COURT FILE NO.: CR-20-10000246-0000

DATE: 20210115

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

IBRAHIM KHIAR and ABDULLAHI OSMAN Accused

Counsel:

Mary Humphrey and Elizabeth Jackson, Counsel for the Crown

Marco Sciarra and Marco Forte, Counsel for Ibrahim Khiar Leonardo Russomanno, Counsel for Abdullah Osman

HEARD: January 6, 2021

BEFORE: M.A. CODE J.

REASONS FOR JUDGeMENT

A. OVERVIEW

[1] The two accused, Khiar and Osman, are charged in a multi-count Indictment that is presently scheduled to proceed to trial in this Court on April 19, 2021. The Indictment alleges that Khiar committed second degree murder on Marcel Teme and that Osman was an accessory after the fact to that murder. There are additional counts against Khiar alleging ss. 244.2 and 268 offences, as three innocent bystanders were wounded by the gunshots that caused the death of Teme.

[2] By Order dated December 17, 2020, Justice Forestell appointed me as the case management judge, pursuant to s. 551.1 of the Criminal Code. On January 6, 2021 I heard the first pre-trial Motion in this matter. In that Motion, Osman seeks severance from Khiar pursuant to s. 591(3). At the end of a one day hearing I made a number of case management Orders and adjourned the severance Motion to March 19, 2021, with Reasons to follow. These are my Reasons.

B. FACTS

[3] The alleged murder of Teme took place at 10:21 pm on July 1, 2018, that is, during the late evening of Canada Day. The relevant events are reconstructed mainly from a substantial body of video surveillance evidence. The deceased Teme was walking south on the sidewalks of Augusta Avenue in the Kensington market area of downtown Toronto shortly before he was shot. He had just exited from a bar about three or four minutes prior to the homicide. He had attempted to leave the bar with a beer in his hand and gave the “finger” to the bouncer at the door (in an arguably belligerent manner) as he was departing. It was 10:18 pm.

[4] Teme was alone as he walked south on Augusta Avenue, initially on the west sidewalk. A group of four – two men and two women – were also walking south but on the east sidewalk of Augusta. At some point, around 10:19 pm, Teme crossed Augusta to the east sidewalk and walked behind the group of four (who had been together on the patio of a different bar but in the same general area as the bar where Teme was drinking). There is no evidence of any known association between Teme and the two men and two women who were walking ahead of him on the east sidewalk. It simply appears that they all left the two bars where they were drinking at approximately the same time and that they all headed south on Augusta Avenue in the same general direction.

[5] It appears that Teme approached the group of four who were walking ahead of him at about 10:20 pm. There is no evidence that the two men walking ahead of Teme (alleged to be Osman and Khiar) sought out a confrontation with Teme. However, once Teme approached the group of four, the two men stopped and turned to talk to him. A confrontation of some kind ensued and it escalated quickly. The two women initially continued to walk south and were not present for the initial stages of the developing confrontation. However, as the apparent dispute or argument between the three men escalated, the two women returned and were present for the later stages that culminated in the alleged murder of Teme. I have described the events at this stage in qualified terms (using the verb “appears”) because it was dark at this time, the camera that captures the confrontation is at some distance, and the images are not entirely clear.

[6] In summary, the video surveillance of what I have called the dispute or confrontation between the three men appears to disclose the following (during the approximately one minute time period between 10:20 and 10:21 pm when the three men interacted on the east sidewalk):

• the larger of the two men who had been walking in front was wearing a blue top, black pants, and a baseball hat. He is alleged to be Khiar. He initially appears to be engaged with Teme in a discussion of some kind while they faced each other on the sidewalk;
• the somewhat smaller of these two men, who was dressed entirely in white, is alleged to be Osman. He is standing close to the larger man, at his right, while the larger man appears to be leading the discussion with Teme;
• after some initial discussion, an arm appears to reach out between Teme and the larger man alleged to be Khiar. It appears to be Teme’s arm;
• at this point, the man dressed in white (alleged to be Osman) steps forward, somewhat aggressively, and appears to now take the lead in what has clearly become a more heated argument or confrontation with Teme;
• as the man in white steps forward, Teme steps back or stumbles back, perhaps pushed by the man in white, while they argue;
• Teme then appears to punch the man in white in the face;
• at this point, the larger man in the blue top steps forward and begins to fire a gun at Teme (bright muzzle flashes are apparent), while Teme and the man in white are pushing or wrestling or struggling;
• the man in white (alleged to be Osman) appears to have been knocked off balance by the punch from Teme but he manages to wrestle or throw or push Teme to the ground. An eyewitness described the man dressed in white pushing Teme immediately before the man dressed in black (and blue) began firing a gun;
• the first four shots are fired while Teme and the man in white are still standing and wrestling on the sidewalk. By the fourth shot, Teme is falling to the sidewalk where he lands on his back while the man in white (alleged to be Osman) has let go of Teme and stumbled out into the street;
• the larger man in blue (alleged to be Khiar) continues to fire four more shots at Teme while Teme lies on the sidewalk on his back, reaching up with his arms towards the shooter in an apparently defensive or pleading posture;
• the entire sequence of eight gunshots took about 1.6 seconds. Teme was struck by three of the eight bullets. He struggled to crawl along the sidewalk as the perpetrators fled and while bystanders called 911. Teme died at the hospital three days later, on July 4, 2018, after surgery had failed to save his life.

[7] After the above confrontation was over, the two men and two women fled to the south on Augusta Avenue. They turned east on Nassau Street, with the larger man in the blue top in the lead. The man dressed in white, alleged to be Osman, can be seen raising his shirt up over the lower half of his face, in an apparent attempt to disguise his appearance. While running east on Nassau, the man dressed in white appears to direct the two women to separate from him.

[8] There is substantial evidence connecting Osman to a black Chevy Cruze rental car that appears to have arrived in the Kensington Market area that evening at about 8:00 pm, shortly before Osman and his girlfriend attended at two bars in the area. The car appears to have been parked on Nassau Avenue in the area where the group of four was later seen fleeing from the scene of the homicide. The car was rented in Ottawa, where Osman resided at the time (and where he was required to reside by terms of bail relating to certain outstanding charges). The car was rented in the name of a man with a criminal history. It can be inferred from all the evidence that the two men involved in the homicide on Augusta Avenue fled in the black Chevy Cruze, drove east on Nassau Street to Spadina Avenue, and then drove south on Spadina to Dundas Street. At the corner of Spadina and Dundas, the car was involved in an accident, the two men abandoned it, and they fled to the west on foot along the north sidewalk of Dundas Street. Once again, the larger man dressed in a blue top, black pants, and baseball hat is in the lead and the man dressed in white is following behind while raising his shirt in an attempt at disguise.

[9] The fingerprints of both Osman and Khiar were found in the abandoned Chevy Cruze. The fingerprints of Khiar were located on the passenger side. Osman’s DNA was also found in the car. Osman’s girlfriend (now wife) is connected to the car through its Bluetooth system. In addition, a receipt found in the backseat of the Chevy Cruze can be connected to Osman and his wife.

[10] There is no dispute that the somewhat smaller man dressed entirely in white is Osman. This identification issue has now been admitted, after Osman’s girlfriend (now wife) testified at the preliminary inquiry and identified herself and Osman as the couple who were seated in the patio of a bar on Augusta Avenue on the night in question and who walked together to the south after leaving the patio. She identified the other woman with them as her niece. She declined to identify the larger man in the blue top who accompanied them. She also claimed no recollection of the shooting that night due to alcohol consumption. Her niece gave similar evidence.

[11] The two accused were not arrested until much later. Khiar was arrested on February 20, 2019, some eight months after the homicide. Osman was not arrested until September 19, 2019, almost 15 months after the homicide. Khiar has remained in custody throughout. In addition to the murder indictment in the present case, Khiar is facing a second murder indictment that just arrived in this Court in January 2021, after committal at a separate preliminary inquiry. The first appearance and J.P.T. on that second murder indictment is presently scheduled before Forestell J. on January 25, 2021. Khiar is also awaiting trial on a third indictment alleging both firearms and drug trafficking (one kilo of fentanyl was apparently seized). This third indictment is scheduled for trial on February 14, 2022 with one co-accused.

[12] Osman was initially denied bail by Akhtar J., on February 14, 2020. See R. v. Osman, 2020 ONSC 965. He was granted bail on June 4, 2020 by Goldstein J., on the basis of a material change in circumstances (a better release plan and the arrival of the Covid-19 pandemic and its associated risks). See: R. v. Osman, 2020 ONSC 3472. As a result, Osman spent almost nine months in pre-trial custody. He participated in Khiar’s already scheduled preliminary inquiry, after some commendable cooperation by both the Crown and defence counsel. The Deputy Attorney General then preferred a direct Indictment on May 13, 2020, joining Osman and Khiar. Some 16 months have passed between Osman’s arrest and today’s date, for s. 11(b) Charter of Rights purposes. The April 19, 2021 trial date will be exactly 19 months after Osman’s arrest, so the case is not yet in s. 11(b) trouble.

[13] The final important fact is that Khiar presently wishes to exercise his right to trial by judge and jury. Osman, on the other hand, wishes to re-elect trial by judge alone, if severance is granted and if the Deputy Attorney General consents to re-election pursuant to s. 473. At the time when this Motion was argued, jury trials were not being conducted, due to the Covid-19 pandemic and the Chief Justice’s directive suspending jury trials until February 1, 2021 (this date has now been extended). If the trial does not proceed on April 19, 2021, due to Khiar’s insistence on his right to trial by jury and due to the current directive of the Chief Justice concerning jury trials during the pandemic, then there will be additional delay. Counsel for Osman advises that he will not be available for an eight week jury trial (the presently scheduled length of this case) until April 2022. In other words, there would be a further 12 months of delay resulting in total delay for Osman of just over 30 months. Of course, for s. 11(b) Charter purposes there could be deductions for “defence delay” and “exceptional circumstances” that would bring the net delay below 30 months.

C. ANALYSIS

[14] I recently wrote at some length about the law of severance in R. v. Creary and Creary, 2019 ONSC 4843. I do not intend to repeat the summary set out therein of the applicable legal principles and simply adopt it for purposes of the present Motion.

[15] At the outset I should state that this is a relatively close case. Good arguments were advanced on both sides of the severance issue by Ms. Humphrey and Mr. Russomanno. I will begin with a brief analysis of the realistic issues that are likely to arise at trial because the law of severance has to be applied in the context of those issues.

[16] In my view, identification is not a serious issue in this case. The accused Osman has now admitted, through counsel, that he is the man dressed in white who was present at the shooting of the deceased Teme. There is strong direct and circumstantial evidence supporting this admission. The accused Khiar has apparently not yet made a similar admission. However, in the Form 17 completed by all counsel on March 2, 2020 for the second J.P.T. before McMahon J., the following was stated:

“It is the Crown’s understanding that defence counsel for Khiar conceded identification at the last JPT so the Crown will no longer be bringing a Leaney Application” [emphasis added].

[17] When I sought clarification from counsel for Khiar as to his position concerning the above statement in the Form 17, Mr. Sciarra advised that identification will be conceded at trial provided the Crown calls its identification evidence. There is a substantial body of circumstantial evidence identifying the larger man in the blue top as Khiar. This man can be seen on surveillance video at 8:12 pm leaving a residence at 15 La Rose Avenue (which is apparently associated with Khiar), arriving in a Beck taxi on Augusta Avenue at 8:36 pm, attending at a bar on Augusta Avenue at 8:45 pm (where Osman and his girlfriend had previously attended), leaving this first bar at 8:56 pm and joining Osman and his girlfriend on the patio of another nearby bar where the second female joins the group at 9:32 pm, before they all leave together at 10:17 pm. In addition, there is Leaney evidence identifying Khiar as the larger man in the blue top. See: R. v. Leaney and Rawlinson (1989), 50 C.C.C. 93d) 289 (S.C.C.); R. v. Berhe (2012), 2012 ONCA 716, 292 C.C.C. (3d) 456 (Ont. C.A.). As summarized above, there is strong evidence, including fingerprints, linking Khiar to the Chevy Cruze driven away from the scene by the perpetrators and then abandoned nearby at Spadina and Dundas after a collision. There is also post-offence evidence of association between Khiar and Osman. Finally, it appears that a search warrant executed at 15 La Rose Avenue resulted in the seizure of a receipt for the shirt worn on the night in question by the larger man in the blue top.

[18] I am satisfied that identification will not be a serious issue at trial, in light of the above body of evidence. There is some tactical jockeying going on right now concerning which identification evidence will be called by the Crown at trial. This needs to be resolved at a further J.P.T., as I will discuss at the end of these Reasons.

[19] In addition to identification not being a serious trial issue, causation of death is obviously not an issue. Finally, the mens rea for murder is not a realistic issue, given that the larger man in the blue top fires eight bullets at Teme from close range, including four bullets while Teme is lying helplessly on the ground.

[20] Mr. Sciarra advised that provocation and self-defence are the main defences at trial. The defence also hopes to rely on some form of diminished capacity arising from P.T.S.D., as Khiar had been the victim of an earlier shooting at the Thompson Hotel on February 25, 2017. This was over 16 months prior to the events of July 1, 2018, it did not involve Teme in any way, and no psychiatric assessment has been obtained. The defence had been hoping to retain Dr. Rosenbloom to assess Khiar but that plan is no longer being pursued. See: R. v. McCaw, 2019 ONSC 53 where Spies J. made certain adverse findings about Dr. Rosenbloom and referred to similar adverse findings made by other judges. I will refer further to this possible psychiatric defence at the end of these Reasons as it needs to be the subject of a further J.P.T. and a pre-trial Motion, if it is being pursued.

[21] In my view, self-defence pursuant to s. 34 has little prospect of success. Teme was alone and he was outnumbered by Osman and Khiar. He was also unarmed, while Khiar was armed with a handgun capable of firing eight shots in 1.6 seconds. Teme also appears to be smaller than both Osman and Khiar. Finally, Teme appears to have been backing up while Osman advanced somewhat aggressively. Although Teme appears to have punched Osman in the face at this point, Khiar’s response – drawing a gun and firing repeatedly at close range at a man who was being wrestled to the ground by Osman – is so disproportionate to the single punch that it is unlikely to be considered “reasonable in the circumstances”. In particular, the final four shots fired while Teme was lying on his back on the ground and reaching up with both hands, in a pleading or defensive gesture, is likely to defeat any claim of self-defence. I should note, in this regard, that Mr. Russomanno stated in his Factum on the Motion that Osman “has no intention to raise any issues relating to self-defence.”

[22] The only possible issue for Khiar, in my view, is s. 232 provocation. It appears that the confrontation with Teme on Augusta Avenue was “sudden” and that the two accused had not sought him out. It also appears that Khiar’s response to the confrontation, drawing and firing his gun, occurred “on the sudden”. The live s. 232 issues will be: first, whether Teme’s punch to Osman’s face amounted to “an indictable offence” or whether Teme was acting in self-defence after Osman had advanced somewhat aggressively and after Teme appeared to be stepping back; and second, whether Teme’s conduct was “sufficient to deprive an ordinary person of the power of self-control.” Both of these issues will depend to some extent on the nature of the discussion that occurred between Teme, Khiar, and Osman, leading up to the final escalation of their confrontation. There are no witnesses to this discussion, other than Khiar and Osman, given that the two women in their group were only present for the later stages of the confrontation and given their claimed lack of recollection concerning these events. There were three witnesses nearby, who were all wounded by stray bullets, but they apparently did not hear what was being said between the three men.

[23] The only realistic issue for Osman, in my view, is the mental element in s. 23. There is strong circumstantial evidence inferring that Osman drove the Chevy Cruze away from the scene and, as a result, his conduct had the effect of assisting Khiar’s escape from what was either a murder or a manslaughter. However, s. 23 requires proof that Osman’s act of driving the car away from the scene of the crime was “for the purpose of enabling [Khiar] to escape.” The law in Canada is settled that a mens rea requirement of “purpose” is “essentially synonymous with intention”, and that it does not refer to “desire” or “ultimate ends” or motive. In addition, “a person intends a particular consequence not only when his conscious purpose is to bring it about, but also when he foresees that the consequence is certain or substantially certain to result from his conduct.” See: R. v. Lewis (1979), 1979 CanLII 19 (SCC), 47 C.C.C. (2d) 24 at 33-36 (S.C.C.); R. v. Hibbert (1995), 1995 CanLII 110 (SCC), 99 C.C.C. (3d) 193 at 207-214 (S.C.C.); R. v. Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 49 C.C.C. (2d) 369 at 379-385 (Ont. C.A.). Contra: R. v. Steane [1947] 1 K.B. 997 (C.C.A.). In other words, the issue is not whether Osman desired the escape of Khiar from a murder or manslaughter but whether he knew his actions were substantially certain to have that effect. This issue will turn on common sense inferences and on any testimony from Osman and/or Khiar about the circumstances surrounding their escape in the Chevy Cruze. Once again, no one else was present in the car when they made their escape.

[24] In light of the above factual and legal issues that are likely to arise at trial, it can be seen that the evidence that the Crown would have to call at two separate severed trials completely overlaps. Furthermore, the “truth-seeking function” of the trial would be much better served by a single trier of fact hearing all the evidence relating to the overlapping factual and legal issues in the case. As noted above, the two accused are the only witnesses to the two central events in the case (the verbal exchanges leading to the altercation with Teme and the escape in the Chevy Cruze). See: R. v. Suzack and Pennett (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 at paras. 88-9 (Ont. C.A.); R. v. Last (2009), 2009 SCC 45, 247 C.C.C. (3d) 449 at paras. 16-18 (S.C.C.). These factors relate to both trial efficiency and a just verdict and they argue strongly in favour of a single joint trial.

[25] On the other hand, Osman is ready to proceed to trial on the presently scheduled trial date in three months time. He is not bringing any pre-trial motions, he is willing to consent to trial by judge alone, he is willing to negotiate substantial admissions that will shorten the trial, and he submitted at the hearing of the Motion on January 6, 2021 that it could realistically be anticipated that the state of the pandemic will not permit jury trials in April 2021 (this latter submission proved to be accurate, as discussed below). None of this applies to Khiar who has a number of pre-trial motions (currently scheduled to take up two weeks of the eight week trial), who has not yet retained a psychiatrist to assess his diminished capacity (P.T.S.D.) defence, who appears less willing to make admissions, and who is not presently willing to consent to a judge alone trial. In fairness to Khiar and his counsel, I should note that he is willing to attend a further J.P.T. in order to discuss these matters (as well as any possible resolutions).

[26] There is a long line of authority holding that one co-accused’s s. 11(b) Charter interests can become a reason for granting severance, when substantial delays are being caused by the other co-accused, and when the accused seeking severance has made every effort to expedite the trial. See: R v. Last, supra at para. 18; R. v. Vassell (2016), 2016 SCC 26, 337 C.C.C. (3d) 1 (S.C.C.); R. v. Manasseri (2016), 2016 ONCA 703, 344 C.C.C. (3d) 281 (Ont. C.A.); R. v. Gopie (2017), 2017 ONCA 728, 356 C.C.C. (3d) 36 (Ont. C.A.); R. v. Ny (2016), 2016 ONSC 8031, 343 C.C.C. (3d) 512 (Ont. S.C.J.); R. v. Brissett et al (2017), 2017 ONSC 401, 373 C.R.R. (2d) 170 at paras. 43-52 (Ont. S.C.J.), aff’d 2019 ONCA 11.

[27] The case at bar is not yet as compelling as any of the cases in the above line of authority because the present total delay of 16 months in relation to Osman is not unreasonable, especially when the trial date was set at the beginning of the pandemic, apparently on the basis of counsel’s availability, and when it is an eight week jury trial. At the point when that trial date is reached on April 19, 2021 there will have been 19 months of delay in relation to Osman, which does not begin to suggest that an imminent s. 11(b) Charter violation will occur unless severance is granted. I should also note, in this regard, that the Crown has made every effort to expedite the case by providing timely disclosure, arranging the scheduling of witnesses at Khiar’s preliminary inquiry in order to allow counsel for Osman to participate, indicating a willingness to seek the Deputy Attorney General’s consent to a judge alone trial, and seeking admissions that would shorten the trial. In addition, the Crown has consented to bail variations that allow Osman to attend at work and at his mosque. In this regard, see R. v. Jordan (2016), 2016 SCC 27, 335 C.C.C. (3d) 403 at para. 75 (S.C.C.) and R. v. Cody (2017), 2017 SCC 31, 349 C.C.C. (3d) 488 at paras. 48-61 (S.C.C.), where the Court discusses the duty to mitigate delay caused by “exceptional circumstances”.

[28] Mr. Russomanno’s main argument at the hearing of the Motion on January 6, 2021 was that the April 19, 2021 trial date cannot realistically be expected to proceed, given the state of the pandemic and given Khiar’s present refusal to consent to a judge alone trial. In other words, Mr. Russomanno is trying to be pro-active and trying to preserve the April 19, 2021 trial date by seeking severance and consent to re-election now, rather than waiting for what he submits will otherwise be an inevitable adjournment. After the hearing of the Motion concluded, and while I was writing these Reasons, the Chief Justice issued a further directive extending the suspension of jury trials from February 1, 2021 until May 3, 2021 “at the earliest”.

[29] I am sympathetic to Mr. Russomanno’s efforts in this regard. Nevertheless, I am of the view that the severance motion is somewhat premature for a number of reasons. First, Khiar’s present position is that he wishes a jury trial. Now that the Chief Justice has extended the suspension of jury trials until May 3, 2021 “at the earliest”, Khiar’s position may change. He now knows that he cannot have a jury trial on April 19, 2021. Second, the Crown has not yet sought the consent of the Deputy Attorney General to a judge alone trial. Until that is done, severance in order to permit a judge alone trial is somewhat academic. Third, the promised admissions that would shorten a severed judge alone trial have not yet been negotiated. And fourth, a further J.P.T. is required in order to address various issues that are complicating the present joint trial.

[30] For all these reasons, I adjourned the severance Motion until March 19, 2021. On that date, I will hear any further argument and will give a final ruling. By that date, we will know with some certainty whether Khiar will consent to a judge alone trial, now that jury trials are clearly not proceeding in April 2021. The parties will have filed any and all motions and will still have a month to prepare for trial. We will know whether the Deputy Attorney General has consented to a re-election. Any admissions will have been negotiated. And some of the difficulties in the case may have been resolved at a further J.P.T. In other words, I will be in a much better position to decide the present Motion.

[31] I made the following case management Orders as an adjunct to the above adjournment of the severance Motion:

• first, the Transcript of the preliminary inquiry must be expedited and completed by January 31, 2021. It has been unacceptably outstanding for a year. The Crown will advise the supervisor of court reporters of my Order;
• second, counsel must complete their negotiations in the next two months of any admissions that will be made in order to shorten the trial. The Crown can negotiate separately with counsel for the two accused so that I can appreciate any differences between the admissions they are willing to make and the impact of any such difference on the anticipated length of trial. The admissions should be reduced to writing and signed;
• third, the Crown must quickly complete and submit its materials seeking the consent of the Deputy Attorney General to a judge alone trial, whether that trial proceeds jointly against both accused or against Osman alone after severance has been granted. The Deputy Attorney General must respond to the Crown’s request in the next two months;
• fourth, all counsel must preserve the April 19, 2021 trial date in their calendars on the assumption that the trial will proceed, in one form or another, on that date;
• fifth, counsel for all parties must attend before McMahon J. for a further J.P.T. in the week of January 25, 2021 (the parties can fix the exact date with the Trial Office). All counsel agree, as do McMahon J. and Forestell J., that it is appropriate for McMahon J. to remain seized with the J.P.T. in this matter (as well as with Khiar’s other two indictments), as he is already familiar with the case. The issues to be discussed at that further J.P.T., at a minimum, should include the following: possible resolutions (including any possible global resolution of Khiar’s three separate indictments); Khiar’s position in relation to proof of identity and its relationship to the Crown’s Leaney identification evidence and to a potential diminished capacity (P.T.S.D.) defence; the Crown’s post-offence association evidence relating to Khiar and Osman; and whether Khiar might consent to a judge alone trial, now that it is certain that there will be no jury trials in April 2021 and that any new date for a jury trial may be a year away; and
• finally, depending on the outcome of this further J.P.T., the Crown should bring a Motion for Directions before me. Now that I have been appointed as a s. 551.1 case management judge, I am available to make pre-trial rulings that may help to streamline the trial. For example, if Khiar’s diminished capacity (P.T.S.D.) defence is going to become contentious, a Motion can be brought on before me to rule on the admissibility of any disputed evidence (and this, in turn, may help to resolve the Leaney identification evidence issue). Similarly, if Osman’s post-offence association with Khiar remains contentious, a Motion can be brought on before me to rule on the matter. There are other pre-trial motions that I could rule on. For example, a s. 8 motion is being considered by Khiar in relation to the search of the La Rose Avenue residence, and there is reference to a Third Party Records motion and to various Scopelliti motions in the Form 17, all in relation to Khiar’s defence. If it would help to resolve these issues in advance of the trial, I am now available to rule on them. The scheduling of these potential s. 551.3 motions can be discussed at a Motion for Directions before me, after the further J.P.T. before McMahon J. has concluded.

D. CONCLUSION

[32] For all the above reasons, Osman’s severance Motion is adjourned to March 19, 2021 and the six above case management Orders are made pursuant to s. 551.3. I wish to thank all counsel for their helpful and effective submissions.

M.A. Code J.

Released: January 15, 2021

COURT FILE NO.: CR-20-10000246-0000

DATE: 20210115

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

IBRAHIM KHIAR and ABDULLAHI OSMAN Accused

REASONS FOR JUDGeMENT

M.A. Code J.

Released: January 15, 2021