Court of Appeal for Ontario
Date: 2025-07-16
Docket: C70790
Coram: van Rensburg, Huscroft and Copeland JJ.A.
Between:
His Majesty the King, Appellant
and
Abdullahi Osman, Respondent
Appearances:
Susan Reid and Kevin Pitt, for the appellant
Nicolas M. Rouleau and Misha Feldmann, for the respondent
Heard: February 11, 2025
On appeal from the directed verdict of acquittal entered on May 10, 2022 by Justice Peter Bawden of the Superior Court of Justice, with reasons reported at 2022 ONSC 4484.
Copeland J.A.:
Introduction
[1] This is a Crown appeal from a directed verdict of acquittal on a charge of being an accessory after the fact to murder.
[2] Marcel Teme was shot by Ibrahim Khiar in Kensington Market on the night of July 1, 2018. He died three days later. The respondent was with Mr. Khiar at the time of the shooting and witnessed the shooting. Immediately after the shooting, the respondent helped Mr. Khiar flee the scene. It is not in dispute that all of the respondent’s actions assisting Mr. Khiar to escape took place before Mr. Teme died.
[3] The respondent was charged with being an accessory after the fact to the murder of Mr. Teme, contrary to s. 240 of the Criminal Code, R.S.C. 1985, c. C-46. The respondent was tried jointly with Mr. Khiar, who was charged with the second-degree murder of Mr. Teme, as well as three counts each of aggravated assault and reckless discharge of a firearm in relation to other people hit by the gunfire. At the close of the Crown’s case, the trial judge granted the respondent’s motion for a directed verdict of acquittal. Mr. Khiar was ultimately found guilty by the jury of the lesser and included offence of manslaughter in relation to Mr. Teme’s death, as well as all of the remaining counts relating to others hit by the gunfire.[^1]
[4] The Crown appeals from the directed verdict. The Crown does not contest the respondent’s acquittal on the charge of being an accessory after the fact to murder (and did not contest it before the trial judge); however, the Crown contends that the trial judge erred in finding that the offence of being an accessory after the fact to attempted murder, contrary to s. 463(a) of the Criminal Code, is not an included offence to the offence of being an accessory after the fact to murder in s. 240, and as a result, erred in declining to leave for the jury’s consideration the offence of being an accessory after the fact to attempted murder.
[5] I would dismiss the appeal. The trial judge was correct in declining to leave the offence of being an accessory after the fact to attempted murder to the jury as an included offence to the offence of being an accessory after the fact to murder. There was no air of reality to accessory after the fact to attempted murder in this case.
[6] Where an accused is charged with being an accessory after the fact to murder, the Crown must prove that the principal committed murder, or an included offence to murder, and that at the time the accessory assisted the principal to escape, the accessory knew that the principal had committed murder, or an included offence to murder. As a matter of law, attempted murder can be an included offence to a charge of murder. However, cases where there will be an air of reality to the principal having committed attempted murder where the victim dies are rare. The rare cases where courts have found an air of reality to attempted murder despite the death of the victim involve circumstances where there was a live issue whether the acts of the accused caused the death of the victim. In most cases where the victim dies, the principal will be guilty of either murder or manslaughter, rather than attempted murder.
[7] Trial judges are obliged to leave with the jury all included offences for which there is an air of reality. Because it is possible, although rare, for there to be an air of reality to attempted murder as an included offence to murder where the victim dies, it is also possible (and also rare) for there to be an air of reality to the offence of being an accessory after the fact to attempted murder as an included offence to being an accessory after the fact to murder.
[8] However, this is not one of those rare cases where, despite the death of the victim, there is an air of reality to accessory after the fact to attempted murder. In this case, it was not in dispute that the actions of the principal, Mr. Khiar, caused the death of the victim, Mr. Teme. On the evidence in this trial, there was no air of reality to the prospect that the Crown would fail to prove – either in relation to Mr. Khiar or as an element of the accessory charge against the respondent – that Mr. Khiar killed Mr. Teme, but would prove that Mr. Khiar attempted to kill Mr. Teme. Subject to Mr. Khiar’s claim of self-defence, there was only an air of reality that he committed either murder or manslaughter. As a result, the trial judge was correct to decline to leave the offence of being an accessory after the fact to attempted murder to the jury in relation to the respondent.
(1) Factual background
[9] The factual inferences that were open to the jury on the trial record, and which were the basis on which the trial judge considered the directed verdict motion, are not in dispute on appeal. For this reason, rather than summarize the trial evidence, I reproduce the trial judge’s summary of the available inferences:
There was evidence which would permit the jury to find the following:
a. Khiar, Osman and their two female companions were walking through Kensington Market at 10:20 pm when the deceased, Marcel Teme, approached them.
b. Teme spoke to Khiar and Osman for roughly a minute and said something which annoyed Osman. Osman shoved Teme, which prompted Khiar to step between the two men.
c. Osman stepped around Khiar and moved aggressively towards Teme.
d. Teme punched Osman in the face, causing Osman to fall backwards.
e. Khiar immediately produced a handgun and fired eight shots at Teme, hitting him twice in the torso. The last four shots were aimed at the chest of Teme while he was on the ground.
f. Osman witnessed the entire shooting. He and Khiar ran from the scene together after the last shot was fired.
g. Marcel Teme was obviously still alive when Khiar and Osman fled. His torso was raised off the ground and he was waving his arms. Osman turned to look at Teme as he ran.
h. Osman attempted to cover his face as he escaped the scene. He also directed the two women who had been present during the shooting to separate from himself and Khiar.
i. Osman ran to his car and got into the driver’s seat. Khiar joined him in the passenger seat. They drove out of Kensington Market but crashed into the back of another car at the nearby intersection of Dundas Street and Spadina Avenue.
j. Khiar got out of the car and continued to escape on foot. Osman followed him seconds later, abandoning the rented vehicle.
k. Marcel Teme died in hospital three days after the shooting. The cause of death was two gunshot wounds to the abdomen.
In sum, the jury could reasonably have found that Osman assisted Khiar to escape the scene, knowing that Khiar had intended to kill Teme and that he had at least caused him serious bodily harm. Osman could not have known that Khiar had committed a murder at the time that he assisted him to escape because the victim would remain alive for another three days.
(2) The trial judge’s reasons on the directed verdict motion
[10] The Crown conceded before the trial judge, and accepts on appeal, that it was appropriate for the trial judge to direct a verdict of acquittal on the full offence charged against the respondent because the respondent’s acts in assisting Mr. Khiar to escape were completed before Mr. Teme died. I discuss the law in relation to this principle below. The live issue in the directed verdict motion, and on appeal, was whether the offence of being an accessory after the fact to attempted murder should be left to the jury on the basis that it was included in the offence charged. The trial judge rejected the Crown’s submission that the offence of being an accessory after the fact to attempted murder is an included offence to being an accessory after the fact to murder.
[11] The trial judge rejected the Crown’s invitation to follow the reasoning of the British Columbia Supreme Court in R. v. Bedi, 2016 BCSC 1930, which held that the offence of being an accessory after the fact to attempted murder is an included offence to a charge of being an accessory after the fact to murder, pursuant to s. 662(1) of the Criminal Code. The trial judge concluded that Bedi could not be reconciled with the Supreme Court decision in R. v. G.R., 2005 SCC 45. He further concluded that it would be unfair to leave the offence of being an accessory after the fact to attempted murder to the jury because the respondent was not on notice that he could be convicted of that offence.
[12] The trial judge held that for an offence to be an included offence pursuant to s. 662(1) of the Criminal Code “by the enactment creating [the offence]”, as that section was interpreted in G.R., it must be included in every circumstance. He concluded that because murder can be committed without the specific intent required for attempted murder, attempted murder is not an included offence to murder by the language of the enactment under s. 662(1) of the Criminal Code. The trial judge also held, based on G.R., that the Crown could not rely on the fact that there was evidence from which a jury could infer that the respondent knew that Mr. Khiar intended to kill Mr. Teme – specifically, that the respondent had seen Mr. Khiar shoot Mr. Teme eight times from close range – as the basis to argue that accessory after the fact to attempted murder was an included offence.
[13] The trial judge found that it would be fundamentally unfair to say that the respondent was on notice that he could be convicted of accessory after the fact to attempted murder in the circumstances of this case. The respondent was charged only with the count of accessory after the fact to murder. The Crown realized at the stage of the directed verdict motion that it could not prove that count. Given the failure to lay any other charge that could be proven on the trial evidence, the trial judge found it would be unfair for the court to correct the Crown’s error by finding an included offence not contemplated by the Crown at the outset of the trial. He observed that there were other accessory charges that could have been proven based on the evidence at trial, had the appropriate charges been laid. Further, if the Crown believed that there was a factual basis to convict the respondent of accessory after the fact to attempted murder, that charge could have been included on the indictment.
[14] The trial judge also noted that the Crown’s argument that the respondent would have been put on notice that accessory after the fact to attempted murder was an included offence to the charge of being an accessory after the fact to murder was not supported by Ontario jurisprudence, including R. v. Knott, and R. v. Maadani & Rashed, 2021 ONSC 8244.[^2] The trial judge observed that there were other avenues available for the respondent to have pursued his defence through cross-examination of the Crown witnesses had he been on notice that he could be convicted of being an accessory after the fact to attempted murder.
[15] The trial judge also rejected the Crown’s argument that the decision of the Supreme Court in R. v. Sarrazin, 2011 SCC 54, supports the conclusion that accessory after the fact to attempted murder is an included offence to accessory after the fact to murder pursuant to s. 660 of the Criminal Code. In his view, the Crown submission improperly conflated included offences with attempts.
[16] The trial judge distinguished Sarrazin on its particular facts. In Sarrazin, the accused was charged with murder. The evidence in Sarrazin left no doubt that the accused intended to kill the victim, however there was a live issue on the medical evidence whether the acts of the accused caused the victim’s death. In those unusual circumstances, there was a basis to instruct the jury on attempted murder, pursuant to s. 660 of the Criminal Code. The trial judge held that in this case, unlike Sarrazin, attempted murder was not an available verdict for Mr. Khiar, the principal, because there was no doubt that his actions killed Mr. Teme. There was no air of reality to the respondent being found guilty of accessory to attempted murder because there was no air of reality to Mr. Khiar being convicted of attempted murder.
(3) Positions of the parties
[17] In setting out the positions of the parties, I refer to the Criminal Code provisions which are central to the arguments in this appeal. The text of the relevant provisions is discussed in the analysis further below. At this stage, I outline only the subject matter of the relevant provisions of the Criminal Code, to assist the reader in following the positions of the parties. Section 23 defines the scope of liability for accessory after the fact offences. Sections 23.1 and 592 permit the charging and conviction of a person for an accessory after the fact offence even if the principal is not charged or not convicted. Section 660 provides that an accused may be convicted of an attempt to commit an offence where the offence charged is not proven. Section 662 defines the circumstances where offences are included within an offence charged. Section 240 provides the punishment for the offence of being an accessory after the fact to murder. Section 463 provides the punishments for all other accessory after the fact offences.
(i) Position of the Crown
[18] The Crown argues that the trial judge erred in holding that the offence of being an accessory after the fact to attempted murder is not an included offence to being an accessory after the fact to murder. The Crown argues that the decision of Nordheimer J., as he then was, in Knott is incorrect.
[19] The Crown, relying on ss. 23.1 and 592 of the Criminal Code, argues that the liability of a party as an accessory does not depend on whether the principal can be indicted or convicted. Accessory offences are administration of justice offences. The Crown argues that conviction for an accessory offence depends on what the alleged accessory knew when they assisted the principal to evade apprehension. Accessory offences are not an extension of the principal’s offence.
[20] The Crown relies on this court’s decision in R. v. Duong, for the proposition that a person charged with being an accessory after the fact to a specific offence can be found liable for being an accessory after the fact to an offence included in the specific offence. For example, a person charged with being an accessory after the fact to murder can be found liable for being an accessory after the fact to manslaughter.
[21] The Crown argues that attempted murder is an included offence to murder pursuant to s. 662(1) on the basis that, where an offence as described in the enacting provision of the Criminal Code can be committed by multiple modes, an offence is an included offence “if the essential elements of that offence would necessarily be proved if the Crown were to successfully establish any one of the legally available avenues of conviction for the charged offence”: R. v. Tenthorey, 2021 ONCA 324, at paras. 53-59, 63-71; Bedi, at paras. 174-76.
[22] On this basis, the Crown argues that attempted murder is an included offence to murder, pursuant to s. 662(1) of the Criminal Code, whether or not the specific intent to kill is pleaded in the indictment.
[23] The Crown argues that attempted murder can also be an included offence to murder pursuant to s. 660 of the Criminal Code, so long as there is a factual basis for a jury to find specific intent to kill, relying on the Supreme Court decision in Sarrazin. To similar effect, the Crown argues that this court’s decision in R. v. Forcillo, 2018 ONCA 402, supports the proposition that liability for attempted murder can exist even where the victim dies.
[24] The Crown argues that a person may be convicted of an offence based on a portion of a transaction. The Crown further argues that s. 661 of the Criminal Code contemplates that a person charged with an attempt to commit an offence may be convicted of the attempt, notwithstanding that the trial evidence proves the full offence.
[25] Combining these various threads, the Crown argues that attempted murder is an included offence to murder. This court held in Duong 1998 that a person charged with being an accessory after the fact to murder can be convicted of being an accessory to an included offence to murder. As a result, if the Crown is correct that attempted murder is an included offence to murder, then an accused charged with being an accessory after the fact to murder can be convicted of being an accessory after the fact to attempted murder on the basis of acts of aid to the principal that occurred after the acts by the principal, but before the victim died – assuming the Crown can prove the other elements of the offence.
[26] The Crown argues that Knott is wrongly decided and contains a number of errors. First, the Crown argues that in light of Sarrazin and Tenthorey, the concern raised in Knott about whether attempted murder is an included offence to murder is erroneous.[^3] Second, the Crown argues that Nordheimer J. erred in Knott in failing to recognize that liability of the alleged accessory is distinct from that of the principal. On this basis, the Crown argues that the offence of being an accessory after the fact to murder can be left to the jury for the alleged accessory even if there is no air of reality to the principal being convicted of attempted murder, rather than murder. Third, the Crown argues that Nordheimer J. erred in Knott in implicitly requiring the Crown to specifically plead a lesser and included accessory offence (i.e., as a separate count). The Crown argues that this has the effect of promoting “over charging” and could lead to an overburdened indictment, with increased risk of confusion and inconsistent verdicts.
(ii) Position of the respondent
[27] The respondent argues that the trial judge was correct in concluding that the offence of being an accessory after the fact to attempted murder is not an included offence to being an accessory after the fact to murder. Thus, the trial judge was correct to grant the directed verdict of acquittal and to decline to leave the offence of being an accessory after the fact to attempted murder to the jury. The respondent further argues that the trial judge made no error in concluding that it would be fundamentally unfair to the respondent to say that he was on notice that he could be convicted of being an accessory after the fact to attempted murder.
[28] The respondent argues that included offences are governed by the provisions of the Criminal Code. The Supreme Court has cautioned that the test for included offences is “strict”: G.R., at para. 25. Under s. 662 of the Criminal Code, an offence is an included offence only if it is “necessarily included” in the offence charged “as described in the enactment creating it or as charged in the count” or if it is expressly stated to be an included offence in the Criminal Code (in particular in subsections 662(2) to (6)).
[29] The respondent submits that the offence of being an accessory after the fact to attempted murder is not an included offence to being an accessory after the fact to murder under any of these categories for included offences.
[30] First, the respondent points out that the Criminal Code contains no statutory exception specifying that being an accessory after the fact to attempted murder is an included offence to being an accessory after the fact to murder. The offence of being an accessory after the fact to attempted murder is not an included offence specified in s. 662(2) to (6). It is also not captured by s. 660.
[31] Second, the respondent argues that where a person is charged with being an accessory after the fact to murder under s. 240 of the Criminal Code, the offence of being an accessory after the fact to attempted murder, an offence under s. 463 of the Criminal Code, is not an included offence in the enactment creating the offence charged within the meaning of s. 662(1) of the Criminal Code. Offences included by the wording of the enactment are those that are “necessarily committed in the commission of the principal offence as described in the enactment creating [the principal offence]”: G.R., at para. 30. The respondent argues that the elements of the offence of being an accessory after the fact to attempted murder are not necessarily included in the offence of being an accessory after the fact to murder because s. 240 of the Criminal Code does not specify the means by which accessory after the fact to murder can be committed.
[32] Third, the respondent asserts that in this case, the offence of being an accessory after the fact to attempted murder is not included as an offence based on the facts specifically pleaded in the count in the indictment. The indictment against the respondent contains no words or description of facts that disclose the commission of an “included” offence. Nothing in the words of the indictment put the respondent on notice that the charge of being an accessory after the fact to an attempted murder would be put to the jury. Indeed, the wording of the count focused on Mr. Osman’s conduct after he had learned of Mr. Khiar’s death, not before. The indictment particularized that the respondent received, comforted, or assisted Mr. Khiar “knowing that [Mr. Khiar] had murdered Marcel Teme” (emphasis added).
(4) Standard of review
[33] There is no dispute about the standard of review on an appeal from a directed verdict and the applicable analysis on a directed verdict motion.
[34] The Crown may appeal a directed verdict of acquittal on a question of law alone, pursuant to s. 676(1)(a) of the Criminal Code. The standard of review on an appeal from a directed verdict of acquittal is correctness: R. v. Barros, 2011 SCC 51, at para. 48; R. v. Charemski, at paras. 1-4. Further, whether an included offence arises on the evidence and should have been left to the jury is also reviewable on a correctness standard: R. v. Doxtator, 2022 ONCA 155, at para. 25, rev’d but not on this point, 2022 SCC 40 (Richard Doxtator) and leave to appeal refused, [2022] S.C.C.A. No. 121 (Jasmine Doxtator).
[35] In considering whether to grant a directed verdict of acquittal, a trial judge must consider whether there is any evidence upon which a reasonable jury, properly instructed, could render a guilty verdict. Where the evidence includes circumstantial evidence, the trial judge must engage in a limited weighing of the circumstantial evidence in order to determine what reasonable inferences may be drawn from it (in the context of the evidence as a whole). In engaging in this task, the judge does not assess credibility, but rather, considers whether the evidence, if believed, could reasonably support an inference of guilt: R. v. Arcuri, 2001 SCC 54, at paras. 21-23.
(5) Analysis
[36] Although my reasons differ somewhat from those of the trial judge, I conclude that he was correct in declining to leave the offence of being an accessory after the fact to attempted murder to the jury. I explain this conclusion by structuring my analysis around the following issues: (i) the law in relation to accessory offences in general and being an accessory after the fact to murder in particular; (ii) the law in relation to included offences; (iii) whether attempted murder is an included offence to murder, and by extension, whether being an accessory after the fact to attempted murder is an included offence to being an accessory after the fact to murder; and (iv) whether the trial judge was correct in holding that there was no air of reality to the offence of being an accessory after the fact to attempted murder and declining to instruct the jury on that offence. After that analysis I address two additional issues: (v) the legal policy concerns that underlie the Crown’s position on this appeal; and (vi) issues related to particularization and timing for a count charging the offence of being an accessory after the fact to murder as they relate to notice to the accused of the acts that form the basis for a charge.
The remainder of the judgment continues with detailed legal analysis, as set out in the original document.
Disposition
[130] The trial judge did not err in directing a verdict of acquittal. I would dismiss the appeal.
Released: July 16, 2025
“K.M.v.R.”
“J. Copeland J.A.”
“I agree. K. van Rensburg J.A.”
“I agree. Grant Huscroft J.A.”
[^1]: The fact that Mr. Khiar was acquitted of second-degree murder, but convicted of manslaughter, raised an issue on appeal as to the appropriate scope of the retrial, if the Crown appeal were allowed. Because I would not allow the Crown appeal, I need not consider this issue.
[^2]: The decision on this issue in R. v. Rashed was appealed and heard as the companion to this appeal. This court’s decision in the Rashed appeal is released concurrently with this appeal: R. v. Rashed, 2025 ONCA 515.
[^3]: The Crown concedes that Nordheimer J. did not decide Knott on this basis, but argues that the concern about whether attempted murder is an included offence to murder may have infected the balance of his analysis.
[^4]: I use the term “principal” throughout these reasons to describe the perpetrator of an offence who the alleged accessory knowingly assists after the offence. However, the text of s. 23 of the Criminal Code, read together with s. 21, is clear that a person can be an accessory after the fact based on assistance provided to a party to an offence. See also Watt’s Manual of Criminal Jury Instructions, Final Instruction 103, at footnote 2.
[^5]: The Crown also relies on s. 592 in support of the same argument. I do not think s. 592 adds anything for the purposes of this appeal.
[^6]: I would note, however, that in a joint trial, where the same evidence or largely overlapping evidence is admissible against the principal and the alleged accessory on the issues of whether the principal committed the specific offence and whether the accessory was aware of the offence at the time the accessory assisted the principal to escape, there may be issues about consistency of verdicts.
[^7]: There are conceptual differences between attempts and included offences, but they are not significant for the issues raised in this appeal.
[^8]: The reading of ss. 660 and 662(1) as requiring that the whole offence not be proved is consistent with the Supreme Court’s description of an attempt offence being “in its very nature an incomplete substantive offence”: Dynar, at paras. 73-74.
[^9]: In R. v. Sarrazin, 2010 ONCA 577, 259 C.C.C. (3d) 293 (“Sarrazin CA”), Doherty J.A., whose analysis was adopted by the Supreme Court, expressly declined to rule on whether attempted murder is an included offence to murder pursuant to s. 662(1) of the Criminal Code (at footnote 9 and paras. 29-30, 49, 50).
[^10]: The respondent argues that s. 240 of the Criminal Code does not provide any specific means to commit accessory after the fact to murder. But this argument misses the fact that s. 240 is the penalty provision. The definition of the offence of being an accessory after the fact to murder is found in the combination of ss. 23 and 229 of the Criminal Code.
[^11]: Section 661(1) provides: “Where an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused is not entitled to be acquitted, but the jury may convict him of the attempt unless the judge presiding at the trial, in his discretion, discharges the jury from giving a verdict and directs that the accused be indicted for the complete offence.
[^12]: One would expect that this is a relatively rare occurrence. The annotation to this section of the Criminal Code provides one reported example, R. v. Doiron (1960), 129 C.C.C. 283 (B.C.C.A.).