R. v. Khiar, 2021 ONSC 4677

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

DATE: 20210630

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

IBRAHIM KHIAR and

ABDULLAHI OSMAN

Accused

Mary Humphrey and Elizabeth Jackson, Counsel for the Crown

Marco Sciarra and Marco Forte, Counsel for Ibrahim Khiar

Leonardo Russomanno and Kim Schofield, Counsel for Abdullahi Osman

HEARD: May 25 – 28 and 31, and June 1 – 4, 2021

M.A. CODE J.

REASONS FOR JUDGeMENT ON SIX PRE-trial motionS

A. OVERVIEW

[1] The two accused, Ibrahim Khiar and Abdullahi Osman (hereinafter, Khiar and Osman) are jointly charged in an Indictment that is awaiting trial in this Court. The Indictment alleges, amongst other counts, that Khiar murdered one Marcel Teme in Toronto on July 1, 2018 and that Osman was an accessory after to the murder. I will refer to this as the “first murder.” Khiar is also awaiting trial in this Court on a second Indictment. It alleges that Khiar murdered one Jaunoi Christian in Toronto on February 8, 2019. I will refer to this as the “second murder.” The presently scheduled trial dates are April 11, 2022 for the “first murder” and September 12, 2022 for the “second murder.”

[2] I heard six pre-trial Motions relating to the above two cases, during a nine-day period in May and June 2021. The proceedings were conducted over the Zoom video-conferencing platform, on consent of the parties, due to the Covid-19 pandemic. Five of these pre-trial Motions related solely to the “first murder” and one related to an expert evidence issue that is common to both cases. I have been appointed as the “case management judge”, pursuant to s. 551.1 of the Criminal Code, in relation to the “first murder”. The parties sensibly agreed that I should rule on the expert evidence issue in relation to both cases, even though I had not been appointed as a “case management” judge in relation to the “second murder”.

[3] Two of the pre-trial Motions were relatively straightforward and I made oral rulings at the end of argument, with written reasons to follow. The other four Motions were more difficult and I reserved judgement at the end of oral argument. These are my Reasons for Judgement on the six pre-trial Motions.

B. THE MOTION ALLEGING THAT OSMAN “ABSCONDED” DURING THE HEARING

[4] This particular Motion was not anticipated and was not filed in advance of the hearing. It arose extemporaneously when Osman failed to appear on the fifth, sixth, and seventh days of the hearing. During the first four days of the hearing, he had attended on the Zoom platform, while on bail at his home in Kanata near Ottawa. On the eighth day of the hearing, the Crown applied pursuant to s. 475 of the Criminal Code, seeking a finding that Osman had “absconded”. I made that finding after hearing evidence and argument, with reasons to follow. The final two days of the pre-trial Motions then proceeded in Osman’s absence, but with his counsel participating.

[5] The evidence in support of the Crown’s s. 475 Motion is neither long nor complex. The background facts are that Osman was not arrested on the charge of accessory after to the “first murder” until September 19, 2019, that is, over 14 months after the alleged murder occurred. He was initially denied bail by Akhtar J., on February 14, 2020. The Attorney General preferred a direct Indictment, in order to join Osman with Khiar (who had been arrested earlier and was committed for trial). A joint trial date was set in this Court for April 19, 2021. Osman brought a second bail application and he was released by Goldstein J. on June 4, 2020, at a time when the pandemic was delaying trials in this Court.

[6] I began hearing pre-trial Motions on January 6, 2021. In particular, I heard a Motion brought by Osman who was seeking severance in order to potentially enable a re-election to trial by judge alone (Khiar was exercising his right to trial by jury and jury trials were being repeatedly delayed due to the pandemic). Osman appeared on the severance Motion, attending court on the Zoom platform from his bail residence in Brampton. After hearing argument, I adjourned the Motion to March 19, 2021, in part to await the Chief Justice’s decision as to whether the April 19, 2021 joint trial date could proceed as a jury trial, and in part to await the Attorney General’s decision as to whether the Crown would consent to the proposed re-election, in the event that severance was granted. On March 19, 2021, the severance Motion resumed before me. Once again, Osman attended over Zoom from his bail residence in Brampton. The Attorney General declined to consent to Osman’s proposed re-election. As a result, the severance Motion became academic and it was dismissed. The upcoming April 19, 2021 joint trial date was adjourned due to the Chief Justice’s further directive which continued to suspend jury trials during the pandemic. A new trial date was set for April 11, 2022. See: R. v. Khiar, 2021 ONSC 356, where these earlier proceedings are described in greater detail.

[7] I ordered the parties to file their remaining pre-trial Motions. Five Motions were filed and, as noted above, I began hearing them over the Zoom platform from May 25^th to 28^th, 2021, in the virtual presence of both Osman and Khiar and their counsel. The first three Motions were completed and we began hearing the fourth Motion on Friday, May 28, 2021. Court was adjourned for the weekend at about 4:45 p.m. Osman last appeared at this time late on a Friday when court was adjourned. For the first 12 months that Osman was on bail, he had been residing in Brampton with his wife’s family, who were his sureties. On March 29, 2021 his bail was varied, on consent of the Crown, in order to allow him to reside independently, provided that he gave notice to the police of his new address. On May 20, 2021, he gave notice in writing, through counsel, that he was moving back to the Kanata address where his own family resided. He was at this Kanata residence when he appeared before me, virtually on Zoom, during the first four days of the pre-trial Motions.

[8] On Monday, May 31, 2021, the pre-trial Motions resumed and Osman failed to appear. Counsel advised that he had been unable to reach his client. The Crown advised that the Ottawa police were actively looking for Osman, in relation to an unspecified matter for which they had an arrest warrant. I adjourned court for one day in order to allow counsel and the police to make further efforts to find Osman. I issued a bench warrant.

[9] On Tuesday, June 1, 2021, Osman again failed to appear. Counsel and the Ottawa police had continued with their efforts to find him, without success. His surety had also been contacted and the surety had been unable to reach Osman. I ordered that Khiar’s s. 8 Charter Motion, which was the fifth and last scheduled Motion, could proceed in Osman’s absence. Osman had no standing on that particular Motion and his counsel agreed that he had no right to participate. Counsel agreed to continue to attend, as a “watching brief”. The Crown indicated that they would proceed with a s. 475 Motion, once the s. 8 Motion was completed, in order to seek a finding that Osman had “absconded”. If there was a finding that Osman had “absconded”, this would allow the interrupted fourth Motion to proceed in Osman’s absence. Osman did have standing on the fourth Motion, which related to expert opinion evidence and had been suspended when he failed to appear. Osman’s counsel agreed to keep trying to reach his client, in order to seek instructions pursuant to s. 650(2)(b), to proceed in Osman’s absence during the remainder of the fourth motion. This would avoid the potential “adverse inference” that could result from a finding under s. 475 (2), which was counsel’s greatest concern.

[10] On Wednesday, June 2, 2021, Osman again failed to appear. Once again, the Ottawa police had been unable to find and arrest him and his counsel still had no contact with or from Osman. The s. 8 Charter Motion brought on behalf of Khiar proceeded in Osman’s absence. It was completed that same day.

[11] On Thursday, June 3, 2021, Osman failed to appear for a fourth straight day. The Crown commenced its s. 475 Motion and called Det. Sgt. Keri Fernandes, the Toronto Homicide Squad officer-in-charge of the “first murder” investigation. She testified that there had been a “triple shooting” in Ottawa at 6:30 p.m. on Friday, May 28, 2021, that is, less than two hours after the present court proceedings had adjourned. On Sunday, May 30, 2021, the Ottawa police had obtained a Canada-wide arrest warrant for Osman on two counts of first degree murder and one count of attempt murder. Two other co-accused were also charged. All three accused were still at large. The Ottawa police set up surveillance at Osman’s bail address in Kanata on Saturday, May 29, 2021. On Sunday, May 30, 2021, they knocked on the door, spoke to Osman’s family, and were advised that Osman was not residing there and that he was residing in Toronto. The Ottawa police obtained information that Osman had purchased a train ticket from Via Rail at 2:04 a.m. on Saturday, May 29, 2021. The ticket was for an Ottawa to Toronto train that departed at 8:35 a.m. on Saturday, May 29, 2021. They also obtained video surveillance from Union Station in Toronto showing Osman arriving at 1:18 p.m. on Saturday, May 29, 2021.

[12] Det. Sgt. Fernandes called Osman’s surety, Abbas Abdullahi on Monday, June 1, 2021. Abdullahi advised that he had been in regular contact with Osman and that he last spoke to Osman on Wednesday, May 26, 2021, when Osman appeared in court in the present pre-trial Motion proceedings. Abdullahi heard about the arrest warrant for Osman on Sunday, May 30, 2021, when the Ottawa police issued a Press Release concerning the “triple shooting” and the three arrest warrants. Abdullahi had been trying to reach Osman, in the usual way, by calling his family and calling his wife’s phone. He was told that the family did not know where Osman was. The Ottawa police had checked health care records and arrest records and there was no report of Osman having been hospitalized or arrested.

[13] The source of most of Det. Sgt. Fernandes’ information, as summarized above, was Det. Sgt. Chris O’Brien who is the officer-in-charge of the Ottawa murder case. A copy of the arrest warrant was filed on the s. 475 Motion. I was satisfied that the hearsay received on the Motion without objection was credible and trustworthy, by analogy to a bail hearing or sentencing hearing. See: R. v. Gardiner (1982), 1982 30 (SCC), 68 C.C.C. (2d) 477 at 514 (S.C.C.); R. v. Albright (1987), 1987 26 (SCC), 37 C.C.C. (3d) 105 at 111 (S.C.C.).

[14] The leading case relating to the s. 475 power to proceed in the absence of an accused who has “absconded,” and to draw an “adverse inference” from this finding, is R. v. Garofoli et al (1988), 1988 3270 (ON CA), 41 C.C.C. (3d) 97 at 141 (Ont. C.A.). Martin J.A. gave the judgement of the Court (Cory and Finlayson JJ.A. concurring). On further appeal, the Supreme Court unanimously agreed with Martin J.A.’s analysis of the s. 475 issue: R. v. Garofoli (1990), 1990 52 (SCC), 60 C.C.C. (3d) 161 at 201 and 216 (S.C.C.). The essence of Martin J.A.’s reasoning on this point is as follows:

I accept Mr. Wright’s submission that the word “absconds” in s. 431.1 [now s. 475] means more than mere failure to appear. In my view, the word “absconds” imports that the accused has voluntarily absented himself from his trial for the purpose of impeding or frustrating the trial, or with the intention of avoiding its consequences. Proof that the accused deliberately absented himself from the trial would, of course, permit the drawing of an inference as to the necessary intent.

[15] Section 475 does not define the term “abscond”. Its dictionary meaning is to “leave hurriedly and secretly; flee from justice”: The New Shorter Oxford English Dictionary, 1993 Vol. 1, at p. 8. There is overwhelming evidence that Osman is “fleeing from justice” and that he has “deliberately absented himself from the trial” proceedings, and so the conduct element of “absconding” is made out. The only issue raised by Mr. Russomanno, on behalf of Osman, is whether the “necessary intent” referred to by Martin J.A. has been made out. Martin J.A. referred to that “intent” as “the purpose of impeding or frustrating the trial, or with the intention of avoiding its consequences.” Mr. Russomanno submitted that this “purpose” is close to a “motive” requirement and that Osman’s apparent “purpose”, in this sense, was not to frustrate or impede the present Toronto pre-trial motions but to avoid arrest on the new Ottawa “triple shooting” charges.

[16] A mens rea requirement of “purpose”, in most contexts, is “understood as being synonymous with intention” and does not mean “desire” or “ultimate ends” or “motive.” See: R. v. Lewis (1979), 1979 19 (SCC), 47 C.C.C. (2d) 24 at 33-36 (S.C.C.); R. v. Hibbert (1995), 1995 110 (SCC), 99 C.C.C. (3d) 193 at 207-214 (S.C.C.). Martin J.A. used the terms “intention” and “purpose” interchangeably in Garofoli and so he clearly meant that the requisite mental element was “synonymous with intention,” as subsequently explained in Hibbert. In his earlier well-known decision in R. v. Buzzanga and Durocher (1979), 1979 1927 (ON CA), 49 C.C.C. (2d) 369 at 379-385 (Ont. C.A.), Martin J.A. had held that “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.” Assuming that Osman’s ultimate goal when he fled from Ottawa on Saturday, May 29, 2021, was to avoid arrest for the “triple shooting” that had just occurred, he must have known that he had to avoid court on Monday, May 31, 2021 in order to achieve that goal. I am therefore satisfied that Osman fled from Ottawa with the intention of avoiding the consequences of attending court on the Toronto pre-trial motion proceedings. In other words, he had both the necessary intent to “abscond” on the Toronto motion proceedings as well as the ultimate motive of avoiding arrest on the new Ottawa charges.

[17] Mr. Russomanno frankly acknowledged that his main concern, on behalf of his client, was not that the Court would proceed and conclude the remainder of the fourth pre-trial Motion in Osman’s absence. Mr. Russomanno agreed to continue attending on that Motion and representing his client’s interests. Rather his concern was that the Court would also draw the s. 475(2) “adverse inference” in relation to the merits of the case, whether at a subsequent jury trial or a judge alone trial. I indicated that, in my view, no such “adverse inference” would be appropriate if Osman was eventually arrested or if he surrendered prior to the commencement of the trial on the merits. Ms. Jackson, on behalf of the Crown, agreed with this proposition. The statutory language in s. 475(2) is discretionary (providing that the court “may draw an inference adverse to the accused from the fact that he has absconded”). Furthermore, the context in which Osman “absconded” is the five pre-trial Motions and not the trial of the merits. I indicated that I would receive further submissions as to whether an “adverse inference” should be drawn in relation to Osman’s s. 11(b) Charter Motion, which was argued shortly before he “absconded.” That issue will be addressed below.

[18] In conclusion, I was satisfied that Osman had “absconded” and the pre-trial Motions proceeded to conclusion in his absence. I should briefly address the question of whether s. 475 applies to the present pre-trial motion proceedings, or whether it applies only to the trial of the merits. The text of s. 475 repeatedly refers to an accused who absconds “during the course of his trial,” and to the court’s power to “continue the trial” or to “adjourn the trial,” and to an accused who “reappears at his trial.” It is settled law that the term “trial” has different meanings, depending on the context in which it is used in the various provisions of the Criminal Code. As Dickson J. (as he then was) put it in R. v. Basarabas and Spek (1982), 1982 216 (SCC), 2 C.C.C. (3d) 257 at 265 (S.C.C.), speaking for the Court:

The question of fixing the time of the commencement of a jury trial has been the subject of some difficulty in the past. It seems possible, however, on the authorities and on principle to reach the following conclusions.

First, the time of commencement of a jury trial will vary according to the circumstances and the language of the section of the Criminal Code being applied. Thus, the word “trial” in s. 577(1) which assures the accused the right to be present “during the whole of his trial” will be liberally construed to afford the accused the right to be present during the selection of the jury. In like manner, the word “trial” in s. 566 which denies the prosecutor the right to direct a juror to stand by on the trial of an indictment for the publication of a defamatory libel will be interpreted to embrace the proceedings preceding the empanelling of the jury. In other sections “trial” may have a different connotation depending upon the section of the Code being applied.

[19] In my view, the modern phenomenon in criminal proceedings of hearing a number of pre-trial Motions before a jury is selected, is part of “the trial” for purposes of s. 475. Otherwise, the pre-trial motions (and the eventual trial of the merits) could be defeated by an accused who successfully “absconds” during the pre-trial Motions. In any event, s. 551.1 applies to the pre-trial Motions relating to the “first murder,” on which Osman has been charged. That power to appoint a “case management judge” was enacted in 2011, as part of an entirely new Part XVIII.1 of the Criminal Code. The provisions of this new Part repeatedly refer to the role of the “case management judge” as “promoting a fair and efficient trial” at an early stage, “before the stage of the presentation of the evidence on the merits,” and state that when ruling at the pre-trial stage “he or she is doing so at trial.” These provisions make it clear that the “case management judge” can continue and become “the judge who hears the evidence on the merits” and that the “case management judge, as a trial judge, exercises the powers that a trial judge has before that stage in order to assist in promoting a fair and efficient trial.” These provisions also make it clear that when a “case management judge” hears pre-trial Motions, without hearing the evidence on the merits, “the trial … shall proceed continuously” [emphasis added]. I am satisfied that the legislative intent was to make the pre-rial Motions part of “the trial.” See: LeSage and Code, Report of the Review of Large and Complex Criminal Case Procedures, Queen’s Printer for Ontario 2008, at pp. 58-67. In this regard, Mr. Russomanno did not suggest that the pre-trial “case management judge” cannot exercise s. 475 powers.

[20] For all the above reasons, I allowed the Crown’s Motion seeking a finding that Osman “absconded” during the pre-trial motions relating to the “first murder”.

C. THE MOTION RELATING TO THE IDENTITY OF THREE VICTIM WITNESSES

[21] The first scheduled Motion was brought by the Crown on May 25, 2021. The Crown sought various orders, pursuant to ss. 486.31 and 486.5, protecting the identities of three bystanders who witnessed certain aspects of the “first murder” and who were wounded by stray bullets as they fled from the scene of the shooting. Similar orders were made at the preliminary inquiry. The proposed Orders were not opposed by defence counsel. The three victims are referred to by their initials in six counts of the Indictment alleging that Khiar discharged a firearm contrary to s. 244.2(1)(b), and that he committed aggravated assault contrary to s. 268.

[22] The facts relating to the “first murder” are summarized in my earlier Reasons relating to Osman’s severance Motion. See: R. v. Khiar, supra at paras. 3-10. In brief summary, the two accused and two female friends had spent some part of the evening of Canada Day, July 1, 2018, drinking on a patio in the Kensington Market area of downtown Toronto. They left the patio and were walking south on the east sidewalk of Augusta Avenue at around 10:20 p.m. when they were approached by the deceased Marcel Teme. The two accused stopped and spoke briefly with Teme. This conversation escalated into an altercation during which Khiar drew a loaded handgun and fired four shots at Teme, while Osman wrestled Teme to the ground. Khiar then fired four more shots at Teme while he was lying on the ground. All eight shots were fired quickly, within about 1.6 seconds. Three of the shots hit Teme, resulting in his death. The video surveillance evidence shows numerous young pedestrians walking on Augusta Avenue that evening. The three victim witnesses were all near the shooting and they were all injured by three gun shots when they turned and fled to the north.

[23] The Orders requested by the Crown would allow these three witnesses to testify using their initials (Mr. G., Mr. Y., and Mr. B.), would require the Court and the parties and the media to refer to them by these initials, would seal their full names in an exhibit envelope at the time when they are either affirmed or sworn, and would prohibit any photographing or sketching of the three witnesses. The draft Order that I approved is found at TAB 10 of the Application Record.

[24] I was satisfied that the proposed Orders were “in the interest of the proper administration of justice,” balancing the statutory and constitutional factors set out in the case law and in ss. 486.31(3) and 486.5(7). See: Dagenais v. C.B.C. (1994), 1994 39 (SCC), 94 C.C.C. (3d) 289 (S.C.C.); R. v. Mentuck (2001), 2001 SCC 76, 158 C.C.C. (3d) 449 (S.C.C.). In particular, the following factors were relevant in this case:

• The proposed Orders were consented to by all parties;

• The proposed Orders were on notice to the media, in accordance with the Court’s protocol, and there were no objections from the media;

• The three witnesses were entirely innocent bystanders who were not involved in the altercation in any way and who expressed some fear about testifying and being identified in the media;

• The facts of the case involved a brazen, frightening, and very public shooting that caused death;

• Counsel are aware of the three witnesses’ full identities;

• The media will be able to publish the three witnesses’ entire evidence; and

• The jury will be cautioned not to draw any adverse inference from the Orders allowing the witnesses to testify using only their initials, as required by s. 486.31(4).

[25] I discussed the wording of the above jury caution with counsel and the following was agreed to:

The three civilian victim witnesses in this case sought the consent of counsel and the Court to be identified by their initials, rather than their full names. All counsel have consented to their request and the Court has so ordered. The purpose of this Order is to limit publicity in the media of the identities of the bystanders who will testify and no adverse inference whatsoever should be drawn from the Court’s Order.

[26] For all the above reasons, the Crown’s Motion seeking various Orders relating to the identities of the three victim witnesses was allowed.

D. THE MOTION CONCERNING “AFTER THE FACT” CONDUCT

[27] The second scheduled Motion was brought by the Crown on May 25, 2021. It concerns the admissibility of a substantial body of evidence characterized by the parties as “after the fact” conduct. This evidence can be divided into two broad categories: the conduct of the two accused in the immediate aftermath of the July 1, 2018 shooting in Kensington Market; and the conduct of the accused some seven months later, on February 8, 2019, when they met at an apartment in Mississauga where Khiar was apparently residing. It is the latter of these two categories of evidence that is the most contentious.

[28] Beginning with the first and least contentious of the above two bodies of evidence, there is no dispute that Khiar and Osman both fled from the scene of the shooting on Augusta Avenue. They were captured on various video surveillance cameras running away from the area. In addition, there is a body of circumstantial evidence capable of inferring that they initially fled in a car driven by Osman until that car was involved in an accident. The strength of these circumstantial inferences is disputed but the relevance and admissibility of this body of evidence is realistically conceded by both Mr. Forte and Mr. Russomanno, on behalf of their clients. I summarized it as follows in my Reasons on the severance Motion (R. v. Khiar, supra at paras. 7-9):

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 [it is now admitted that Khiar is the man in blue and Osman is the man in white].

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 [this man’s criminal history will not be admissible at trial]. 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.

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.

[29] In addition to the above evidence of flight and abandonment of the rental car immediately after the shooting, there is video surveillance evidence showing Khiar returning later that evening to an apartment building at 15 La Rose Avenue in Mississauga. There is evidence that Khiar was staying there, in Unit 404, together with his family. The video surveillance evidence at the building, showing Khiar leaving the building at 8:12 p.m. (about two hours before the shooting) and returning at 11:22 p.m. (about one hour after the shooting) is the subject of Khiar’s s. 8 Charter Motion, which I will address below. Its relevance to this larger body of “after the fact” conduct evidence is that Khiar initially attempted unsuccessfully to enter the building through a side “exit only” door, he then entered through the front lobby doors, he had apparently discarded the blue long-sleeved top that he was wearing at the time of the shooting (he was now wearing only a black sleeveless undershirt), and he walked towards a stairwell and did not use the elevators to return to the fourth floor unit. The police executed a search warrant on that unit 12 days later, on July 13, 2018, and could not find the blue top, the gun used in the shooting, or the cell phone used by Khiar that evening. Khiar’s jeans and black sleeveless undershirt (worn at the time of the shooting under the blue top, and at the time of Khiar’s return to 15 La Rose Avenue) were found in the washing machine.

[30] I am satisfied that this entire body of evidence relating to events shortly after the July 1, 2018 shooting is admissible, although it has somewhat different uses in relation to the two accused. Osman is not alleged to be a party to the murder of Marcel Teme but he is alleged to be an accessory after the fact. The evidence capable of inferring that Osman drove the alleged principal Khiar away from the scene of the shooting “constitutes the actus reus” of the “alleged crime itself,” as Mr. Russomanno put it. I agree with this concession concerning one potential use of one part of this larger body of evidence. Section 23 of the Criminal Code requires the Crown to prove that an accessory carried out some act of receiving, comforting, or assisting the principal. Driving Khiar away from the scene of the shooting in the Chevy Cruze could constitute that act. However, all this evidence is also relevant to Osman’s state of mind. In this regard, his flight from the scene, his apparent directing of the two women to separate from him, his attempts to hide or cover his face with his shirt, and his apparent abandonment of the Chevy Cruze after it was involved in an accident can all be assessed by the trier of fact in determining whether Osman believed his own and Khiar’s conduct to be unlawful. Similarly, Khiar’s flight from the scene, his apparent abandonment of the Chevy Cruze, his apparent disposal of the blue top, gun, and cell phone, and his apparent attempts to return to his residence without using the front lobby doors or the elevators, can all be assessed by the trier of fact in determining whether Khiar believed his conduct was unlawful. In particular, this body of evidence can be used by the Crown to rebut potential defences such as self-defence (by Khiar) or lack of knowledge that the principal had committed an offence (by Osman). See: R. v. Calnen (2019), 2019 SCC 6, 374 C.C.C. (3d) 259 at paras. 108, 112, and 114 (S.C.C.); R. v. Smith (2016), 2016 ONCA 25, 333 C.C.C. (3d) 534 at paras. 76-8 (Ont. C.A.); R. v. Rodgerson (2014), 2014 ONCA 366, 309 C.C.C. (3d) 535 at paras. 50-54 (Ont. C.A.), aff’d (2015), 2015 SCC 38, 327 C.C.C. (3d) 287 at paras. 20 and 27 (S.C.C.); R. v. Peavoy (1997), 1997 3028 (ON CA), 117 C.C.C. (3d) 226 at paras. 31-34 (Ont. C.A.); R. v. White and Coté (1998), 1998 789 (SCC), 125 C.C.C. (3d) 385 at para. 19 (S.C.C.).

[31] As the above line of authority makes clear, this body of “after the fact” conduct evidence is capable of inferring that the two accused knew that the shooting of Teme was unlawful (i.e. they knew that Khiar was not acting in self-defence and that, at a minimum, he had committed an “unlawful act” manslaughter). However, it does not assist in inferring their knowledge as to the particular level of unlawfulness (i.e. whether they knew or believed it was murder, as opposed to manslaughter). As Weiler J.A. (Doherty and Moldaver JJ.A. concurring) put it in R. v. Peavoy, supra at paras. 31-34:

The conduct of an accused person after the event in issue may also, depending on the circumstances of the case, have some evidentiary value in rebutting defences put forward by an accused which are based on an alleged absence of the required culpable mental state: R. v. Wiltse, supra, at p. 384 (honest but mistaken belief deceased was already dead); R. v. Jenkins (1996), 1996 2065 (ON CA), 29 O.R. (3d) 30 at p. 63, 107 C.C.C. (3d) 440 (Ont. C.A.) (unaware caused injury to the deceased), leave to appeal to the Supreme Court refused February 27, 1997; R. v. Carpenter (1993), 1993 8591 (ON CA), 83 C.C.C. (3d) 193 (Ont. C.A.); R. v. Mulligan, a decision of this court released May 29, 1997 at p. 16, (intoxication) [reported 1997 995 (ON CA), 115 C.C.C. (3d) 559 at p. 569], and; R. v. Jacquard (1997), 1997 374 (SCC), 113 C.C.C. (3d) 1(S.C.C.) (mental disorder). In these cases, the after- the-fact conduct is potentially relevant because it is circumstantial evidence with respect to the accused's state of mind. In other words the conduct is not consistent with the actions of a person who had the state of mind now alleged at trial. If the accused's explanation of the after-the-fact conduct is rejected by the jury, it is evidence from which an inference may be drawn that the accused person did have the requisite cognitive mental state, or level of mental awareness, to commit the crime alleged.

I turn now to the application of these principles in this case. Where, as here, the accused is charged with second degree murder, evidence of after-the-fact conduct is equally consistent with the accused having committed manslaughter as it is with murder. Accordingly, as the after-the-fact conduct does not make it more likely that murder was committed as opposed to manslaughter, it cannot be used as proof of intent to commit murder.

This is not to say that the after-the-fact evidence was not relevant and had no application. Unlike the situation in Arcangioli, supra, the appellant did not admit culpability for any act. Given the appellant's admission that he had stabbed Mr. George, the after-the-fact circumstantial evidence had no relevance with respect to the commission of the physical act. Although the appellant admitted to stabbing the deceased, he did not admit that he had committed any culpable act but testified that he had acted in self-defence. In these circumstances, the after-the-fact conduct was some evidence from which, along with other evidence, the jury could infer that the appellant was aware he had committed a culpable act and had not acted in self-defence. If the jury concluded that the appellant had committed a culpable homicide, the evidence could not be used as evidence that the appellant intended to commit murder as opposed to manslaughter [italics in the original].

[32] Mr. Forte fairly conceded, on behalf of Khiar, that this body of evidence could be used by the trier of fact to infer “unlawful act” and to rebut self-defence, but not to infer the requisite mens rea for murder. I agree with Mr. Forte’s position on this point, as did Ms. Humphrey on behalf of the Crown. I doubt that the mens rea for murder will be a serious issue at trial. Nevertheless, the trial judge should instruct the jury that the evidence of “after the fact” conduct has no probative value in relation to whether Khiar had the mens rea for murder. Similarly, when considering the case against Osman, the jury should be reminded that manslaughter is a lesser included offence in the charge of murder and that Osman’s “after the fact” conduct is relevant only to his knowledge or belief that, at a minimum, Khiar had committed an “unlawful act” manslaughter.

[33] This issue concerning the relevance of “after the fact” conduct to the mens rea for murder, may have to be re-visited, either by me as the “case management” judge or by the judge who presides over the trial on the merits. As noted in my Reasons on the severance Motion (R. v. Khiar, supra at paras. 20 and 31), counsel for Khiar are exploring a possible psychiatric defence related to PTSD and diminished capacity. An expert assessment is presently being obtained. If this defence is pursued, the “after the fact” conduct may become relevant to rebutting any evidence of diminished capacity. As the Court noted in R. v. Peavoy, supra at para. 34:

However, because the defence contended that the Crown had not proven the requisite intent for murder due to the appellant's drinking throughout the day and at the time of the killing, the after-the-fact conduct could be used in support of the inference that, despite the appellant's intoxication, he had sufficient awareness to have formed the requisite intent for murder. The evidence suggested a relatively high level of cognitive functioning and purposeful conduct which could be viewed as antithetical to intoxication [emphasis added].

[34] Turning to the more contentious second body of “after the fact” conduct evidence, the positions of the parties evolved somewhat during the hearing of the Motion. The relevant background to Khiar’s meeting with Osman on February 8, 2019, some seven months after the shooting, is not disputed. It concerns Khiar’s continued or ongoing flight from the authorities. On July 13, 2018, twelve days after the shooting, the police obtained a Canada-wide arrest warrant for Khiar, they issued a Press Release with Khiar’s photo, and there was resulting media coverage. On the night of that same day, the police executed a search warrant at the La Rose Avenue apartment where Khiar’s mother resided. Some of Khiar’s personal effects were found in this apartment where he appeared to have returned shortly after the shooting on the evening of July 1, 2018. Khiar was no longer present when the search warrant was executed. It is unclear where Khiar resided during the following six months, from July to December 2018. The next evidence concerning his whereabouts is that he resided in an apartment located at 1 Elm Street in Mississauga during January and early February 2019. This is where he appears to have been residing at the time of the February 8, 2019 meeting with Osman. Finally, there is evidence that Khiar moved to an apartment located at 330 Burnhamthorpe Road in Mississauga on or about February 15, 2019. This is where he was residing at the time of his arrest on February 20, 2019. A friend had arranged for him to reside at these new premises at 330 Burnhamthorpe Road. Upon his arrest, Khiar was found in personal possession of a loaded handgun and three cell phones. In the Burnhamthorpe Road apartment and in the car in which Khiar was arrested with an associate, the police found a large quantity of fentanyl, heroin, and crack cocaine as well as $15,000 in cash, two more handguns, a large amount of ammunition, and various gun parts. Counsel appear to be confident that they can reach agreement on editing out all this evidence of extrinsic criminal conduct relating to Khiar’s arrest on February 20, 2019.

[35] As I understood Mr. Forte’s position, he concedes the admissibility of this body of evidence to the effect that Khiar “evaded police for more than seven months before his arrest,” that he “moved between at least two different addresses while he remained at large,” and that on one of these occasions he had a friend “arrange for his lodgings.” In my view, this non-contentious background to the February 8, 2019 meeting between Khiar and Osman can be characterized as evidence of Khiar’s ongoing flight. Its relevance and admissibility is no different than the first body of “after the fact” conduct evidence, analysed above, concerning Khiar’s and Osman’s immediate flight from the scene of the shooting on July 1, 2018. If anything, the evidence of ongoing flight during the following seven month period, after issuance of a publicized arrest warrant, has greater probative value as evidence capable of inferring Khiar’s knowledge or belief that he had acted unlawfully on July 1, 2018. During this seven month period of ongoing flight it can be inferred that Khiar was no longer subject to any immediate panic and that he had time to reflect. Of course, the trial judge will give the jury all the normal cautions about evidence of “after the fact” conduct and will explain both the permissible uses of this evidence and the fact that there is no legal duty to surrender, once an arrest warrant has been issued. I assume that most, if not all of the above relevant background evidence to the February 8, 2019 meeting between Osman and Khiar can be tendered in the form of an Agreed Statement of Fact. The fact that Khiar is alleged to have committed the “second murder” at a bar on Queen Street East in downtown Toronto during the early morning hours of February 8, 2019 is obviously not included in this body of relevant “after the fact” conduct evidence. Evidence relating to this incident is completely inadmissible at the “first murder” trial, unless the defence somehow raises the issue.

[36] The last remaining part of the “after the fact” conduct evidence concerns the February 8, 2019 meeting between Khiar and Osman at the Elm Street apartment in Mississauga. The Crown advanced two alternative positions concerning the admissibility of this evidence. In my view, the only part of this evidence that is admissible relates to the Crown’s secondary position.

[37] The Crown’s initial or primary position, set out in its Factum, was that all the evidence surrounding this meeting was admissible and that its use was to infer that, “Osman was assisting and supporting his friend during this illicit meeting for the purpose of allowing Khiar to continue to avoid detection by police” [emphasis added]. The Crown’s evidence relating to the meeting and its surrounding circumstances is video surveillance from the Elm Street building and from another building on Rugby Road in Mississauga. When all this evidence is viewed together, the following can be inferred: an unknown third-party male departed from the building on Rugby Road at 2:49 a.m. on February 8, 2019; this third party was counting money in the elevator as he departed; twenty minutes later, at 3:10 a.m., the third party arrived at the Elm Street building and was let in by Khiar; the third party was not carrying a bag upon arrival at the Elm Street building; over two hours later, at 5:30 a.m., Khiar, Osman, and the third party all entered the elevator on the 30^th floor of the Elm Street building (Khiar’s alleged residence at the time was on the 30^th floor); the third party was now carrying a relatively large blue duffel bag; there is no surveillance evidence indicating when or how Osman had arrived at the Elm Street building at some unknown earlier time; the three men exited the front lobby of the Elm Street building at 5:31 a.m. and walked to a dark car parked in the driveway at the front of the building; the third party appeared to place the blue duffel bag in the trunk of the dark car and he drove away in this car a few minutes later; before the third party drove away, Osman entered both the front passenger side of the dark car and the rear passenger side, appearing to look for something; after Osman emerged from the dark car, he hugged or embraced Khiar and they shook hands; Osman then walked away towards a white car that had just pulled up in the driveway; Osman now appeared to be carrying some object in his hand; Osman entered the rear seat of the white car and was driven away by someone.

[38] This entire episode is suspicious and it might provide some basis to support the Crown’s characterization of the events as an “illicit meeting” in which Osman was “assisting and supporting” Khiar, in some unknown fashion. However, during the course of oral argument, Ms. Humphrey wisely conceded that the evidence was too weak to reasonably infer this alleged act of ongoing assistance, by Osman towards Khiar on February 8, 2019. In other words, the Crown conceded that the actus reus of the s.23 offence occurred only on July 1, 2018, when Osman allegedly assisted Khiar in his immediate flight from the scene of the shooting, and there was insufficient proof of some further ongoing actus reus on February 8, 2019.

[39] Once this concession was made, the Crown advanced only an alternative or secondary position, namely, that the meeting provided evidence of the character of Osman’s and Khiar’s relationship, namely, one of ongoing loyalty and friendship at a time when Khiar was still at large and was wanted by the police for the July 1, 2018 homicide. The Crown submitted that this alleged “after the fact” character of the relationship provided evidence of motive that would assist in proving the mens rea for the s.23 offence, namely, that Osman’s “purpose” when he allegedly drove Khiar away from the scene of the shooting on July 1, 2018 was to enable a good friend and associate to escape.

[40] Both defence counsel strenuously opposed the Crown’s initial proposed use of this evidence concerning the February 8, 2019 meeting, submitting that it associated the accused with some unknown extrinsic criminal activity and that it had minimal probative value in relation to the alleged actus reus of the s.23 offence. I agree with the defence on this point and Ms. Humphrey, as set out above, wisely resiled from the Crown’s initial proposed use of the evidence. In response to the Crown’s alternative and more modest position, the defence submitted that Osman and Khiar’s apparent friendliness and association some seven months after the July 1, 2018 shooting had minimal probative value in relation to Osman’s state of mind at the time of the alleged s.23 offence and that there was still a great deal of prejudice (in the sense of bad character evidence) surrounding the February 8, 2019 meeting.

[41] I asked Ms. Humphrey to consider whether the entire body of evidence relating to the February 8, 2019 meeting was amenable to editing, in order to remove the suspicious surrounding circumstances and focus solely on the contact between Osman and Khiar. I then heard further argument on the last day of the nine-day hearing of pre-trial Motions (on June 4, 2021), when Ms. Humphrey filed an edited version of the proposed evidence (Exhibits 6 and 7 on the Motion). This edited version of the evidence relating to the events of February 8, 2019, completely removed the suspicious third party who can be seen counting money, prior to his arrival, who arrived without any bag, and who then left Khiar’s apartment with a relatively large blue duffel bag. It also removed Osman’s suspicious activities, entering the front seat and back seat areas of the third party’s car while apparently looking for something, and then walking away to another car with something in his hand. Instead, the edited evidence focused on the fact of Khiar’s association with the Elm Street residence in January and early February, 2019, the fact that Osman can be seen apparently leaving the residence with Khiar at 5:30 a.m. on February 8, 2019, and their embrace and handshake while standing at the car outside. This edited evidence can be presented in the form of a short and simple proposed Agreed Statement of Fact that does not appear to be contentious and that attaches five still images from the video surveillance showing only Osman and Khiar together in the elevator, in the lobby, and outside at the car. A short cropped video clip shows them embracing and shaking hands at the car.

[42] In my view, the edited version of the February 8, 2019 meeting between Khiar and Osman has legitimate probative value in relation to Osman’s state of mind at the time of the alleged s.23 offence on July 1, 2018. That legitimate probative value is not outweighed by any prejudicial effect, once the prejudicial surrounding circumstances have been edited in the manner summarized above.

[43] In relation to the probative value of this evidence, there is no serious dispute that the February 8, 2019 meeting legitimately infers that Osman and Khiar remained friendly associates over seven months after the July 1, 2018 shooting, even though Khiar was now wanted for the alleged murder of Marcel Teme. The defence submits that there is already evidence of their friendly relationship, given that they spent about 90 minutes together walking, talking, and drinking in Kensington Market on the evening of the shooting. In my view, their continued friendly association after the shooting, after Teme had died, after a warrant issued alleging that Khiar had murdered Teme, and while Khiar was still at large, is far more probative of the strength of their friendship and loyalty and is far more probative of Osman’s motive for allegedly driving Khiar away from the scene of the shooting. As explained in my Reasons on the severance Motion (R. v. Khiar, supra at para. 23), proving the mens rea for the s.23 offence is likely to be the most important issue at trial in relation to Osman. His ongoing loyalty to Khiar, even after it can be inferred that he likely knew that Khiar was wanted for murder, provides important evidence of his intentions when he allegedly helped Khiar on July 1, 2018.

[44] In terms of prejudicial effect, the Crown’s proposed editing of this body of evidence (in the form of Exhibits 6 and 7 on the Motion) has the effect of removing the prejudicial suggestions of extrinsic criminal activity and bad character. The suspicious third party has been completely removed and Osman’s suspicious activities in the third party’s parked car, after which he walked away with some unknown object in his hand, have also been removed. What is left is the fact that Osman met with Khiar in the early morning hours, at Khiar’s apparent new residence in Mississauga, and they embraced and shook hands when parting. None of these activities infer bad character or extrinsic criminality. Counsel tried to suggest that meeting at 5:30 a.m. is suspicious. I disagree. Many people get up and go to work at 5:30 a.m. and many people simply stay up all night. What is relevant about the time and place of the meeting, in my view, is that Khiar appears to have recently moved to the Elm Street apartment in Mississauga and Osman somehow knew how to find him, inferring that they were likely in communication with each other.

[45] In my view, the above editing of this “after the fact” conduct evidence conforms to basic principles of evidence law relating to editing. Those principles are that irrelevant parts, and any parts where legitimate probative value is outweighed by prejudicial effect, should be edited provided that the editing does not distort the meaning of what remains. See: R. v. Beatty (1944), 1944 22 (SCC), 81 C.C.C. 1 (S.C.C.); R. v. Alward and Mooney (1977), 1977 166 (SCC), 35 C.C.C. (2d) 392 at 396 (S.C.C.); R. v. Otis (1978), 1978 2350 (ON CA), 39 C.C.C. (2d) 304 at 307-9 (Ont. C.A.); R. v. C.(F.) (1996), 1996 623 (ON CA), 104 C.C.C. (3d) 461 at 472-3 (Ont. C.A.); R. v. L.(L.) (2009), 2009 ONCA 413, 244 C.C.C. (3d) 149 at 152-5 (Ont. C.A.).

[46] In the present case, what remains after the editing is the fact of an apparently friendly meeting between the two accused, at Khiar’s apartment in the early morning hours and at a time when he was at large and was wanted for murder. None of these remaining unedited facts distort the truth. In this regard, the case bears some resemblance to the facts of R. v. Backhouse (2005), 2005 4937 (ON CA), 194 C.C.C. (3d) 1 at paras. 156-172 (Ont. C.A.). In that case, the Crown sought to prove that the accused was in possession of the gun used in a murder some ten months after the murder. This ongoing possession of the murder weapon, even some time after the offence, had legitimate probative value and was admissible in order to infer possession of the gun at the earlier time. However, the fact that the accused also used the gun on this subsequent occasion in a second shooting was highly prejudicial. Rosenberg J.A., speaking for the Court, held that the fact of ongoing possession of the gun (at the time of the second shooting) was admissible but all the surrounding evidence relating to the use of the gun on that subsequent occasion had to be edited out as it was impermissibly prejudicial. By a parity of reasoning, the fact of Osman’s ongoing loyalty and friendship towards Khiar when they met seven months after the alleged murder is admissible to infer loyalty and friendship at the earlier time. However, the surrounding evidence relating to some apparently suspicious purpose for their subsequent meeting is not admissible. Of course, if the defence wants to open the door and elicit evidence about the purpose of this meeting at the Elm Street apartment, they are entitled to. However, the Crown cannot open up this issue and the trial judge should instruct the jury that the only legitimate use of the evidence concerning the February 8, 2019 meeting is to infer ongoing loyalty and friendship between Osman and Khiar, after the alleged murder of Teme was publicly known and after Khiar was wanted for murder, and to relate that evidence concerning their ongoing relationship to Osman’s intent at the time of the earlier alleged s.23 offence.

[47] For all the above reasons, certain parts of the evidence of “after the fact” conduct are admissible for certain limited purposes, as explained above.

E. THE s. 11(B) CHARTER MOTION BROUGHT BY OSMAN

[48] The third scheduled Motion was brought by Osman, alleging a violation of his s. 11(b) Charter right to trial within a reasonable time. Ms. Schofield argued this Motion on behalf of Osman and it was heard on May 26, 2021.

[49] As set out above, Khiar had been arrested and charged with the “first murder” on February 20, 2019. He was also charged with the “second murder” at that time and the two separate cases began to proceed through the courts. Osman was not identified and charged with being an accessory after to the “first murder” until May 28, 2019, when a warrant was issued for his arrest. He was not arrested on that warrant until September 19, 2019. The five week jury trial of Khiar and Osman in relation to the “first murder” is scheduled to proceed from April 11 to May 13, 2022.

[50] There is a preliminary issue on the s. 11(b) Motion concerning the date when the 30 month Jordan presumptive ceiling for delay commences. If it commences on the date when the Information was first sworn and the arrest warrant issued (May 28, 2019), then the total delay until the anticipated end of the trial (May 13, 2022) is 35 months and 16 days. If it commences on the date when Osman was arrested and first brought before the courts (September 19, 2019), then the total delay is 31 months and 23 days. It can be seen that in either case the total delay is over the 30 month Jordan presumptive ceiling. See: R. v. Jordan (2016), 2016 SCC 27, 335 C.C.C. (3d) 403 (S.C.C.).

[51] The law is settled that s. 11(b) of the Charter is engaged in relation to an accused from the point in time when “an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn.” This starting point is driven mainly by the text of s. 11 of the Charter, which accords all the rights in that section to “any person charged with an offence”, but it is also supported by policy considerations relating to difficulties that would arise if s. 11 was used as a mechanism to regulate the timing of police investigations. See: R. v. Kalanj (1989), 1989 63 (SCC), 48 C.C.C. (3d) 459 (S.C.C.). The rights provided by s. 11(b) continue to be engaged until the accused has been sentenced. This end point is driven by the textual meaning of “charged” and “tried” and by the individual and societal interests protected by s. 11(b). See: R. v. MacDougall (1998), 1998 763 (SCC), 128 C.C.C. (3d) 483 (S.C.C.). In light of these authorities, there is no question that Osman’s s. 11(b) rights became engaged on May 28, 2019 when he was “charged” with being an accessory to murder.

[52] However, the Supreme Court recently clarified that the 30 month Jordan presumptive ceiling does not “cover the entire period of time to which s. 11(b) applies.” In R. v. K.G.K. (2020), 2020 SCC 7, 61 C.R. (7^th) 233 at paras. 30-50 (S.C.C.), the Court held that verdict deliberation time is protected by s. 11(b) of the Charter but it falls outside the Jordan presumptive ceiling framework:

… the mere fact that s. 11(b) encompasses verdict deliberation time does not lead inexorably to the conclusion that this time is included in the Jordan ceilings. On the contrary, as will become apparent, the presumptive ceilings established in Jordan were not intended to cover the entire period of time to which s. 11(b) applies.

While Jordan states that the presumptive ceilings apply “from the charge to the actual or anticipated end of trial”, the Court did not explicitly define the phrase “end of trial”. It has been suggested that this phrase permits of four possible interpretations: (1) the end of the evidence and argument; (2) the date the verdict is delivered, excluding post‑trial motions; (3) the conclusion of post‑trial motions; or (4) the date of sentencing (see A.F., at para. 131). On close analysis, it is the first interpretation that accurately reflects the reasoning underlying Jordan and the mischief it sought to address. To be precise, the Jordan ceilings apply from the charge to the end of the evidence and argument, and no further.

Importantly, the Jordan ceilings were not designed to exhaust the s. 11(b) analysis and cover all sources of delay. To the contrary, the ceilings represented a specific solution designed to address a specific problem: the culture of complacency towards excessive delay associated with “bringing those charged with criminal offences to trial” (Jordan, at para. 2; see also paras. 4, 13, 117, 121 and 129).

There is no suggestion here, nor was there any suggestion in Jordan, that delay arising from verdict deliberation time contributes to the systemic problem that Jordan sought to address. As indicated (at para. 35), Jordan was squarely focused on delay in bringing accused persons to trial and that is the scope of its application.

The Jordan decision itself makes this limited temporal scope apparent. For one, the Court expressly declined to comment on whether the Jordan ceilings applied from the date of the charge through the date of the sentence, notwithstanding this Court’s holding in MacDougall that s. 11(b) extends to sentence. Specifically, the Court stated that “[t]he issue of delay in sentencing ... is not before us, and we make no comment about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases” (para. 49, fn. 2). Additionally, the guidance this Court offered to address the culture of complacency focussed almost exclusively on trial practice and procedure. For the Crown, the Jordan framework “clarifie[d] the content of the Crown’s ever‑present constitutional obligation to bring the accused to trial within a reasonable time” (para. 112). It also “encourage[d] the defence to be part of the solution” by deducting defence‑caused delay from the total delay at the outset, and by requiring the defence to demonstrate that it had taken “meaningful and sustained steps to expedite the proceedings as a prerequisite to a stay” in cases falling below the presumptive ceiling (para. 113).

While Jordan recognized that the judiciary had a role to play in addressing the culture of complacency, there was no suggestion that judicial deliberation time was contributing to that culture. Instead, Jordan called upon the courts to change “courtroom culture” by implementing more efficient trial procedures including scheduling practices, reviewing case management regimes, and making reasonable efforts to control and manage the conduct of trials (paras. 114 and 139; see also R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 (S.C.C.), at paras. 37‑39).

That the focus in Jordan was directed not at delay attributable to verdict deliberation time but delay in bringing accused persons to trial is borne out when one considers the host of practical problems that would arise if the presumptive ceilings were to include the date on which a verdict might be rendered. As I will explain, including verdict deliberation time within the presumptive ceilings would run counter to Jordan’s goals of clarity and predictability, and likely prove unworkable in practice.

[53] Applying the above reasoning from K.G.K., it could be argued that police delays in executing arrest warrants were not part of the “culture of complacency focused almost exclusively on trial practice and procedure,” which is what the 30 month Jordan presumptive ceiling was intended to address. It could also be argued that there are “a host of practical problems” involved in using the Jordan ceilings as a tool to oversee the timing of police arrests. Finally, it could be argued that the accused’s s. 11(b) liberty and security of the person interests are not engaged prior to arrest, assuming the accused is unaware of the charges.

[54] On the other hand, the language of Jordan may have been ambiguous as to the end date of the 30 month ceiling (“end of trial”) but it was clear as to the start date (“from the charge”). This unambiguous description of the starting point was repeatedly used in both Jordan and in K.G.K., strongly suggesting that the Jordan ceilings begin to run at the same point in time when s. 11(b) becomes engaged, namely, when the Information is sworn and the accused is charged. There are also sound policy reasons for presumptively requiring the police to carry out arrests in a timely way. In particular, fair trial rights can be impaired when the accused does not know that a charge has been laid and is, therefore, unable to preserve evidence while the events are still fresh. Finally, where good explanations exist for delaying an arrest, the Jordan framework can accommodate these cases by deducting delays caused either by actions of the accused or by the complexity of the case, as will be explained below.

[55] For all these reasons, I am satisfied that the 30 month Jordan presumptive ceiling commenced on May 28, 2019 when the Information was sworn and the total delay in this case is, therefore, 35 months and 16 days. I am also satisfied that the four month delay in arresting Osman should not be deducted. Ms. Schofield fairly conceded that when an accused has gone into hiding or is actively evading arrest, these kinds of delays in effecting an arrest should be deducted as “defence delay.” A somewhat analogous situation arose in R. v. Burke (2018), 2018 ONCA 594, 47 C.R. (7^th) 282 (Ont. C.A.), where the accused had been arrested and charged in Ontario and was released on bail. He fled to the United States, changed his identity, was arrested on U.S. charges, and ended up serving a lengthy U.S. sentence before he was eventually returned to Canada to face the now historical Ontario chares. The Court of Appeal held that “all of the delay caused by the respondent’s flight in violation of his bail conditions should be treated as defence delay”:

The respondent admitted to Toronto police that his express purpose in fleeing was to avoid capture and prosecution. The terms of his bail required he remain within the jurisdiction.

The delay from the time the charges were laid until the time the respondent was returned to Canada was illegitimate defence delay. It was caused directly by the respondent, whose actions were not taken to respond to the charges, but were intended to frustrate them.

[56] There is no evidence that Osman was in hiding or was actively evading the police. Indeed, he was already on bail on other outstanding charges in the Ottawa area, and the Toronto Homicide Squad officers were aware of his recognizance on these pre-existing charges. Ms. Jackson advised the Court that she could not disclose the reasons for what appears to have been a deliberate police decision to delay Osman’s arrest. I infer that there may have been some ongoing police investigation but the Crown has decided to keep the matter confidential. The suspicious evidence discovered by the police relating to Osman’s and Khiar’s activities during the early morning hours of February 8, 2019, and the further evidence discovered upon Khiar’s arrest on February 20, 2019, (all of which is summarized above when analyzing the “after the fact” conduct Motion), tends to support the suggestion that there may have been an ongoing investigation. However, on the present state of the record before me, the reason for this initial four month period of delay in arresting Osman has been kept confidential and it should not be deducted, either as “defence delay” or as being due to some investigative “case complexity”.

[57] Once Osman was arrested on September 19, 2019, and was brought before the Ontario Court of Justice in Toronto, the matter moved expeditiously. By the time of Osman’s appearance on October 11, 2019, “a large amount of disclosure” was available and defence counsel appears to have been retained. A judicial pre-trial was held on October 31, 2019, together with Khiar. A preliminary inquiry had already been scheduled by Khiar for dates in January 2020. Osman’s counsel of choice, Mr. Russomanno, was already booked on a number of other matters in January 2020. Ms. Humphrey and Mr. Russomanno proceeded to work together, with commendable professionalism, in order to schedule those witnesses that were important to Osman’s interests on two dates in late January 2020 when Mr. Russomanno could make himself available and could attend and participate in Khiar’s preliminary inquiry. Osman and Khiar were still charged separately at this point but the Crown had advised Mr. Russomanno of its intention to prefer a direct Indictment, joining the two accused in the Superior Court after Khiar’s anticipated committal. By allowing Osman to participate in Khiar’s preliminary inquiry, Osman had the benefit of discovering the Crown’s witnesses prior to the direct Indictment being preferred.

[58] After Khiar’s committal for trial, all five counsel acting for the Crown and for the two accused communicated by email in late January and early February, in order to agree on trial dates when they would all be available. It appears from these emails that all counsel had busy schedules and trial dates in “the spring of 2021” were targeted. After Osman’s outstanding charges in the Ottawa area were resolved in his favour, he applied for bail in Toronto in the Superior Court. On February 14, 2020, Akhtar J. denied bail. See: R. v. Osman, 2020 ONSC 965. On March 6, 2020, Mr. Russomanno advised the Ontario Court of Justice that a JPT was held that day in the Superior Court, that they were anticipating a direct Indictment, and that “we have already blocked time for an eight week trial” in April 2021.

[59] The direct Indictment was preferred by the Deputy Attorney General on May 13, 2020, joining Osman and Khiar. This date was just under 12 months after Osman had been charged. By this point, the Covid-19 pandemic was underway and Superior Court trials had been suspended. One week later, all counsel appeared by teleconference before McMahon J., on May 22, 2020 for a further JPT. The targeted eight week trial date was confirmed, starting on April 19, 2021 before a judge and jury. In addition, there was discussion about a possible re-election to trial by judge alone. Mr. Russomanno advised that he had instructions from Osman to re-elect, that a re-election would “significantly” shorten the trial, and that they were now awaiting a decision as to whether Khiar was “prepared to re-elect.” A list of judges available to try the case judge alone was circulated and counsel were to advise of “five agreeable judges.” McMahon J. agreed that “we’ll have another JPT” to discuss the re-election issue.

[60] On June 4, 2020, Goldstein J. granted Osman bail. See: R. v. Osman, 2020 ONSC 3472. At this point, Osman had been in pre-trial custody for almost nine months. The terms of release were strict, requiring “house arrest” with few exceptions as well as electronic monitoring. The discussions between counsel about a potential re-election to trial by judge alone continued during the summer of 2020. On July 27, 2020, Ms. Humphrey requested a decision from Khiar on this issue because it “takes some time to obtain the consent of the AG for a re-election.” Counsel for Khiar responded that same day and advised that they now had “instructions from Mr. Khiar, we will be proceeding as elected with a judge and jury.” Mr. Russomanno requested a further JPT, now that “we have the election confirmed” and the earlier discussions about a re-election had been rendered “moot.” In a September 28, 2020 email, Mr. Russomanno suggested that severance of Osman and Attorney-General consent to trying him by judge alone should be discussed at the further JPT. He asserted that “the bulk of the evidence relates to Mr. Khiar,” “the bulk of the pre-trial motions relate to Mr. Khiar,” and that “many more admissions could be made” by Osman that would result in a severed trial taking “half the time currently allotted.” He expressed concern about further delays of jury trials due to the pandemic. Ms. Humphrey agreed to request a further JPT, advising that the “old Covid-19 protocols are changing,” that they have been “working hard in Toronto trying to get the jury trials and the judge alone trials on,” and that everyone is “insanely busy.”

[61] While these discussions between counsel were going on in the summer and fall of 2020, the Crown consented to three successive bail variations, loosening Osman’s “house arrest” terms. On July 30, 2020, a new exception to “house arrest” was added allowing Osman to attend the Brampton Mosque on Fridays. On September 18, 2020, another new exception was added to the “house arrest” term, allowing Osman to attend a construction job training program in North York on week days. On December 18, 2020, two new exceptions were added to the “house arrest” term, allowing Osman to “attend work” each day between 6:00 a.m. and 8:00 p.m. and allowing him to be away from the Brampton residence “in the presence of one or more of his sureties” between 6:00 a.m. and 10:00 p.m.

[62] The further discussions between counsel and with McMahon J. at ongoing JPTs in the fall of 2020 led to Mr. Russomanno filing Osman’s Motion seeking severance on December 11, 2020. I was appointed case management judge on December 17, 2020 and I heard the severance Motion on January 6, 2021. I adjourned the Motion to March 19, 2021, on the basis that it was premature, and made various case management orders. See: R. v. Khiar, supra. When the Motion resumed on March 19, 2021, the Crown advised that the Attorney General would not consent pursuant to s. 473(1) to Osman’s proposed re-election at a severed trial. Accordingly, the severance Motion became academic and it was dismissed. In the meantime, the Chief Justice had issued a further directive on January 13, 2021, extending the suspension of jury trials until May 3, 2021 “at the earliest.” As a result, the April 19, 2021 trial date could not proceed and it was adjourned to the present trial date, April 11, 2022, although it was now scheduled as a shorter five week jury trial (rather than the previous eight week jury trial). The parties also agreed to schedule the present pre-trial Motions before me during late May and early June 2021, to be heard virtually over Zoom.

[63] One final development was that the Crown consented to a fourth bail variation on March 19, 2021. This final variation entirely removed the “house arrest” term, removed the residential sureties in Brampton, removed the electronic monitoring term, and allowed Osman to change his residence on notice to the police (as explained above when discussing the “absconding” Motion).

[64] I have not set out the circumstances relating to Osman’s severance Motion and the Attorney General’s refusal to consent to a severed trial by judge alone, in any great detail in the above paragraphs. It is these most recent developments on which the s. 11(b) Motion depends, and I will analyse them in greater detail below. It can be seen from the above history that the April 19, 2021 trial date was confirmed and scheduled by the Court on May 22, 2020, during the Covid-19 pandemic. Had the Court been able to proceed as scheduled on April 19, 2021, with a joint jury trial of both Khiar and Osman, the total delay since the Information charging Osman was sworn on May 28, 2019 would have been just over 24 months (until the anticipated end of the trial on June 11, 2021). Ms. Schofield properly conceded that “the Applicant would have been tried within a reasonable time,” had the joint jury trial proceeded as scheduled on April 19, 2021. Indeed, this first trial date was only 19 months after Osman’s arrest on September 19, 2019, which indicates that the courts and counsel had moved with considerable expedition in a case that involved both an alleged principal and an accessory to murder. Ms. Schofield further conceded that the Covid-19 pandemic, which was undoubtedly the immediate cause of the April 19, 2021 trial date being adjourned, is a “discrete exceptional event” that would ordinarily be deducted from the total delay in the case. The effect of such a deduction would bring the relevant delay below 30 months.

[65] In light of the above concessions, it can be seen that the only issue on the s. 11(b) Motion is whether the Crown’s refusal to consent to a judge alone trial, which rendered the severance Motion moot, constituted a failure to “mitigate” what would otherwise have been an “exceptional circumstance.” As the Court held in R. v. Jordan, supra at para. 75:

The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26 (S.C.C.)). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). [Emphasis added].

Ms. Schofield submits that a careful analysis of the particular circumstances in this case ought reasonably to have led the Crown to consent to a judge alone trial, and would have led the Court to grant severance, in order to mitigate the delays caused by the Covid-19 pandemic. Had these steps been taken, Osman’s severed trial arguably could have proceeded before a judge alone on April 19, 2021.

[66] I agree with Ms. Schofield’s concession that the Covid-19 pandemic is a “discrete exceptional event.” I recently set out an analysis of this issue, citing the leading Ontario authorities, in R. v. Obregon-Castro, 2021 ONSC 1096 at paras. 38-42. I adopt that analysis for purposes of these Reasons. See also: R. v. Khattra, 2020 ONSC 7894. As a result, the almost 13 month period of delay from April 19, 2021 (when the initially scheduled trial failed to proceed) until May 13, 2022 (when the trial is now anticipated to end) should be deducted from the total delay (subject to the duty to mitigate which I will discuss below). The resulting net delay, if this deduction is made, would be between 22 and 23 months. Ms. Schofield did not submit that net delay below the presumptive 30 month ceiling would violate s. 11(b) in this case. Her argument rests entirely on the alleged failure to take reasonable steps to mitigate the delay caused by the “discrete exceptional event.” Had those steps been taken, the further 13 month period of delay would never have occurred. As a result, she submits that none of that delay should be deducted from the total delay.

[67] Ms. Schofield agreed that the reasonableness of the Crown’s decision to deny consent to a judge alone trial had to be assessed in the context of determining whether severance was in “the interest of justice” in this case. I agree with Ms. Schofield that the two issues are intertwined. In my view, the Crown’s decision-making also has to be assessed in the context of the way in which the case evolved in the last six months, since I was appointed as the “case management judge.” Mr. Russomanno’s efforts to obtain the Attorney General’s consent to a severed trial by judge alone relied heavily on three assertions set out in his September 29, 2020 email to Ms. Humphrey, which were repeated before me in submissions at the January 6, 2021 hearing of Osman’s severance Motion: that “the bulk of the evidence relates to Mr. Khiar”; that “the bulk of the pre-trial motions relate to Mr. Khiar”; and that “many more admissions could be made” by Osman that would significantly shorten a severed trial by judge alone. As I put it in my Reasons adjourning the severance Motion to March 19, 2021 (R. v. Khiar, supra at paras. 25 and 26):

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).

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 [citations omitted].

[68] The above summarized circumstances and assertions made by counsel were sympathetic to Osman’s argument in favour of severance. However, after I made a number of case management Orders on January 6, 2021, and after McMahon J. conducted a number of further JPTs, the circumstances that emerged when the severance Motion resumed before me on March 19, 2021 were much less sympathetic. As the present six pre-trial Motions proceeded before me, it has become even more clear that severance is not in “the interests of justice,” as required by s. 591(3), and that the Attorney General’s decision to deny consent pursuant to s. 473(1) was reasonable.

[69] There are a number of developments that lead to the above conclusion. First, Khiar’s approach to the case has changed. By March 19, 2021, he had made a significant admission, acknowledging his identity as the larger man in the blue top who fired the eight shots that caused Marcel Teme’s death. This admission has both shortened the evidence required at trial and has led Khiar’s counsel to abandon a number of the previously identified pre-trial Motions. Some other potential pre-trial Motions were also abandoned after counsel for Khiar wisely re-assessed their merits. In the result, Khiar filed only one pre-trial Motion (the s. 8 Charter Motion) and it took one day to argue. Second, the two most difficult and lengthy pre-trial Motions, concerning “after the fact” conduct and expert opinion evidence, were brought by the Crown and they applied to both Khiar and Osman. Counsel for Osman and Khiar both contested the admissibility of these two important bodies of Crown evidence. Third, the suggested admissions that would shorten a severed judge alone trial of Osman did not materialize. Osman does not admit that he was the driver of the Chevy Cruze, he does not admit that Khiar was the passenger in the Chevy Cruze, and he does not admit that he pushed Teme before Khiar fired the loaded handgun (as described by the victim witness Mr. B.). As a result, Ms. Schofield ultimately had to concede that the Crown may have to call its entire case twice, if there were two severed trials.

[70] As a result of the above developments, the scheduled trial time this spring was used to complete all the pre-trial Motions (in late May and early June 2021) and the remaining trial of the merits scheduled in April 2022 was shortened to five weeks. Most importantly, that scheduled joint trial would become two duplicate trials totalling ten weeks, if severance was granted. In addition, the two central factual issues in dispute at trial will require the trier of fact to determine what happened during the escalating altercation between the two accused and Marcel Teme on Augusta Avenue (relating to Khiar’s potential self-defence and provocation defences) and will have to determine whether Osman and Khiar fled in the Chevy Cruze and, if so, under what circumstances (relating to Osman’s “purpose” in allegedly aiding Khiar). The only parties who were present at the time of these two events are Osman and Khiar. As I put it in my Reasons adjourning the severance Motion (R. v. Khiar, supra at para. 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 heard together 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 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.

[71] It can be seen that the factors favouring severance, and consent to a trial by judge alone for Osman, have weakened in the last six months and the factors favouring a joint trial have strengthened. Although a joint jury trial inevitably resulted in additional delay for Osman, he was out of custody at the time and the Crown took significant steps to reduce the prejudice to his s. 11(b) liberty interests by consenting to four bail variations that removed his “house arrest” term, removed his electronic monitoring term, removed his residential sureties, and allowed him to move back to his family’s home in the Ottawa area. In addition, the Crown successfully negotiated a significant admission from Khiar, and some additional admissions from both accused. Finally, the Crown made good use of the appointment of a case management judge by filing its three pre-trial Motions and completing argument of all the pre-trial Motions well in advance of trial. These latter steps significantly shortened the trial and were both recommended in R. v. Jordan, supra at para. 70, as delay mitigating tools:

It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay. [italics in the original, underlining added].

In my view, the Crown has taken a number of reasonable steps to mitigate the delay caused by the pandemic.

[72] In all the above circumstances, the decision to deny consent to a severed trial by judge alone was reasonable. On March 19, 2021, in open court, Ms. Humphrey carefully explained six considerations that the Attorney General took into account in declining to exercise the s. 473(1) consent power: first, the effect of the admissions and lack of admissions was that “all the same witnesses would have to be called with regard to both cases”; second, “the trauma that the victims of this shooting would have to go through in having to testify twice about one of the more traumatic experiences of their entire life, having been shot at and feeling that their life was in danger”; third, “trial efficiency” and “resourcing issues” involved in conducting two severed trials in a murder case, and the implications this might have for all the other pending murder cases in the pandemic backlog; fourth, the “truth-seeking function of this trial is much better served by the trier of fact having all the evidence heard together relating to the overlapping factual and legal issues”; fifth, the new trial date in April 2022 would be just under 31 months from the date of Osman’s arrest and first appearance in court in September 2019, in terms of the effects of joinder on Osman’s s. 11(b) rights; and sixth, the Crown’s commitment to doing “everything possible to alleviate, as best we can, any hardship to Mr. Osman”, including giving consent to “another bail variation”. When Attorney-General powers in the Criminal Code are exercised, or not exercised, there has previously been some history in this country of not putting any reasons on the record. See, e.g. R. v. Ng (2003), 2003 ABCA 1, 173 C.C.C. (3d) 349 (Alta. C.A.); R. v. Effert (2011), 2011 ABCA 134, 276 C.C.C. (3d) 487 (Alta. C.A.). By having the Crown explain the above reasoning underlying the Attorney-General’s decision, in open court, the present process of reviewing its reasonableness in the context of a s. 11(b) Motion is enhanced.

[73] For all the above reasons, I am satisfied that the Crown carried out its duty “to mitigate the delay” caused by “a discrete exceptional event”, namely, the suspension of jury trials in Toronto during the Covid-19 pandemic. As a result, the almost 13 months of delay caused by that “discrete exceptional event” should be deducted from the 35 months and 16 days of total delay. The net delay of between 22 and 23 months is below the 30 month presumptive ceiling and does not violate Osman’s s. 11(b) Charter rights.

[74] In light of the above conclusion, I need not consider Ms. Jackson’s alternative submissions, namely, that the delay in setting the new April 2022 trial date is “defence delay” because that new date was determined by defence counsel’s unavailability on earlier dates. There is no doubt that all five counsel in this case were and are very busy and their calendars tended to determine the proposed trial dates, which the Court would then accept when setting trial dates. There is also no doubt that counsel for Khiar are representing Khiar at a serious firearms and drug trafficking trial that commences on February 14, 2022 (arising out of the seizures made at the time of Khiar’s arrest on February 20, 2019). In addition, counsel for Osman advised the Court at the time of the January 6, 2021 severance Motion that he would not be available until April 2022, if the April 2021 trial date was adjourned. It is apparent, in all these circumstances, that counsel’s unavailability played a significant role in the scheduling of the new trial date. However, it also appears that the Court and the Crown never formally “offered” earlier available dates, in order to assess whether counsel could rearrange their calendars and give this case priority. See, e.g. R. v. Mallozzi (2018), 2018 ONCA 312, 407 C.R.R. (2d) 266 (Ont. C.A.). In my view, the better way to analyse this issue, concerning the challenges involved when setting dates in cases with co-accused, where the calendars of five busy counsel have to be accommodated, is to treat it as a factor relating to “case complexity”. See, e.g. R. v. Gopie (2017), 2017 ONCA 728, 356 C.C.C. (3d) 36 at paras. 169-171 (Ont. C.A.). However, I need not decide this issue, given my conclusion set out above that the delay caused by the Covid-19 pandemic was reasonably mitigated and should be deduced from the total delay.

[75] One further issue that I need not address is the effect of Osman having “absconded” from the hearing of the pre-trial Motions, a few days after I had reserved judgment on his s. 11(b) Motion. I asked if there were any further submissions relating to this issue, after I had made a finding under s. 475 that Osman had “absconded”. As noted above, s. 475(2) enacts a discretionary statutory power to draw an “adverse inference” from such a finding. It may be that one such “adverse inference” is that an accused who “absconds” has implicitly waived his s. 11(b) Charter right to trial within a reasonable time, at least until such time as he attorns to the jurisdiction of the Court. It would arguably cause harm to the repute of the administration of justice if a s. 11(b) Motion was considered at a time when the accused had “absconded”. It is also unknown, at present, whether Osman’s decision to “abscond” (at a time when the total delay in the present case is still below the 30 month presumptive ceiling), will cause some further delay in the proceedings. Since I received no further submissions on these points, I will not make any findings as to the effect of “absconding” on s. 11(b) Charter rights.

[76] For all these reasons, Osman’s s. 11(b) Charter Motion is dismissed.

F. THE s. 8 CHARTER MOTION BROUGHT BY KHIAR

[77] The fourth scheduled Motion, heard on June 2, 2021 in Osman’s absence, was Khiar’s s. 8 Charter Motion. It seeks to exclude certain video surveillance evidence taken by cameras in the common areas of the La Rose Avenue apartment building. These images depict Khiar returning to the building after the July 1, 2018 shooting in Kensington Market. I have previously summarized this evidence in the context of the “after the fact” conduct Motion. In particular, it shows Khiar attempting unsuccessfully to enter the building through a side exit door, then entering through the front lobby doors, and then proceeding past the elevators towards a stairwell. He was no longer wearing the long-sleeved blue top that he wore earlier in the evening when he left the building and at the time of the shooting. The police obtained this video surveillance evidence without a warrant but with the consent of building management. The s. 8 issue is the validity of that consent and whether a warrant was required.

[78] The evidence on the Motion that relates to this s. 8 issue came from two main sources. First, the two seizing officers testified at the preliminary inquiry and Transcripts of their evidence were filed on the Motion. Second, the building manager (Hayley Smuts) who gave consent to the seizure provided an Affidavit that was tendered by the Crown and she was cross-examined on the Motion. I will summarize the police evidence first and will then summarize Ms. Smuts’ evidence.

[79] Det. Cst. Devine was one of the Homicide Squad officers investigating the Augusta Avenue shooting that occurred on July 1, 2018. From reviewing a large quantity of Kensington Market video surveillance evidence, the police identified the man in the long-sleeved blue top as their prime suspect. They had surveillance images of him arriving on Augusta Avenue in a Beck taxi at about 8:36 p.m. that evening. They were also able to learn that the taxi had picked this man up at 15 La Rose Avenue. In addition, the police had identified Khiar’s fingerprints on the exterior of the abandoned Chevy Cruze and they learned that Khiar was associated with the 15 La Rose Avenue address. Based on all this information, Det. Cst. Devine and Det. Cst. Thayalan attended at the 15 La Rose Avenue building on separate occasions on July 12, 2018, in order to examine and seize any video surveillance images and related information about the man who took the Beck taxi on July 1, 2018.

[80] Det. Cst. Thayalan attended at the La Rose Avenue building at 9:00 a.m. and spoke to the property manager, Hayley Smuts, who was in her office. It was apparent from the monitors in the property management office that there were video surveillance cameras in the building. The cameras were also “quite obvious” in locations on the exterior of the building and in the interior lobby, as Det. Cst. Thayalan could see their “white domes” mounted on the ceiling. He gave Ms. Smuts his Toronto Police Homicide Squad card and told her that he was conducting a “criminal investigation”, but without providing “specific details of the investigation”. He did not tell her whether the matter under investigation had occurred inside or outside the La Rose Avenue building. He inquired about the video surveillance footage and she gave him permission “to access the DVRs and download footage”. She stood beside him while he reviewed the footage that was of interest to the police.

[81] Det. Cst. Thayalan “set up the download of the video” that was of interest to the investigation and then Det. Cst. Devine attended later that same morning, at 11:41 a.m., in order to pick up two USB keys containing the requested video surveillance footage. Det. Cst. Devine also obtained information from Ms. Smuts about the residents of Unit 404. The owner was Zubeyda Ibrahim and two other persons were named as residents on the paperwork, namely, her “son” Ahmed Khiar and her “daughter” Suzan Khiar. The accused Ibrahim Khiar was not listed as a resident in Unit 404. Det. Cst. Devine told Ms. Smuts that the police were “investigating an occurrence that had happened on July 1^st.” She also indicated that it was the above unit that was of interest but she did not tell Ms. Smuts whether the occurrence had taken place inside or outside the building. Finally, Det. Cst. Devine requested a fob from Ms. Smuts, in order to access the building later that evening when the police intended to execute a search warrant on Unit 404. Ms. Smuts provided Det. Cst. Devine with the fob, as well as the two USB keys containing the video surveillance footage previously requested by Det. Cst. Thayalan. The exterior door to the front of the building was unlocked and open to the public, when the police attended, but once inside the front door foyer there was a further interior door that gave access to the front lobby. It was locked and a fob was required in order to enter.

[82] The police records of the two USB keys picked up by Det. Cst. Devine on July 12, 2018 indicate that all of this seized video footage related to only one date, namely, July 1^st, 2018 (see Exhibit 8). After picking up these two USB keys, Det. Cst. Devine and Det. Cst. Thayalan attended again at the 15 La Rose Avenue building later in the evening of July 12, 2018, in order to execute a search warrant on Unit 404 in the early morning hours of July 13, 2018. There is no challenge to the lawfulness of this search warrant. Certain items were seized from Unit 404 that relate to Khiar.

[83] Det. Cst. Thayalan re-attended at the 15 La Rose Avenue building a week later, on July 19, 2018. This time he requested and seized video surveillance footage relating to June 26, 2018, that is, five days prior to the shooting. By this point, the police had obtained an arrest warrant for Khiar (on July 13, 2018) and had issued a Press Release that same day announcing that Khiar was wanted for the alleged murder on July 1, 2018. Accordingly, by the time of Det. Cst. Thayalan’s second meeting with Ms. Smuts, on July 19, 2018, “there were no secrets at that point” and he told her that their investigation related to Khiar and to the alleged murder set out in the Press Release.

[84] Hayley Smuts testified on the s. 8 Motion. She was employed by Malvern Condominium Property Management and she worked as the building manager at 15 La Rose Avenue in July 2018. It was a 20-floor condominium building with about 250 to 300 residents. The building had about 25 video surveillance cameras located at the front and back entrances (both exterior and interior), in the front lobby, in the elevators, in the common rooms, and in the parking garage. The cameras were visible as they hung down from the ceilings. Her office was on the ground floor, just past the fob entry point at the front interior lobby door. There were video monitors in her office showing the footage from the surveillance cameras. The one fob entry point to the building was at the front interior lobby door. There was also a “digital concierge” at this point that allowed visitors to access residents by way of an intercom and to then be admitted to the interior of the building. There were no further fob entry points inside the common areas of the building. There were no security guards at the building. The condominium Board of Directors at each building would decide whether to hire security guards or whether the surveillance cameras provided sufficient security. Ms. Smuts’ company only provided building management services. All decisions were made by the elected Board on behalf of the condominium owners. Each building had its own by-laws but, generally, only residents, guests, and invitees were allowed in the building.

[85] Ms. Smuts testified that the purpose of the surveillance cameras was to protect the security and safety of the residents, and not to monitor their movements. There were “privacy protocols” in place, based on discussions with the Board. She identified the Malvern Condominium Property Management “Privacy Policy” (see Exhibit 7C). It provided as follows:

Malvern Condominium Property Management is committed to protecting your privacy. We collect your personal information only when you, or your agents, specifically and knowingly provide it to us. This information is only used for the purposes of carrying out the duties of a Condominium, as required by the Condominium Act and other pertinent legislation and documentation. Information will be retained as long as necessary for fulfillment of those duties. Information will not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual or as required by law.

Appropriate safeguards are in place to ensure that personal information remains private. If requested, an individual will be informed of the existence, use and disclosure of their personal information, and will be given access to that information. The information will be kept accurate, complete and up-to-date as required. An individual has the right to have inaccurate information amended where necessary by providing the correct information in writing to the company.

[86] Ms. Smuts understood the above “Privacy Policy” to allow for the disclosure of “personal information” in only three circumstances: “with the consent of the individual”; “as required by law”; and “for the purposes of carrying out the duties of a Condominium, as required by the Condominium Act.” In the present case, the first two purposes did not apply. She did not have consent from the individual involved. She also understood that she was not “required by law” to produce the relevant surveillance video because the police did not have a search warrant or production order. She believed that the police request in this case properly fell within the third purpose because it related to the safety and security of the condominium residents, and that was part of her duties under the Condominium Act. She agreed that helping the police to investigate a crime that was not related to the safety and security of the residents would be outside her duties, in which case she would have refused the police request and would have insisted that they obtain a warrant.

[87] Ms. Smuts testified that she spoke to both Det. Cst. Thayalan and Det. Cst. Devine about their investigation. She did not have any notes of her meetings or phone calls with them and these events took place almost three years ago. She wrote a “management report” afterwards to her employer but it was no longer in her possession and she had not reviewed it. She recalled that the officers were from the Toronto Homicide Squad and she assumed that they were investigating a homicide. She also recalled being told that they believed the suspect in the investigation had entered 15 La Rose Avenue. She was not given any further specifics about the investigation. She did not believe that the homicide had occurred inside the building. Rather, the police needed the surveillance video in order to determine whether the suspect had entered the building. She also recalled that the police believed that the suspect might enter again. She was sure that it was a homicide that the two officers were investigating and she believed that releasing the video was necessary to secure the safety of the residents.

[88] Ms. Smuts also recalled that on July 12, 2018, Det. Cst. Thayalan asked her to show him video surveillance “from around the time of July 1, 2018.” He told her that the offence under investigation occurred on Canada Day. He started to review the video, asking for particular cameras, which Ms. Smuts would then provide. She never left him alone. After this initial period of viewing the surveillance footage, Det. Cst. Thayalan provided Ms. Smuts with a USB key and they began downloading the requested video. He left before the downloading process was completed. She finished the task after he had left. She inferred that the matter under investigation was a homicide that had occurred on July 1, 2018. The purpose for requesting and providing the video was to identify the suspect who had entered the building. She was not aware of the identity of this suspect.

[89] Later in the afternoon on July 12, 2018, Det. Cst. Devine picked up the USB keys with the downloaded video surveillance. After Det. Cst. Devine left, Ms. Smuts sent her an email stating, “Please feel free to contact me if there is anything else you need for this investigation.” (see Exhibit 6). There had been prior police investigations at the 15 La Rose Avenue building but this was the only time that Ms. Smuts had become involved and had provided video surveillance. She testified that the residents were aware of the security cameras in the common areas and were aware that footage from these cameras was being monitored from the building manager’s office.

[90] Ms. Smuts believed that Det. Cst. Thayalan attended at her building on two subsequent occasions, in order to seize more video surveillance. She believed these two further occasions were on July 19 and August 9, 2018. Once again she had no notes of these further meetings and she had little recall of them. She did recall that Det. Cst. Thayalan provided her with a Press Release and a photo of the suspect named Khiar. She believed this was during the July 19, 2018 visit. She did not recognize Khiar and did not know him as a resident. She was unsure which surveillance dates were viewed and seized by the police on these two subsequent occasions. She believed they also related to July 1, 2018 but she had agreed to help with “the investigation”, in order to identify the suspect who had entered the building, and had not limited the police to July 1, 2018.

[91] The Crown seeks to tender three brief clips from the video surveillance footage seized on July 12, 2018, pursuant to the above consent from Ms. Smuts. All three of these video clips were recorded on July 1, 2018. They are as follows:

• At 8:10 p.m., Khiar is shown wearing the long-sleeved blue top while emerging from the elevator in the ground floor lobby and walking towards the hall that leads to the foyer at the front door;

• At 8:12 p.m., Khiar is shown coming down the hall from the elevator lobby and exiting the building through the front door foyer, while wearing the blue top;

• Between 11:21 p.m. and 11:22 p.m., Khiar is shown no longer wearing the blue top and attempting unsuccessfully to enter the building through a door marked “exit only” at the east side of the building, and then entering successfully through the front door foyer, and then walking down the hallway leading to the elevator lobby, but then walking past the elevator towards a stairwell.

[92] There are two features of these three clips that are noteworthy. First, their content is focused narrowly on Khiar when he is leaving the building about two hours before the 10:20 p.m. shooting and then returning to the building about one hour after the shooting. In other words, they depict his movements, his clothing, and the timing of his movements when leaving and returning to the building. Second, the cameras that capture these images are located in the least private common areas in and around the building. In two of the images, he is depicted while outside the building and while approaching the exterior doors. In two further images, he is depicted inside the publicly accessible front door foyer, while both leaving and returning. The most private images are those depicting him walking to and from the fob-controlled interior lobby door and to and from the elevator lobby. These latter images are taken from the camera located in the front door foyer and the camera located in the elevator lobby. All of the cameras used to take all of the images are located on the ground floor and are in those common areas, both inside and outside the building, that would be frequented by everyone who leaves and arrives at the building (whether residents or non-residents).

[93] The law relating to s. 8 privacy interests in the common areas of condominium buildings has been clarified by two important decisions of the Ontario Court of Appeal, decided in 2017 and 2019. The Court had previously held, in 2009, that there was no reasonable expectation of privacy in the parking garages of multi-unit buildings and that management could consent to police entry, given the numbers of residents and non-residents who use these common areas and given the lack of control exercised by individual unit holders. See: R. v. Drakes (2009), 2009 ONCA 560, 252 O.A.C. 200 (C.A.). The two more recent decisions, in 2017 and 2019, extended this analysis to other common areas within multi-unit buildings.

[94] In the 2017 case, R. v. Saciragic (2017), 136 W.C.B. (2d) 363 (Ont. C.A.), the police had the accused under surveillance until his car entered the parking garage of an apartment complex. After 23 minutes, the car emerged from the parking garage and drove to a meeting with the occupant of another car. The accused was observed giving the occupant of the other car a small box. Upon the arrest of these two parties, the small box was found to contain one kilo of cocaine. The police then attended at the apartment complex and sought information from the property manager as to the unit that the accused had entered during the 23-minute period when he was at the complex, immediately prior to the one kilo cocaine transaction. The property manager did not give the police direct access to the building’s video surveillance footage. Instead, he provided the police with information from the building’s key fob system and from a review of the video surveillance. This information was to the effect that the unit accessed by the accused during the 23-minute period was Unit 1107. A subsequent search of this unit, with a warrant, resulted in the seizure of nine kilos of cocaine. The s. 8 issue at trial and on appeal was whether the accused had a reasonable expectation of privacy in the information provided to the police by the property manager.

[95] The Court in R. v. Saciragic, supra at paras. 28-34, held that there was no reasonable expectation of privacy in the information provided to the police. In particular, the Court relied on the nature of the information seized and on the circumstances surrounding video surveillance of the common areas of large multi-unit buildings:

… from a review of video surveillance, someone matching the appellant’s description on one occasion attended the 11^th floor of the apartment complex from the elevator, exited, and then re-entered the elevator. Here, no intimate details of the appellant’s life were revealed by the provision of the information that, on a single occasion, the appellant exited and re-entered the elevator at the 11^th floor. This information did not yield any information about the nature of the appellant’s activities in unit 1107, or even whether he used unit 1107 as a residence …

A physical address does not, of itself, reveal intimate details about one’s personal choices or way of life, and, ordinarily, it is publicly available information to which many people have access.

Neither, on the record before the Court, were there particular circumstances that would indicate a reasonable expectation of privacy in the appellant’s connection to unit 1107. The appellant made use of an apartment unit in a relatively large apartment complex with common areas and video surveillance. There was no evidence to suggest a reasonable expectation that his comings and goings would not be observed by others or recorded digitally, or the fact of these observations divulged to police.

In summary, I would hold that the trial judge made no error on the facts before her in concluding that the appellant had no reasonable expectation of privacy in the fob data, the fact that the appellant attended at the 11^th floor, or the ultimate information that the police were able to conclude from this data: the appellant’s use of unit 1107. [Emphasis added].

[96] Two years after Saciragic, the Court decided R. v. Yu et al (2019), 2019 ONCA 942, 383 C.C.C. (3d) 260 (Ont. C.A.). There were two s. 8 issues in the case, both relating to privacy interests in common areas of multi-unit buildings: first, whether the property manager could consent to police officers entering the hallways in order to conduct surveillance; and second, whether the property manager could consent to the police installing secret video surveillance cameras in the hallways. Although these two issues differ somewhat from the issue in the present case, the Court’s reasoning in relation to both issues provides considerable assistance.

[97] In relation to the first issue, the Court in R. v. Yu et al, supra at paras. 81-102, held that there was a relatively low expectation of privacy in the hallways of large multi-unit buildings and that property management could give consent to police entries in order to conduct surveillance. The court reasoned as follows:

The level of expectation of privacy inside a condominium building will vary. The level of expectation of privacy is dependent on the likelihood that someone might enter a certain area of the building, and whether a person might reasonably expect a certain area to be subject to camera surveillance.

Some areas of condominium buildings are routinely accessed by all condominium residents, such as the parking garage or elevator lobby. The level of expectation of privacy in those areas is low, albeit remaining greater than would be expected outside of the building. The level of expectation of privacy increases the closer the area comes to a person’s residence, such as the end of a particular hallway of a particular floor of the building. Even in those less-frequented areas the level of expectation of privacy is low, but not as low as in the more commonly used areas.

A resident or occupant’s reasonable expectations surrounding camera surveillance in a condominium building depend on whether the cameras are visible, and whether the resident has been informed by the condominium management as to the location of any security cameras installed in the building. If there is no visible camera, and if the resident has been told that there are no security cameras, then residents are entitled to expect their movements are not subject to camera surveillance.

The only time that condominium residents should expect complete privacy is when they are inside their unit with the door closed. As soon as they open their door, or exit their unit, it is reasonable to expect that they may be observed, with that level of expectation increasing the closer they get to the main areas of the building or to any security cameras.

On balance, the factors listed above establish a low, but reasonable expectation of privacy in these common areas. The buildings had strict security features designed to exclude outsiders, and the condominium rules at Joe Shuster Way barred non-owners and non-occupants from accessing the common areas unless accompanied by an owner or occupant. It was thus reasonable for the appellants to believe that the buildings’ security systems would operate to exclude the police from entering the