Court of Appeal for Ontario

Date: 2025-07-16
Docket: C70205
Coram: van Rensburg, Huscroft and Copeland JJ.A.

Between

His Majesty the King
Appellant

and

Islam K. Rashed
Respondent

Counsel:
Susan Reid and Kevin Pitt, for the appellant
Howard L. Krongold and Michelle Psutka, for the respondent

Heard: February 11, 2025

On appeal from the directed verdict of acquittal entered on December 16, 2021 by Justice Julianne A. Parfett of the Superior Court of Justice, with reasons reported at 2021 ONSC 8244.

Copeland J.A.:

Introduction

[1] This is a Crown appeal from a directed verdict of acquittal on a charge of accessory after the fact to murder.

[2] Ryan Kabuya-Ntumba was shot four or five times by Moadd Maadani in the Byward Market at approximately 3:13 a.m. on July 1, 2019. He died hours later in hospital, at approximately 5:46 a.m. The shooting and some of the events that preceded it were captured on video.

[3] Immediately after the shooting, the respondent helped Mr. Maadani, who had also been shot in the encounter with Mr. Kabuya-Ntumba, flee from Ottawa to Montreal. They attended a hospital in Montreal for treatment of Mr. Maadani’s gunshot wound. Because the injury was a gunshot wound, hospital staff contacted police. The respondent lied to Montreal police about how Mr. Maadani was shot. The evidence at trial showed that the acts by the respondent assisting Mr. Maadani to flee started immediately after the shooting, but before Mr. Kabuya-Ntumba died, and continued after the time Mr. Kabuya-Ntumba died until approximately 11:50 a.m. on July 1.

[4] The respondent was charged with being an accessory after the fact to murder, contrary to s. 240 of the Criminal Code, RSC 1985, c C-46, and being an accessory after the fact to possession of a loaded, restricted firearm without authorization, contrary to s. 463 of the Criminal Code. The respondent was jointly tried with Mr. Maadani, who was charged with second-degree murder and possession of a loaded, restricted firearm.

[5] Before the final instructions to the jury, the trial judge granted the respondent’s motion for a directed verdict of acquittal on the count of being an accessory after the fact to murder. The jury ultimately found the respondent guilty of being an accessory after the fact to possession of a loaded, restricted firearm. Mr. Maadani, who had asserted defences of self-defence and provocation, was convicted of second-degree murder and the firearm offence.[^1]

[6] The Crown appeals from the granting of the directed verdict of acquittal on the count of being an accessory after the fact to murder. The Crown raises two grounds of appeal:

1. Did the trial judge err in finding that on the trial evidence it was not open to a properly instructed jury, acting reasonably, to find that in the time after Mr. Kabuya-Ntumba had died (at approximately 5:46 a.m. on July 1, 2019), during which there was evidence that the respondent continued to aid Mr. Maadani in the flight to Montreal and lied to police about how Mr. Maadani was shot, the respondent was wilfully blind to whether Mr. Kabuya-Ntumba was dead?
2. Did the trial judge err in not leaving the offence of being an accessory after the fact to attempted murder to the jury as an included offence to being an accessory after the fact to murder?

[7] The second issue was not raised by the Crown at trial in that the Crown did not ask the trial judge to instruct the jury on the offence of being an accessory after the fact to attempted murder. The respondent argues that the Crown should not be permitted to raise this new theory of liability for the first time on appeal.

[8] I would dismiss the appeal. The trial judge did not err in declining to leave the offence of being an accessory after the fact to murder to the jury on the basis of wilful blindness. Wilful blindness can substitute for actual knowledge where the accused subjectively strongly suspects a fact (here, the death of Mr. Kabuya-Ntumba) and deliberately chooses not to inquire in order to avoid confirmation of that fact. In light of the narrow scope of the doctrine of wilful blindness, on the evidence in this trial, it was not open to a reasonable jury, properly instructed, to find that in the time after Mr. Kabuya-Ntumba died (after 5:46 a.m.) when the respondent continued to aid Mr. Maadani after the shooting – through their continued flight to Montreal and false statements to the police – he was wilfully blind to whether the victim had died. The evidence permitted an inference that the respondent knew that Mr. Kabuya-Ntumba was injured by Mr. Maadani’s gunfire, but not that the respondent knew anything about the nature of the injuries or that there was a probability they would be fatal. In other words, on the evidence at trial, a reasonable jury, properly instructed, could not find that the respondent suspected that Mr. Kabuya-Ntumba was dead and deliberately chose not to inquire to avoid being fixed with knowledge of his death.

[9] Further, on the evidence at trial, there was no air of reality to the offence of being an accessory after the fact to attempted murder. The victim died. There was no dispute that the acts of Mr. Maadani caused the victim’s death. The evidence raised an air of reality that Mr. Maadani committed either murder or manslaughter. There was no air of reality to attempted murder because there was no dispute that Mr. Maadani’s actions caused the death of Mr. Kabuya-Ntumba. As such there was no air of reality to the respondent being an accessory after the fact to attempted murder. In light of this conclusion, it is not necessary to consider the respondent’s argument that the Crown should not be permitted to raise this issue for the first time on appeal.

(1) Factual Background

[10] As this appeal is from a directed verdict of acquittal, I focus my review of the factual background on the evidence before the jury as it relates to the inferences open to a reasonable jury, properly instructed.

[11] On the night of June 30/July 1, 2019, two groups of young men were in the Byward Market in Ottawa. The respondent and Mr. Maadani were in one group. Mr. Kabuya-Ntumba was in the other.

[12] Earlier in the evening, some members of both groups had been at a bar on George Street. After the bar closed, everyone who was in the bar spilled out onto George Street and began milling around.

[13] Virtually all of the events from this point on were captured on video surveillance cameras near the intersection of George and Dalhousie Streets. The video evidence was shown to the jury both as continuous video, and broken down frame by frame.

[14] The respondent arrived just before 3:00 a.m. and joined the group that included Mr. Maadani outside the bar. Mr. Maadani’s group, including the respondent, walked towards the intersection of Dalhousie and George Streets. Three members of the group, including the respondent, then began to walk along Dalhousie Street. Mr. Maadani and a female member of the group stayed by the intersection and appeared to hug.

[15] At this time, Mr. Kabuya-Ntumba’s group was walking on the other side of Dalhousie Street. On the video, Mr. Maadani’s actions appear to catch the attention of Mr. Kabuya-Ntumba’s group. Mr. Kabuya-Ntumba’s group crossed Dalhousie Street and approached Mr. Maadani. As the four men in Mr. Kabuya-Ntumba’s group approached Mr. Maadani, the respondent and the other two men he had gone ahead with turned around and walked back towards Mr. Maadani.

[16] There was no evidence that either group interacted earlier in the bar. For reasons that were not disclosed on the evidence, the two groups began to interact while they were on Dalhousie Street. At approximately 3:12 a.m., a fight broke out. There were pushes, shoves, and some punches thrown on both sides. A couple of times during the pushing, shoving, and punching, Mr. Maadani reached into the satchel he was wearing and the respondent then placed his hand over the satchel, seemingly to stop Mr. Maadani from responding. In the context of the events that followed and all of the evidence, it would be open to the jury to infer that the satchel contained the firearm that Mr. Maadani ultimately used to shoot Mr. Kabuya-Ntumba and that the respondent knew the firearm was in the satchel.

[17] Mr. Kabuya-Ntumba punched Mr. Maadani. Mr. Kabuya-Ntumba was then pulled back by his friends, seemingly to stop him from pursuing Mr. Maadani. Mr. Kabuya-Ntumba then broke free and ran towards Mr. Maadani. Mr. Maadani, who was armed with a handgun, fired at Mr. Kabuya-Ntumba, striking him four or five times.[^2] Mr. Kabuya-Ntumba, who was also armed with a handgun, fired once and struck Mr. Maadani in the leg. At trial, who shot first was in dispute and a central issue in Mr. Maadani’s claim of self-defence.

[18] The shots were fired at approximately 3:13 a.m. The entire incident, from the first shoves to the last gunshot, lasted approximately 45 seconds. The time from the first to last gunshot was in the range of 4 or 5 seconds. At trial, the Crown and Mr. Maadani urged different interpretations of the evidence, in particular the video evidence about who fired first.

[19] The respondent was standing close to Mr. Maadani when the shots were fired; however, the respondent quickly turned and ran. It was open to the jury to infer that the respondent heard all of the shots. However, what the jury could infer in relation to what the respondent saw – and in particular what he saw regarding injuries to Mr. Kabuya-Ntumba, is more complicated. I discuss this evidence and other evidence bearing on what the jury could reasonably infer about the respondent’s knowledge of the injuries and ultimate death of Mr. Kabuya-Ntumba in my analysis of the wilful blindness ground of appeal.

[20] When Mr. Kabuya-Ntumba was struck by Mr. Maadani’s gunfire, he fell to the ground. He got to his feet, ran a short distance southbound on Dalhousie Street, and then collapsed. He was injured, but conscious, when taken to hospital.

[21] Mr. Maadani and the respondent fled the scene, running north on Dalhousie Street, and then drove to Montreal in the respondent’s car. In Montreal, they attended the Jewish General Hospital to seek treatment for Mr. Maadani’s leg wound. Mr. Maadani was admitted to triage at approximately 6:23 a.m. Mr. Maadani was then transferred to the Montreal General Hospital. Because Mr. Maadani’s wound was caused by a gunshot, staff of the Jewish General Hospital contacted police. Mr. Maadani and the respondent both gave false statements to police about how Mr. Maadani was injured and how they got to Montreal. The respondent also gave a false name.

[22] Mr. Kabuya-Ntumba died in hospital at approximately 5:46 a.m. of catastrophic blood loss. The fatal wound was to his chest. There were four other gunshot wounds, which were not the cause of death, one to Mr. Kabuya-Ntumba’s right leg, two to his left hand and wrist, and one to his back.

[23] Mr. Kabuya-Ntumba’s death at 5:46 a.m. happened while the respondent and Mr. Maadani were still en route to Montreal. The respondent’s false statements to the Montreal police happened after Mr. Kabuya-Ntumba’s death, between 8:00 and 11:00 a.m.

(2) Standard of Review

[24] The parties are in agreement about the standard of review on an appeal from a directed verdict and the standard to be applied in considering whether to grant a directed verdict.

[25] 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 in an appeal from a directed verdict of acquittal is correctness: R. v. Barros, 2011 SCC 51, para 48; R. v. Charemski, 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, para 25, leave to appeal refused, [2022] S.C.C.A. No. 121.

[26] 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, paras 21-23.

(3) Did the trial judge err in declining to leave the offence of being an accessory after the fact to murder to the jury on the basis of wilful blindness?

[27] I conclude that the trial judge did not err in granting a directed verdict on the count of being an accessory after the fact to murder and declining to leave the offence to the jury on the basis of wilful blindness. I structure my analysis as follows. First, I address aspects of the law in relation to the offence of being an accessory after the fact to murder that are relevant to the wilful blindness issue in this appeal. Second, I review the law regarding what must be shown to establish wilful blindness and the distinction between wilful blindness and recklessness. Third, I explain why the trial judge was correct that there was no evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty of being an accessory after the fact to murder on the basis of wilful blindness.

(i) Accessory after the fact to murder

[28] In the appeal of R. v. Osman, 2025 ONCA 516, heard together with this appeal and released concurrently, I review the law in relation to accessory after the fact offences in general and accessory after the fact to murder in particular. I do not repeat that analysis here, but focus on the aspects of it that are relevant to the wilful blindness issue in this appeal.

[29] Accessory after the fact offences require that the accessory accused have knowledge of the specific offence they are alleged to have assisted the principal to flee at the time they assist the principal. Knowledge that the principal has committed some criminal offence is insufficient: R. v. Duong, pp 399-403.

[30] The parties agree that the knowledge requirement for accessory offences can be satisfied by actual knowledge or wilful blindness: Duong, at pp. 401-02.

[31] The parties agree that as an element of the offence of being an accessory after the fact to murder, the Crown must prove that the accessory’s acts that are alleged to have assisted the principal were committed after the victim is dead: Commentaries on the Laws of England in Four Books by Sir William Blackstone, 1898, Book Four, p. 1454; R. v. Knott, p 9; R. v. B.(A.), paras 19-22.

[32] For an accessory accused to be guilty of being an accessory after the fact to murder, the knowledge requirement of the offence requires that at the time the accessory assisted the principal to flee, the accessory knew or was wilfully blind to the fact that the principal had committed the specified offence – murder. For the accessory accused to have the required knowledge, they must, at the time they assist the principal to flee, know that the victim is dead or be wilfully blind to that fact.

[33] The Crown conceded in this court and below that the count of being an accessory after the fact to murder could not be left to the jury on the basis that the respondent had actual knowledge of Mr. Kabuya-Ntumba’s death at the time he assisted Mr. Maadani to flee and lied to the Montreal police about the source of Mr. Maadani’s injuries in furtherance of that goal. Before 5:46 a.m., Mr. Kabuya-Ntumba was not dead, so the respondent could not have known of his death in that time period. And there was no evidence from which a reasonable jury, properly instructed, could find that the respondent learned (had actual knowledge) that Mr. Kabuya-Ntumba was dead while he was still assisting Mr. Maadani to flee.

[34] The issue in dispute on the first ground of appeal is whether the count of being an accessory after the fact to murder should have been left to the jury on the basis of wilful blindness. Specifically, was it open on the trial evidence for a reasonable jury, properly instructed, to find that in the time that the respondent continued to assist Mr. Maadani to flee after Mr. Kabuya-Ntumba was, in fact, dead (after 5:46 a.m. on July 1), the respondent was wilfully blind to the fact that Mr. Kabuya-Ntumba had died?

(ii) Wilful blindness as a substitute for actual knowledge

[35] Wilful blindness is a substitute for actual knowledge where actual knowledge is required as the mens rea for an offence. The jurisprudence emphasizes that the doctrine of wilful blindness is narrow in scope and that it is important to maintain the distinction between wilful blindness and recklessness.

[36] Justice Charron, writing for the court, explained the function and elements of wilful blindness in R. v. Briscoe, 2010 SCC 13, para 21:

Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, and R. v. Jorgensen, para 103. As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?” [Emphasis in original.]

[37] In the words of Glanville Williams, “[a] court can properly find wilful blindness only where it can almost be said that the defendant actually knew” (emphasis added): as cited in Briscoe, at para. 23. See also R. v. Morrison, 2019 SCC 15, paras 97-99; R. v. Sandhu, p 497.

[38] The jurisprudence on wilful blindness emphasizes that it is distinct from recklessness, as well as the importance of maintaining the distinction. Charron J. addresses this issue in Briscoe, at paras. 22-24:

Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):

... while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry. [Emphasis added.]

It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction on the doctrine:

The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. [Emphasis added.]

(Criminal Law: The General Part (2nd ed. 1961), at p. 159 (cited in Sansregret, at p. 586).)

Professor Don Stuart makes the useful observation that the expression “deliberate ignorance” seems more descriptive than “wilful blindness”, as it connotes “an actual process of suppressing a suspicion”. Properly understood in this way, “the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused’s mind” (Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 241). While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart’s words, “deliberate ignorance”. [All emphasis from Briscoe.]

See also Morrison, at para. 100.

[39] The distinction between wilful blindness and recklessness is important in this appeal because the Crown does not argue that the trial judge should have left accessory after the fact to murder to the jury on the basis that the respondent was reckless as to whether Mr. Kabuya-Ntumba was dead at the time the respondent assisted Mr. Maadani to flee. At the outset of oral argument, the Crown abandoned the submission that recklessness in relation to knowledge of death is sufficient mens rea for accessory after the fact to murder.[^3]

[40] I would emphasize the language used in formulating the wilful blindness standard from Glanville Williams and Jorgensen (quoted above in Briscoe) that for wilful blindness to be present, more is required than that the accused knows there is a risk of some consequence. Proceeding in the face of knowledge of risk establishes recklessness, but not wilful blindness. Wilful blindness requires that the accused subjectively knows or strongly suspects that the consequence has happened (or will happen depending on the circumstances) and deliberately chooses not to inquire further because the accused subjectively knows or strongly suspects that inquiring will fix them with knowledge. This speaks to the accused’s belief that there is a level of probability of the consequence at issue, not just a risk. The accused must have “suspected the fact; realized its probability; but he refrained from obtaining final confirmation because he wanted to be able to deny knowledge” (Glanville Williams, Criminal Law: The General Part, 2nd ed., (London: Stevens & Sons Ltd., 1961), at p. 159). The accused must have “shut his eyes because he knew or strongly suspected that looking would fix him with knowledge” (Jorgensen, at para. 103). This notion of probability of the consequence and that the accused is deliberately shutting their eyes to it are what separate wilful blindness from recklessness.

[41] In the context of this appeal, for the count of being an accessory after the fact to murder to have been left to the jury on the basis of wilful blindness, the evidence would need to allow a reasonable jury, properly instructed, to conclude that the respondent realized it was probable that Mr. Kabuya-Ntumba had died at some point during the night, and deliberately chose to remain ignorant. In other words, that the respondent knew it was probable that Mr. Kabuya-Ntumba had died during the night, and refrained from inquiring because he wanted to be able to deny knowledge of that fact. Indeed, in oral submissions, Crown counsel framed the inference that she argued was available on the trial evidence this way: at the time the respondent assisted Mr. Maadani to flee, the respondent knew that Mr. Kabuya-Ntumba had “been fatally shot” and was “dead or dying”.

[42] If the evidence only allowed an inference that the respondent knew that Mr. Kabuya-Ntumba was injured by gunfire but nothing about the nature of the injuries, and continued to assist Mr. Maadani to escape while being indifferent to the nature of Mr. Kabuya-Ntumba’s injuries and their potential consequences, that would not be sufficient to leave the count of being an accessory after the fact to murder to the jury on the basis of wilful blindness.

(iii) The trial judge did not err in declining to leave to the jury the offence of being an accessory after the fact to murder on the basis of wilful blindness

[43] On the evidence before the jury, the trial judge did not err in declining to leave to the jury the offence of being an accessory after the fact to murder on the basis of wilful blindness.

[44] The Crown argues that, whether or not this court identifies specific errors in the trial judge’s reasons when reviewing the issue on a correctness standard, there was evidence on which a reasonable jury, properly instructed, could have found that the respondent was wilfully blind to whether Mr. Kabuya-Ntumba was dead. The Crown argues that the evidence supports the inference that the respondent was aware that Mr. Maadani had seriously, and probably fatally, injured Mr. Kabuya-Ntumba, such that the respondent’s suspicions about the need for further inquiry were raised, but he made none, and thus, was wilfully blind to whether Mr. Kabuya-Ntumba had died.

[45] The Crown also argues there are specific errors in the trial judge’s reasons on the wilful blindness issue.

[46] Reviewing the issue on a correctness standard, I am not persuaded that the evidence at trial would allow a reasonable jury, properly instructed, to find that, during the time the respondent assisted Mr. Maadani to flee, he was wilfully blind to Mr. Kabuya-Ntumba’s death. It follows that the trial judge did not err in declining to leave the offence of being an accessory after the fact to murder to the jury on the basis of wilful blindness. Having reached this conclusion, it is not necessary to consider the Crown’s arguments of specific errors in the trial judge’s reasoning.

[47] In order for accessory after the fact to murder to be left to the jury on the basis of wilful blindness, the evidence bearing on the respondent’s knowledge of Mr. Kabuya-Ntumba’s death would need to allow a reasonable jury, properly instructed, to conclude that the respondent realized there was a probability that Mr. Kabuya-Ntumba had died at some point during the night, and deliberately chose to remain ignorant to avoid being fixed with knowledge that he was dead. If the evidence only allowed an inference that the respondent knew that Mr. Kabuya-Ntumba had been injured by gunfire, but not the nature of the injuries, and continued to assist Mr. Maadani to escape while being indifferent to the nature of Mr. Kabuya-Ntumba’s injuries and their potential consequences, that would not be sufficient to leave accessory after the fact to murder to the jury on the basis of wilful blindness.

[48] The evidence did not provide a basis for a reasonable jury, properly instructed, to find that the respondent was aware there was a probability that Mr. Kabuya-Ntumba had died during the night, and deliberately chose not to inquire to avoid being fixed with that knowledge.

[49] The evidence bearing on the respondent’s knowledge in relation to Mr. Kabuya-Ntumba’s death was entirely circumstantial. For this reason, whether there was a basis to leave the offence of accessory after the fact to murder to the jury on the basis of wilful blindness depended on what inferences were reasonably available to the jury on the evidence. There was no evidentiary basis in this case for a reasonable jury, properly instructed, to find that the respondent was wilfully blind to Mr. Kabuya-Ntumba’s death, as opposed to indifferent (reckless). There was a gap in the evidence on this issue. It could not be filled by speculation.

[50] The primary point on which I disagree with the Crown’s position is that I am not persuaded the evidence permitted the inference that at the time the respondent fled the scene of the shooting, he knew that there was a probability that Mr. Kabuya-Ntumba was fatally injured and dying. The evidence at trial only went so far as to support the inference that the respondent knew that Mr. Kabuya-Ntumba had been injured by gunfire, but not that he knew the nature of the injuries or that it was probable they would be fatal. In that context, while it is true that there was no evidence that the respondent made any inquiries during the flight to Montreal about whether Mr. Kabuya-Ntumba had died, in the absence of a basis for the inference that the respondent knew it was probable that Mr. Kabuya-Ntumba was fatally injured, it is not reasonable to infer a deliberate choice by the respondent not to inquire in order to avoid being fixed with knowledge of death.

[51] I turn then to the evidence and what reasonable inferences it supported in relation to the respondent’s knowledge about Mr. Kabuya-Ntumba’s death.

[52] In the altercation immediately prior to the shooting, the video exhibits show Mr. Maadani reaching several times into the satchel he was wearing, and the respondent placing his hand over the satchel. It was open to the jury to infer from this evidence, in the context of all of the evidence, that the respondent was aware Mr. Maadani was armed.

[53] The forensic evidence of bullet casings found at the scene supported that five bullets were fired from Mr. Maadani’s gun and one from Mr. Kabuya-Ntumba’s gun. The video exhibits show the respondent standing beside Mr. Maadani at the time the shooting began. Although the video has no sound, four muzzle flashes are visible from Mr. Maadani’s gun and one from Mr. Kabuya-Ntumba’s gun. The jury could reasonably infer that the respondent was aware of the shots being fired by Mr. Maadani towards Mr. Kabuya-Ntumba, at least from hearing them.

[54] In addition, I conclude the jury could reasonably infer that the respondent was aware that Mr. Kabuya-Ntumba had been hit by at least one bullet. On the video Mr. Kabuya-Ntumba can be seen falling to the ground in the same time frame as the muzzle flashes from Mr. Maadani’s gun.

[55] Based on the video evidence in the context of the evidence as a whole, I conclude that it was open on the evidence for the jury to find that in addition to hearing the shots fired by Mr. Maadani, the respondent was facing Mr. Kabuya-Ntumba when the first shot was fired.

[56] However, the video shows the respondent turn and run almost immediately when the shooting happens. Thus, while the jury could reasonably find that the respondent knew that Mr. Maadani had fired multiple shots toward Mr. Kabuya-Ntumba and that Mr. Kabuya-Ntumba had been hit by at least one bullet, the evidence could not support a finding that the respondent knew the specifics of Mr. Kabuya-Ntumba’s injuries or that it was probable they would be fatal.

[57] I pause to observe that there is no question that gunshot injuries constitute serious bodily harm. But the practical reality is that not all gunshot wounds are fatal. For the Crown to rely on wilful blindness in relation to the death of the victim, the Crown must show that the accused has some level of knowledge of the probability of death of the victim, as opposed to the possibility.

[58] Beyond the evidence of what the respondent himself could have observed and known about the injuries to Mr. Kabuya-Ntumba, the evidence of other witnesses did not support the conclusion that at the time the respondent fled the scene and soon after, it was apparent that Mr. Kabuya-Ntumba’s injuries were likely to be fatal.

[59] On the video, after the muzzle flashes and after Mr. Kabuya-Ntumba fell to the ground, he got to his feet and ran southbound down Dalhousie Street and then collapsed (in the video he was behind a vehicle at this point, so not visible to the camera once he was on the ground).

[60] Anis Khomis, a rideshare driver, witnessed the altercation and heard gunshots, but did not see any firearms. He described at the end of the altercation, seeing a male who was “injured”, but did not describe the injuries (there is no dispute this was Mr. Kabuya-Ntumba).

[61] Youssef Zine-Elabidine, who had completed a shift at the bar the two groups had been in earlier, witnessed some of the altercation. He heard gunshots, but also did not see any firearms. He was about 8-10 feet from Mr. Kabuya-Ntumba when he heard the gunshots. He saw Mr. Kabuya-Ntumba run, stumble, and fall. Mr. Zine-Elabidine said he saw Mr. Kabuya-Ntumba clutch his abdomen or hip. Given the sequence of events, he said he could assume Mr. Kabuya-Ntumba had been potentially injured or hit, but did not actually see if he had been hit.

[62] First responders located Mr. Kabuya-Ntumba on the ground on Dalhousie Street in front of Dunn’s restaurant (where he can be observed on the video to collapse). Paramedics noted three gunshot wounds at that time: the left wrist, the right upper chest near the shoulder or clavicle, and the right upper thigh. He was bleeding from the chest wound. Paramedics transported him to hospital. Mr. Kabuya-Ntumba remained conscious while in the ambulance and when he arrived at the Ottawa Hospital. He could speak coherently, but did not want to provide any information about what happened.

[63] The fact of Mr. Kabuya-Ntumba getting to his feet and running after he fell to the ground, as well as the evidence of the observations of the civilians and their perspective on Mr. Kabuya-Ntumba’s injuries, undermine the inference sought by the Crown that a reasonable jury could infer that it was apparent at the time the shots were fired and soon after – to observers, in general, and to the respondent, in particular – that Mr. Kabuya-Ntumba’s injuries were likely to be fatal.

[64] The evidence would allow a reasonable jury to find, and it was not seriously disputed at trial, that the respondent fled to Montreal with Mr. Maadani. They left the scene at 3:13 a.m. Mr. Kabuya-Ntumba died at 5:46 a.m. The respondent’s acts to assist Mr. Maadani to flee continued after Mr. Kabuya-Ntumba died. They arrived at the Jewish General Hospital in Montreal at approximately 6:05 a.m. The respondent made the false statements to Montreal police between approximately 8:00 a.m. and 11:00 a.m.

[65] There is no evidence that the respondent made any inquiries to find out the status of Mr. Kabuya-Ntumba after he fled the scene. There is evidence that the respondent had access to at least one smartphone during the time of the flight to Montreal. Whether the respondent would have been able to find any information about Mr. Kabuya-Ntumba’s state, had he made inquiries, is not determinative of the wilful blindness issue: Duong, at p. 402. In other words, for wilful blindness to exist, the Crown is not required to prove that the results of hypothetical inquiries by the respondent would have given him knowledge of Mr. Kabuya-Ntumba’s death. Rather, liability on the basis for wilful blindness turns on whether the respondent knew it was probable that Mr. Kabuya-Ntumba had died and made a deliberate choice not to inquire in order to avoid the knowledge.

[66] In considering whether a reasonable jury, properly instructed, could find that the respondent was wilfully blind to the fact that Mr. Kabuya-Ntumba was dead after 5:46 a.m., it is useful to compare the evidence in cases raising similar issues where wilful blindness was found to have been proven in a judge alone trial or that the evidence required an analysis of wilful blindness, where the trial judge failed to address it.

[67] In Duong, a case involving a charge of being an accessory after the fact to murder, the accessory accused had made statements to police that provided an evidentiary basis for an inference that he was wilfully blind to whether the principal had committed murder at the time he assisted the principal. In his statements to the police, the accessory accused said he knew at the time he assisted the principal that the principal was wanted for murder, he knew he would be in trouble for harbouring the principal, and that he chose not to inquire about the principal’s involvement in the homicide because he did not want to know more. Doherty J.A., writing for the court, held that based on this evidence, it was open to the trial judge to find that “the appellant’s statements revealed a state of mind which encompassed the suspicion that [the principal] was in trouble because he had been a party to murder”: Duong, at pp. 402-03.

[68] Similarly, in Briscoe, a case which considered wilful blindness in the context of aiding or abetting murder, the alleged party to the murder had made statements to police which provided an evidentiary basis for leaving wilful blindness to the jury. The trial judge had found that the party’s actual knowledge of the principal’s intent to kill was not established, but failed to consider whether the evidence established the party’s wilful blindness. The Supreme Court ordered a new trial on the basis that the trial judge erred by failing to consider wilful blindness on the trial evidence. The court found that the party’s statements to police provided a basis to infer that he had a “strong, well-founded suspicion that someone would be killed” and that he deliberately chose not to inquire as to what the members of the group he was with intended because he did not want to know: Briscoe, at paras. 10 and 25.

[69] My point is not that statements from the accused bearing on wilful blindness – direct evidence – are always required in order to leave wilful blindness to a jury as a substitute for actual knowledge. Depending on the full evidentiary picture, circumstantial evidence can provide a basis to leave wilful blindness to a jury. But given the limits of the circumstantial evidence bearing on wilful blindness in this case, the comparison to the evidence in Duong and Briscoe is helpful in maintaining the vital distinction between recklessness and wilful blindness. In this case, there is no evidence similar to that in Duong or Briscoe to fill the evidentiary gap in relation to whether the respondent made a deliberate choice not to inquire as to whether Mr. Kabuya-Ntumba was dead.

[70] I have outlined above what is required to establish wilful blindness as a substitute for actual knowledge in proving the mens rea of an offence. The fault in wilful blindness lies not in the act of failing to inquire, but in deliberately choosing not to do so to avoid gaining knowledge of a fact that the accused suspects they will learn if they inquire. It is, in the words of Professor Stuart, quoted in Briscoe at para. 24, “deliberate ignorance” that involves “an actual process of suppressing a suspicion.”

[71] In the context of this appeal, to leave the offence of being an accessory after the fact to murder on the basis of wilful blindness, the evidence would have to allow a reasonable jury, properly instructed, to find not only that the respondent made no inquiries about whether Mr. Kabuya-Ntumba had died, but that the respondent deliberately chose to make no inquiries because he knew or strongly suspected that doing so was likely to fix him with knowledge that Mr. Kabuya-Ntumba had died. On the record in this case, given the limited inferences available from the evidence about what the respondent knew about Mr. Kabuya-Ntumba’s injuries, the inference that the respondent made a deliberate choice not to inquire because he knew or strongly suspected that inquiring would fix him with knowledge that Mr. Kabuya-Ntumba had died is speculative.

[72] The trial evidence would have allowed the inference that the respondent was reckless as to whether Mr. Kabuya-Ntumba had died during the night when the respondent continued to help Mr. Maadani to escape to Montreal and lied to the Montreal police about the source of Mr. Maadani’s injuries. The evidence would have allowed a reasonable jury, properly instructed, to conclude that the respondent knew that Mr. Kabuya-Ntumba had been injured by gunfire, but did not know the extent of his injuries. The evidence would have allowed a conclusion that the respondent was indifferent to the nature of Mr. Kabuya-Ntumba’s injuries and their potential consequences when he assisted Mr. Maadani to escape and told lies to facilitate that escape. These inferences would amount to recklessness, but not to wilful blindness. However, as noted above, the Crown does not rely on recklessness to satisfy the knowledge requirement for accessory after the fact to murder.

[73] This court has not ruled on whether recklessness as to the offence committed by the principal can satisfy the mens rea for accessory after the fact offences: see Duong, at p. 401. Because the Crown abandoned the argument that recklessness can satisfy the mens rea, I would not rule on the issue in this appeal. But I would observe that the language defining the mens rea in s. 23 of the Criminal Code as “knowing that a person [i.e., the principal] has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape” (emphasis added) would appear to make the argument that recklessness can satisfy the mens rea a difficult one: R. v. Zora, 2020 SCC 14, para 117; Sandhu, at pp. 497-98.

[74] To allow the charge of accessory after the fact to murder in this case to go to the jury on the basis of wilful blindness would undermine the important distinction between wilful blindness and recklessness.

[75] One can imagine an evidentiary record where the injuries witnessed by a person charged with accessory after the fact to murder are such that it is inescapable that the victim would die within a short period of time – a “dead man walking” as it was described by Nordheimer J., as he then was, in R. v. Knott. In such a case, it may be open to a reasonable jury, properly instructed, to infer that an accused who assisted the principal to escape over a continuing time period could be found at some point to be wilfully blind to the victim’s death. But the record in this case did not leave that finding open to a reasonable jury, properly instructed.

(4) There was no air of reality to the offence of being an accessory after the fact to attempted murder

[76] Distinct from the wilful blindness argument, the Crown argues that the trial judge erred in not leaving to the jury, as an included offence, the offence of being an accessory after the fact to attempted murder. This argument was not made at trial by the Crown. The respondent argues that the Crown should not be permitted to raise this issue for the first time on appeal. The respondent further argues that, in any event, there was no air of reality to the offence of being an accessory after the fact to attempted murder in this case, and thus, no obligation on the trial judge to instruct the jury on that offence.

[77] For reasons I explain below, the trial judge did not err in not leaving to the jury, as an included offence, the offence of being an accessory after the fact to attempted murder.

[78] In the companion appeal of Osman, the court holds that the offence of being an accessory after the fact to attempted murder can be an included offence to being an accessory after the fact to murder. However, where the victim dies, it will be rare that there is 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, and thus, rare that a trial judge will be required to instruct a jury on the offence of being an accessory after the fact to attempted murder. Without foreclosing the categories in which there could be an air of reality to the offence of being an accessory after the fact to attempted murder as an included offence in cases where the victim dies, the only circumstance that appears realistic on the cases relied on by the Crown is where there is a live issue as to whether the culpable act of the principal caused the death of the victim. I do not reproduce the analysis from Osman, but adopt and apply it in this appeal.

[79] In this case, as in Osman, whether there was an air of reality to accessory after the fact to attempted murder turns on the fact that there was no live issue at trial that the acts of the principal, Mr. Maadani, caused the death of the victim, Mr. Kabuya-Ntumba.

[80] In this case, there was no air of reality to the conclusion that Mr. Maadani committed attempted murder, and as a result, no air of reality to the conclusion that the respondent committed the offence of being an accessory after the fact to attempted murder.

[81] The acts of the principal, Mr. Maadani, killed the victim. At the time the trial judge was considering the directed verdict motion (and subject to Mr. Maadani’s claim of self-defence), there was only an air of reality to Mr. Maadani having committed murder or manslaughter. There was no air of reality to Mr. Maadani having committed attempted murder. It is not in dispute that the shots he fired caused the death of Mr. Kabuya-Ntumba. This case is unlike R. v. Sarrazin, 2011 SCC 54, and R. v. Forcillo, 2018 ONCA 402, because there was no live issue about causation of death. The same evidence was before the jury on the issue of causation of the victim’s death for Mr. Maadani on the murder charge and the respondent on the accessory charge. Just as there was no air of reality to attempted murder for Mr. Maadani, there was no air of reality to being an accessory after the fact to attempted murder for the respondent.

[82] As Doherty J.A. explained in Duong, in order to prove an accessory after the fact offence, the Crown needs to prove that the principal committed the specified offence (or an included offence), and that, at the time the accessory accused did the acts to assist the principal, the accessory knew that the principal had committed the specified offence or an offence included in the specified offence. This requirement is found in the first two elements of the accessory after the fact offence. If there is no air of reality in the evidence in the accessory’s trial to an included offence to the specified offence, the trial judge is not required to instruct the jury on the included offence. In this case, because there is no dispute that the acts of Mr. Maadani killed Mr. Kabuya-Ntumba, there is no air of reality to attempted murder.

[83] The conclusion that there was no air of reality to the respondent being an accessory after the fact to attempted murder is not dictated by the verdict entered against Mr. Maadani. Section 23.1 of the Criminal Code makes whether Mr. Maadani was convicted and what he was convicted of irrelevant to whether the respondent is liable as an accessory after the fact. Rather, the conclusion that being an accessory after the fact to attempted murder is not an available verdict against the respondent is based on the evidence available in this trial to satisfy the first two elements of the accessory offence.

[84] Those elements require the Crown to prove that Mr. Maadani had committed either the specified offence of murder or an included offence to murder, and that, at the time the respondent assisted Mr. Maadani to flee, he knew that Mr. Maadani had committed murder or an included offence to murder. Because the trial evidence does not raise a live issue as to causation of death of Mr. Kabuya-Ntumba, the only available basis on the evidence for the Crown to satisfy the first two elements was that Mr. Maadani committed either murder or manslaughter. Attempted murder and being an accessory after the fact to attempted murder were not available offences to leave to the jury because, given the lack of dispute that Mr. Maadani caused the victim’s death, there was no air of reality to attempted murder.

[85] For these reasons, the trial judge did not err in not leaving to the jury, as an included offence, the offence of being an accessory after the fact to attempted murder.

[86] As noted above, the Crown did not argue at trial that the trial judge should instruct the jury on the offence of being an accessory after the fact to attempted murder as an included offence. While there is force to the respondent’s argument that the Crown should not be permitted to advance on appeal an alternate theory of liability not raised at trial,[^4] in light of my conclusion that there was no air of reality to the offence of being an accessory after the fact to attempted murder, it is not necessary to address that issue.

Disposition

[87] The trial judge did not err in directing a verdict of acquittal on the count of being an accessory after the fact to murder. 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]: Mr. Maadani appealed his conviction for second-degree murder. His appeal was heard together with this appeal, but raises unrelated grounds of appeal. Mr. Maadani’s appeal is under reserve as of the date of release of this decision.

[^2]: The pathology evidence disclosed five separate gunshot injuries to Mr. Kabuya-Ntumba. However, one bullet may have caused two of the injuries.

[^3]: The Crown did not argue at trial that recklessness in relation to Mr. Kabuya-Ntumba’s death was sufficient mens rea for accessory after the fact to murder.

[^4]: See R. v. Varga, p 494; R. v. Suarez-Noa, 2017 ONCA 627, paras 29-38; R. v. Patel, 2017 ONCA 702, paras 56-64.