COURT FILE NO.: CR-20-10000246-0000
DATE: 20220802
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
IBRAHIM KHIAR AND ABDULLAHI OSMAN
Applicants
Ms. Mary Humphrey and Ms. Elizabeth Jackson, for the Crown
Mr. Marco Forte and Mr. Marco Sciarra, counsel for the Defendant Ibrahim Khiar
Mr. Misha Feldmann, counsel for the Applicant Abdullahi Osman
HEARD: May 9, 2022
bawden j.
[1] Abdullahi Osman applied for a directed verdict on the charge of accessory after the fact to murder.
[2] There was evidence which would permit the jury to find the following:
a. Khiar, Osman and their two female companions were walking through Kensington Market at 10:20 pm when the deceased, Marcel Teme, approached them.
b. Teme spoke to Khiar and Osman for roughly a minute and said something which annoyed Osman. Osman shoved Teme, which prompted Khiar to step between the two men.
c. Osman stepped around Khiar and moved aggressively towards Teme.
d. Teme punched Osman in the face, causing Osman to fall backwards.
e. Khiar immediately produced a handgun and fired eight shots at Teme, hitting him twice in the torso. The last four shots were aimed at the chest of Teme while he was on the ground.
f. Osman witnessed the entire shooting. He and Khiar ran from the scene together after the last shot was fired.
g. Marcel Teme was obviously still alive when Khiar and Osman fled. His torso was raised off the ground and he was waving his arms. Osman turned to look at Teme as he ran.
h. Osman attempted to cover his face as he escaped the scene. He also directed the two women who had been present during the shooting to separate from himself and Khiar.
i. Osman ran to his car and got into the driver’s seat. Khiar joined him in the passenger seat. They drove out of Kensington Market but crashed into the back of another car at the nearby intersection of Dundas Street and Spadina Avenue.
j. Khiar got out of the car and continued to escape on foot. Osman followed him seconds later, abandoning the rented vehicle.
k. Marcel Teme died in hospital three days after the shooting. The cause of death was two gunshot wounds to the abdomen.
[3] In sum, the jury could reasonably have found that Osman assisted Khiar to escape the scene, knowing that Khiar had intended to kill Teme and that he had at least caused him serious bodily harm. Osman could not have known that Khiar had committed a murder at the time that he assisted him to escape because the victim would remain alive for another three days.
[4] Mr. Feldmann’s argument for a directed verdict rests upon the following statement of the law:
Until there is death, there can be no accessory after the fact of murder, although it may be possible that a person has been an accessory after the fact of another offence such as assault or assault with a weapon if those offences are charged against the accused. Simply put, until the victim has died there is not yet a homicide.
R. v. A.B., [1999] B.C.J. No. 1760 at para. 21
[5] The Crown did not seek to amend the indictment and concedes that Osman cannot be convicted of the offence charged. Ms. Humphrey argues, however, that he can be convicted of accessory after the fact to attempt murder or, alternatively, attempt accessory after the fact to murder.
[6] I granted the application and directed a verdict of acquittal. These are my reasons for doing so.
The Elements of Accessory After the Fact to Murder
[7] The essential elements of accessory after the fact to murder are set out in Watt’s Manual of Criminal Jury Instructions:
i. that Khiar committed the offence of murder;
ii. that Osman knew that Khiar committed murder;
iii. that Osman provided assistance to Khiar; and
iv. that Osman provided assistance for the purpose of helping Khiar to escape.
[8] The Ontario Court of Appeal described the knowledge requirement of accessory after the fact as “unambiguous” in Duong, 1998 CanLII 7124 (ON CA), [1998] O.J. No. 1681:
15 There is little Canadian case law dealing with the knowledge requirement in s. 23(1), perhaps because the language of s. 23(1) is unambiguous. In R. v. Vinette (1974), 1974 CanLII 165 (SCC), 19 C.C.C. (2d) 1 (S.C.C.), the accused was charged with being an accessory after the fact to manslaughter. Both the majority (per Pigeon J. at p. 7) and the dissent (per Laskin C.J.C. at pp. 2-3) accepted that the Crown had to prove that an accused charged with being an accessory after the fact to a homicide had knowledge of "the unlawful killing." Similarly, in R. v. A.(M.), released March 22, 1996, this court proceeded on the basis that knowledge of the offence committed by the person aided was an essential element of the charge of being an accessory after the fact.
[9] The court in Duong dismissed the Crown’s submission that this knowledge requirement placed an unsustainable burden on the Crown:
…I am not moved by the Crown’s further contention that the requirement that the Crown prove that the accessory had knowledge of the offence committed by the person aided will allow individuals to escape justice when they aid someone believing that person has committed crime “x” when in fact the person has committed crime “y”. If that is the effect of the present legislation, it is for parliament to decide whether the statutory prohibition should be expanded.
A charge laid under section 23(1) must allege the commission of a specific offence (or offences) and the Crown must prove that the alleged accessory knew that the person assisted was a party to that offence…
[10] Duong has been applied in A.B., [1999] B.C.J. No. 1760, Knott, [2006] O.J. No. 886 (SCJ), and Maadani, [2021] O.J. No. 7124 (SCJ). The defendants in Knott and Maadani were granted directed verdicts on the charge of accessory after the fact to murder in circumstances which were similar to the case at bar.
The Crown’s Position
[11] The Crown advances two arguments in support of the position that accessory after the fact to attempt murder should be left with the jury:
i. This court should follow the reasoning of the British Columbia Superior Court in R. v. Bedi, [2016] B.C.J. No. 2189 and find that accessory after the fact to attempt murder is an included offence of accessory after the fact to murder pursuant to section 662(1) of the Criminal Code; or
ii. This court should find that Osman committed the offence of accessory after the fact to attempt murder based on section 660 of the Criminal Code and the reasoning of the Supreme Court of Canada in Sarrazin.
The Decision in Bedi
[12] The facts in Bedi follow the same pattern as those in A.B., Knott, Maadani and the case at bar. The accused witnessed the acts of the perpetrator which allegedly constituted the offence of murder and then assisted the perpetrator to escape prior to the death of the victim.
[13] The trial judge in Bedi accepted that the accused could not be convicted of accessory after the fact to murder. The Crown submitted, however, that as a result of the decision of the Supreme Court of Canada in Sarrazin, 2011 SCC 54, the accused could be convicted of accessory after the fact to attempt murder because he had seen the perpetrator attempt to kill the victim and then assisted him to escape. Justice Schultes rejected that argument:
172 I do not think Sarrazin assists the Crown here. It does not hold that attempted murder is an included offence of murder. It holds that s. 660, which permits a conviction for any attempt to commit the full offence, makes the usual included offence analysis pursuant to the definitions of included offences provided from s. 662 of the Criminal Code unnecessary. This is not a case in which an attempt to commit the offence charged has been proven, thus engaging s. 660. It is a case in which the offence after which Mr. Bedi acted as an accessory had not yet been completed when he performed the particular act in question. That takes us back to the question of whether attempted murder is an included offence of murder so as to make the analogous reasoning in Webber applicable. Poole has not been directly overruled on this point, so if it is not distinguishable, I think I am precluded from finding that this incident constitutes the offence of being an accessory after the fact to attempted murder.
(Underlining Added)
[14] Having found that attempt murder is not an included offence of murder, Justice Schultes went on to consider whether accessory after the fact to attempted murder is an included offence under section 662(1) of the Code. Justice Schultes concluded that it is:
174 Reasoning by analogy from a decision of the Supreme Court of Canada in Luckett v. The Queen, 1980 CanLII 185 (SCC), [1980] 1S.C.R. 1140, our Court of Appeal in R. v. Soluk, 2001 BCCA 519, held that when the means by which the charged offence is not particularized to have been committed in a manner that does not require all of the offence of the proposed included offence, it is still sufficient if some but not all of the ways of committing that included offence would need to have been committed in the course of the charged offence. So in the present case, second degree murder includes the specific intent to cause death, which encompasses attempted murder, even though it also includes causing bodily harm that the accused knows is likely to cause death and he is reckless of whether death ensues. Under the Soluk analysis, attempted murder's availability as an included offence is not precluded because committing attempted murder with the required intent is one of the ways in which the enactment which creates second degree murder defines it.
175 I find this reasoning compelling and am satisfied it represents a principled route to finding an included offence that appears not to have been considered in Poole. While I am aware that the potential prejudice in Webber was minimized by the amendment to accessory after the fact to manslaughter before the evidence was called, I am satisfied that the combined effect of that decision and Soluk is to give Mr. Bedi sufficient notice of his liability as an accessory to this included offence.
176 Accordingly, I am satisfied beyond a reasonable doubt that this action on his part constituted the offence of accessory after the fact to attempted murder.
[15] The Crown urges me to adopt this reasoning. For the sake of clarity, I will set out my understanding of the court’s reasoning in Bedi:
a. Section 662(1) of the Code reads:
662 (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted
(a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or
(b) of an attempt to commit an offence so included.
b. In Soluk, the accused was charged with a general count of aggravated assault. The indictment did not specify whether the offence had been committed by wounding, maiming, disfiguring, or endangering the life of the victim. The issue on appeal was whether the accused could be convicted of assault causing bodily harm as an included offence of aggravated assault where the indictment did not specify how the offence had been committed. Relying on section 662 of the Code, the British Columbia Court of Appeal concluded that he could. Wounding, maiming, or disfiguring are all potential avenues for conviction of aggravated assault and the infliction of bodily harm is implicit to all three. An accused who is charged with an unparticularized count of aggravated assault would know that each of the four ways of committing the offence is alleged and would therefore be on notice that any necessary component of those avenues is also alleged. The Ontario Court of Appeal followed Soluk in Tenthorey, 2021 ONCA 324.
[16] With this review of Soluk in mind, I understand the ratio in Bedi to be as follows:
a. The perpetrator, Dhaliwal, was charged with second degree murder.
b. One means by which the Crown could prove the mens rea for murder was to prove that Dhaliwal meant to cause the victim’s death: section 229(a)(i)
c. Intention to kill is also the mens rea for attempted murder: Ancio 1984 CanLII 69 (SCC), [1984] 1 S.C.R 225, at page 249
d. The alleged accessory, Bedi, was a witness to the shooting and the Crown had proved beyond a reasonable doubt that Bedi knew that Dhaliwal intended to kill the victim: Bedi, at paras. 157-158.
e. Applying the reasoning in Soluk, Bedi was aware that one of the ways that the Crown could prove that Dhaliwal was guilty of murder was to prove that Dhaliwal intended to kill the victim. As a witness to the shooting, Bedi knew that Dhaliwal intended to kill the victim and Bedi was therefore on notice that he could be convicted of accessory after the fact to attempted murder through the operation of section 662(1) of the Code. The combined effect of the decisions in Webber and Soluk gave Bedi sufficient notice of his liability as an accessory to the included offence of attempt murder: Bedi, at para. 175.
Reasons for declining to follow Bedi
[17] I respectfully come to a different conclusion than the court in Bedi. In my view, the finding in Bedi cannot be reconciled with the decision of the Supreme Court of Canada in R. v. G.R., 2005 SCC 45. Moreover, it would be fundamentally unfair to say that Mr. Osman was on notice that he could be convicted of accessory after the fact to attempt murder in the circumstances of this case.
The Finding in G.R., 2005 SCC 45
[18] The Supreme Court of Canada considered section 662(1) of the Criminal Code in R. v. G.R., 2005 SCC 45. The accused in G.R. was charged with incest. The trial judge concluded that the accused had attempted to have sexual intercourse with his young daughter but had a doubt as to whether he had committed the complete offence and so convicted the accused of attempted incest. In the Court of Appeal, the Crown conceded that the accused could not be convicted of attempted incest but argued that because the accused knew that his daughter was under the age of 14, he could be convicted of sexual assault and sexual interference as included offences of incest. The Quebec Court of Appeal dismissed the Crown’s appeal and the Crown further appealed to the Supreme Court of Canada.
[19] Justice Binnie wrote the majority decision in the Supreme Court of Canada dismissing the Crown appeal. At the outset of his reasons, Justice Binnie observed that it is fundamental to a fair trial that an accused know the charge that he must meet. In many cases, the same set of facts may give rise to different offences and the accused is entitled to know which charge he is required to answer based on the face of the indictment: R. v. G.R. at para. 2, 13. The court relied upon the decision in R. v. Manuel in support of a strict interpretation of section 662(1) of the Criminal Code:
Further, to be an included offence the inclusion must form such an apparent and essential constituent of the offence charged that the accused in reading the offence charged will be fairly informed in every instance that he will have to meet not only the offence charged but also the specific offences to be included. Such apparent inclusion must appear from “the enactment creating” the offence or “from the offence as charged in the count”; either of those two may be considered under section 662(1) but not the opening by counsel or the evidence.
R. v. Manuel (1960), 1960 CanLII 522 (BC CA), 128 C.C.C. 383
Underlining in the original
[20] The court specifically rejected the argument that the knowledge of the accused or the facts of the case could inform the decision of whether there were included offences in the indictment:
The Crown says the evidence subsequently led in the case shows that commission of incest in this case would necessarily have involved the commission of sexual interference and a sexual assault due to the age of the daughter, and that the age of the daughter must have been within the knowledge of the respondent, but there is nothing in s. 662 that permits the Crown to supplement the allegations in the charge, or the elements of the enactment creating the offence, by reference to the personal knowledge of an accused.
R. v. G.R., at para. 40
[21] In Bedi, the accused was an eyewitness to the shooting and the court found as a fact that he knew that the principal intended to kill the victim: Bedi, at para. 157-158. The Crown argued that the court should find that accessory after the fact to attempt murder was an included offence because Bedi knew that the perpetrator of the murder had the specific intent to kill: Bedi, at para. 167. The court evidently accepted that submission, since Bedi could not have been found guilty of accessory after the fact to attempt murder on any account unless it was proven beyond a reasonable doubt that he knew that the shooter had the intent to kill described in section 229(a)(i). If Bedi had not observed the killing and was acting strictly on hearsay when he assisted the perpetrator to escape, there would be no basis to find him guilty of accessory after the fact to attempt murder. The availability of the included offence turned on the knowledge of the accused.
[22] In my view, this runs contrary to the decision in G.R. If accessory after the fact to attempt murder is an included offence pursuant to section 662(1), it is an included offence in every circumstance, not just cases where the accused is aware of certain facts by virtue of having been an eyewitness to the killing.
[23] The Crown makes the same argument in the case at bar. The Crown submits that Osman saw Khiar fire eight shots at Marcel Teme from close range and therefore must have known that Khiar intended to kill Teme when he helped him to escape. Based on his knowledge of Khiar’s intent, Osman should be liable for the included offence of accessory after the fact to attempt murder.[^1] For the reasons set out above, I cannot accept this argument.
[24] I also find that it would be fundamentally unfair to Mr. Osman to say that he was on notice that he could be convicted of accessory after the fact to attempt murder. Mr. Osman came before this court on a direct indictment charging a single count of accessory after the fact to murder, contrary to section 240 of the Criminal Code. The Crown first realized that the charge could not be proven when the defence brought an application for a directed verdict. The Crown now submits that the accused was on notice all along that accessory to attempt murder was an included offence. It is difficult to have sympathy for the Crown’s argument when the Crown itself laid a charge which could not be proven and neglected to lay any charge which could be proven. Justice Binnie commented in R. v. G.R. on the potential unfairness of the court “casting around” for included offences to remedy the Crown’s failure to lay the correct charge:
35 In my view, it cannot be said that the respondent in this case was fairly notified that in meeting the charge of incest he was also required to defend against sexual assault or sexual interference as “included” offences. I would apply to this case what was said by Phillimore L.J. in R. v. Woods, [1969] 1 Q.B. 447 (C.A.), at p. 451:
It is of the first importance that a man charged with an offence should know with certainty what it is he may be convicted of. No court should be encouraged to cast around to see whether somehow or other the words of the indictment can be found to contain by some arguable implication the seeds of some other offence.
36 The fact of the matter is that the Crown could have charged the respondent with sexual assault and sexual interference but in the exercise of its prosecutorial discretion refrained from doing so. On the facts of this case, the rules governing “included” offences do not provide a remedy for this omission.
[25] There were accessory charges which could have been proven based on the evidence heard at trial. The Crown in Maadani, for instance, laid a count of accessory after the fact to possession of a loaded handgun and that count did go to the jury: Maadani, at para. 43-52. If the Crown believed that there was a factual basis to convict Mr. Osman of accessory after the fact to attempt murder, that charge could have been included on the indictment. It would be unfair, in my view, for the court to correct the Crown’s error by now finding an included offence which the Crown had not contemplated at the outset of this trial.
[26] I am also troubled by the suggestion that the defendant should have been on notice of the included offence when the jurisprudence in Ontario is to the contrary. This exact issue was considered in Knott. The Crown in Knott argued in identical circumstances that accessory to attempt murder was an included offence to accessory to murder and Justice Nordheimer rejected that argument. The Crown did not appeal the finding in Knott and that decision was considered and applied in Maadani.
[27] There is good cause to believe that this court is bound by Knott: see R. v. Sullivan, 2022 SCC 19 at para. 44, 73. Even if the court is not bound by Knott, the defendant was certainly entitled to rely on it in preparing his defence. Knott was an unchallenged decision of an Ontario Superior Court judge which was exactly on point and had been considered and followed by a second Ontario Superior Court judge within the last year. The Crown in Maadani did not even argue that accessory to attempt murder was an included offence: see Maadani, paras. 62-64. The Crown submits that Knott has been overtaken by Sarrazin, 2011 SCC 54 but, for reasons to be addressed momentarily, I reject that submission. It is simply unfair to say that Mr. Osman was on notice that accessory to attempt murder was an included offence when the jurisprudence of this Province expressly said that it was not.
[28] There were avenues available for Mr. Osman to have defended the charge of accessory after the fact to attempt murder if he had been on notice that he could be convicted of that offence. Mr. Feldmann might have developed evidence concerning what Osman saw of the shooting, emphasizing the fact that the victim was still very obviously alive after the eight shots had been fired. He also could have cross examined civilian witnesses and the video analyst to establish that Mr. Khiar’s intention was not to kill Mr. Teme but instead to inflict bodily harm that was likely to kill. The latter questions would likely have mystified the jury, but the answers could conceivably have raised a defence to the charge of accessory to attempt murder. Mr. Feldmann presumably did not engage in these lines of cross-examination because he had no cause to believe that he was defending anything other than the charge which was on the indictment, and he had a complete defence to that charge.
[29] There are also procedural and substantive reasons to find that accessory to murder and accessory to attempt murder should be considered separate and distinct offences. The offence of accessory after the fact to murder is established by section 240 of the Criminal Code, whereas accessory to attempt murder arises from section 23. Accessory to murder is an offence listed in a section 469, meaning that the accused must show cause why he should be released, can only obtain bail in the Superior Court, and has no election to be tried by a judge sitting alone. Accessory to murder is also the only accessory offence which is punishable by life. These procedural and substantive differences reflect the stigma which attaches to the offence of accessory after the fact to murder as opposed to accessory to any other offence.
[30] In sum, I do not accept the conclusion in Bedi that accessory after the fact to attempt murder is an included offence of accessory to murder pursuant to section 662(1). In my view, they are separate offences. I also find that it would be unfair in this case to conclude that the defendant was on notice that he was liable to conviction for accessory after the fact to attempt murder as an included offence to the charge on the indictment.
The Application of Section 660 of the Code
[31] The Crown alternatively submits that Mr. Osman can be found guilty of accessory after the fact to attempt murder as a result of the decision of the Supreme Court of Canada in Sarrazin. This argument was also raised in Bedi and was rejected: Bedi, at para. 172. The argument is framed as follows in the Crown’s factum:
It is respectfully submitted that R. v. Sarrazin stands for the proposition that attempt murder can be an included offence in murder. As a result, this is yet another route to finding that the Application can stand trial on the lesser and included offence of accessory after the fact to attempted murder.
If section 660 applies to the charge of murder, there is no reason it should not apply to accessory after the fact to murder. If attempted murder can be a lesser and included offence of murder, then it should also be a lesser and included offence of the offence of being an accessory after the fact to that murder.
It is respectfully submitted that if there are available avenues to leave a lesser included offence of accessory after the fact to attempted murder before the jury in this case, then it should be done. It would be an error of law to take this lesser included offence away from the jury, in the circumstances of this case.
[32] It appears to me that this submission conflates included offences with attempts. For the reasons already stated, I do not accept that accessory to attempt murder is an included offence under section 662(1). The Crown alternatively submits that Osman can be convicted of accessory after the fact to attempt murder based on the operation of section 660. The reasoning is as follows:
a. Osman saw the shooting and knew that Khiar intended to kill the victim.
b. Knowing that Khiar had committed the offence of attempt murder, Osman helped him to escape.
c. If the perpetrator is charged with murder but is convicted of the included offence of manslaughter, the accessory is liable to be convicted as an accessory to manslaughter: Webber, 1995 CanLII 333 (BC CA), [1995] B.C.J. 2178 at para. 25. (B.C.C.A.)
d. The Supreme Court of Canada decided in Sarrazin that attempt murder is an included offence of murder.
e. It is not necessary for the perpetrator to be convicted of the principal offence for the accessory to be found guilty. The principal can be convicted or acquitted of an included offence and the accessory may still be convicted of being an accessory after the fact to the full offence: S.(F.J.) (1998), 1998 CanLII 842 (SCC), 121 C.C.C. (3d) 223 (S.C.C.)
f. Thus, Osman can be convicted of accessory after the fact to attempt murder even though Khiar is not charged with that offence and there is no basis to leave attempt murder as an available verdict for the jury to consider in Khiar’s case.
[33] I respectfully disagree with the submission that attempt murder is an included offence of murder. In Sarrazin, the accused was charged with murder and the evidence left no doubt that he intended to kill the victim. There was a doubt, however, whether he caused the victim's death. In those unusual circumstances, there was a basis to charge the jury regarding an attempt to commit the offence alleged in the indictment. The authority to leave the offence of attempt murder with the jury arose from section 660 of the Code, not section 662:
39 Nothing in the language of s. 662 addresses an accused's potential liability for attempting to commit the murder with which that accused is charged. Section 660 speaks directly to that potential liability. Nothing in s. 662 limits or qualifies the broad language of s. 660. Although both sections address the same issue - possible verdicts – they speak to different aspects of that issue. Section 660 directly addresses the accused's potential liability for an attempt to commit the offence with which the accused is charged. Section 662 speaks to liability for offences that are lesser and included in the offence with which the accused is charged either by virtue of the general language of s. 662(1) or the specific provisions of ss. 662(2)-(6).
49 In any event, I do not see that the difference in the mens rea requirements between attempted murder and murder has any relevance to the applicability of s. 660. The Crown's argument assumes that s. 660 applies only to attempts that also qualify as lesser and included offences within the language used in s. 662(1). Many cases have considered the meaning of the complicated language in s. 662(1) when determining whether a particular offence is a lesser and included offence of the charged offence: see, for example, R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371. That complicated language is not found in s. 660. Section 660 provides a free-standing statutory basis upon which attempts to commit the offence charged are available verdicts if the offence charged is not proved. Attempts are "included" offences in the sense that they are available verdicts under s. 660. They are not, however, subject to s. 662(1) and need not meet the criteria for a lesser and included offence under that section. In my view, it is irrelevant to the operation of s. 660 whether an attempt to commit an offence qualifies as a lesser and included offence under the language of s. 662(1).
R. v. Sarrazin, 2010 ONCA 577, [2010] O.J. No. 3748 (Ont. C.A.) - Underlining Added
[34] Attempt murder is described in Sarrazin as an “included offence” only in the sense that it was an available verdict for the jury to consider, not as an included offence within the meaning of section 662.
[35] The Crown factum relies on an annotation to section 229 which appears in Martin's Criminal Code. The annotation states, “attempt murder is an included offence to murder.” In my view, that annotation is misleading. A more apt statement of the law would be that in circumstances where an accused is charged with murder and there is evidence of an attempt to kill but not the complete offence of murder, attempt murder is an available verdict pursuant to section 660 of the Code.
[36] Attempt murder is not an available verdict for the principal offender in this case. Khiar repeatedly shot the victim, and those shots were the sole cause of the victim's death. On that evidence, Khiar can be found guilty of murder, manslaughter, or nothing. Because there is no air of reality to Khiar having committed the offence of attempt murder, there is no air reality to Osman being found guilty of accessory after the fact to attempt murder. My findings in this regard are identical to those of Justice Nordheimer in Knott:
29 It is clear that for Michael Knott to be found guilty of being an accessory after the fact to attempted murder, either Tyrone Knott or Kalito Smith would have to have committed the offence of attempted murder. It is also clear, however, that neither Tyrone Knott or Kalito Smith could have committed attempted murder from the simple fact that Andrew Edwards died, and there was no intervening event that caused his death. Tyrone Knott or Kalito Smith might have committed murder, or they might have committed manslaughter, but they could not have committed attempted murder. That fact means that Michael Knott cannot be found guilty of accessory after the fact to attempted murder.
R. v. Knott, [2006] O.J. No. 886 at para. 29
[37] Sarrazin has no impact on this conclusion. Sarrazin does not stand for the proposition that in every case where murder is charged, the jury should be instructed on the offence of attempted murder, (as would be the case for an included offence, such as manslaughter). Sarrazin decided that in the rare circumstances where the accused is charged with murder, but the full commission of that offence is not proven, there may be a basis to instruct the jury on an attempt to commit the full offence. This is not one of those rare cases. At the time of arraignment, Mr. Osman could not possibly have foreseen that he was also standing trial on the allegation that he was an accessory after the fact to attempt murder on the basis that Khiar had attempted to kill the victim but failed to complete the offence. The accused must know the allegation which he faces at the outset of his trial. Nothing in the Crown opening, or the evidence would have put Mr. Osman on notice that he was liable to be convicted of any offence other than the offence alleged on the indictment.
Attempt accessory after the fact to murder
[38] The Crown factum also raises the possibility that the jury could be instructed on the offence of attempt accessory after the fact murder. This argument was not pursued in oral submissions and in my view, it has no merit. The essential element of accessory to murder which cannot be proven in this case is that the accused knew that Khiar had committed murder when he assisted him to escape. That remains an essential element of an attempt to commit the offence.
[39] Mr. Osman is accordingly discharged on count 8 on the indictment.
BAWDEN J.
Released: August 2nd, 2022
COURT FILE NO.: CR-20-10000246-0000
DATE: 20220802
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
IBRAHIM KHIAR AND ABDULLAHI OSMAN
Applicants
REASONS FOR JUDGMENT
BAWDEN J.
Released: August 2nd, 2022
[^1]: See paragraphs 4-12, 20, 24-26 of the Crown factum.