms. Bryan’s credibility as out​lined above, and the absence of confirmatory evidence, I simply cannot be sure that these alleged assaults were committed. As such, I am left in a state of reasonable doubt regarding the assaults. Counts #1 – 3 are dismissed. (

b) The Failures to Comply [ 29 ] As concerns the alleged failures to comply, Ms. Bryan’s evidence, taken at its highest, does not support the proposition that Mr. Omardeen was not residing where he was supposed to. Count #4 is thus dismissed. As concerns the allegation that Mr. Omardeen left Ms. Bryan’s home, where he was working as a tattoo artist, to buy beer, contrary to his modified house arrest conditions, this allegation also rests on the testimony of Ms. Bryan. It is difficult to conceive of a motive for Ms.

Bryan to lie about this allegation, especially in the absence of any evidence that she was aware of this bail condition. Yet Ms. Bryan’s testimony about the events of the day in question was riddled with disclaimers as to her ability to remember details. I cannot be sure that her recollection of Mr. Omardeen’s departure from her home to get beer is a detail she remembers accurately. Count #5 is thus dismissed. Released on Dec. 8, 2017 Justice Russell Silverstein