Court File and Parties

Court File No.: CR-21-70000068 Date: 2024-11-21 Ontario Superior Court of Justice

Between: His Majesty The King And: Ibrahim Khiar

Counsel: Mary Humphrey and Liz Jackson, for the Crown Craig Bottomley and Andrea Vanderheyden, for Mr. Khiar

Heard at Toronto: October 28, 30 and November 1, 5 and 6, 2024

Before: J.K. Penman J.

A Overview

[1] Mr. Khiar was charged with the first-degree murder of Jaunoi Christian on February 8, 2019, at the Vault nightclub at 366 Queen St. East (“the Club”). It was alleged that Mr. Khiar approached Mr. Christian from behind and shot him in the neck/head area outside the Club, and then shot him again three more times after Mr. Christian staggered back into the entrance of the nightclub. Mr. Christian died from a gunshot wound to the head.

[2] Several applications were brought mid-trial, and I provided bottom-line rulings at the time. The applications in order were as follows:

• An application by the Crown under s. 715(1) of the Criminal Code, R.S.C. 1985 c. C-46 (the “Criminal Code”) to have the preliminary hearing evidence of Jahray Dyer read in at trial.
• An application by Mr. Khiar for a directed verdict on first-degree murder.
• An application by Mr. Khiar that self-defence be left to the jury.

[3] These are my reasons for those rulings.

B Section 715(1) Application

[4] Jahray Dyer was with Mr. Christian at the Vault the night of the shooting. He provided evidence at the preliminary hearing about his relationship with Mr. Christian and conversations he had with Mr. Christian shortly before Mr. Christian left the Club. These conversations were previously ruled admissible by Code J., in R. v. Khiar, 2022 ONSC 4133. While efforts had been made to locate and serve Mr. Dyer with a subpoena, those efforts failed.

[5] The Crown argued that Mr. Dyer was evading service and that this evasion of service constituted a refusal to testify within the meaning of s. 715(1).

[6] Mr. Khiar opposed the application arguing that there was no evidence that Mr. Dyer knew his attendance at trial was being sought, and for this reason there was no basis for finding he was refusing to testify. The defence also argued that there was limited cross-examination of Mr. Dyer at the preliminary hearing. In the circumstances Mr. Bottomley argued that the strict statutory requirements had not been met.

[7] I am satisfied, based on the circumstances surrounding the police efforts to locate Mr. Dyer, that Mr. Dyer was evading service. In my view, there is no difference between evading service and refusing to testify within the meaning of s. 715(1). The statutory requirements under s. 715(1) are met.

[8] I heard from three witnesses on the application. Detective Sergeant Akeson testified that in May of 2024 he requested that a subpoena be prepared for Mr. Dyer and steps were taken to serve the subpoena. Officers attended the address on file and learned that Mr. Dyer did not live there and had not done so for at least a year and a half. On June 24, officers learned from his Ministry of Transportation of Ontario (“MTO”) profile of an address outside the jurisdiction. They attended that address with no success. The officers also called two phone numbers associated to Mr. Dyer with no success and no ability to leave voicemail. The subpoena was eventually returned to Detective Akeson unserved.

[9] Detective Akeson assigned Officer Yang to make additional efforts. DC Yang flagged Mr. Dyer on the Canadian Police Information Centre (“CPIC”) to ensure that if any police officer across the country had contact with Mr. Dyer, they would learn that the Toronto Police Service (“TPS”) was interested in serving him with a subpoena. A TPS report was also created with a subpoena attached to it so that any officer would be able to serve Mr. Dyer with a copy of the subpoena on the spot.

[10] On September 18, Officer Yang made further inquiries and learned of an address outside the jurisdiction. Mr. Dyer was not located at that address. A request to cybercrimes was made to check for any social media posts that might identify a possible location. A request was sent to social assistance who provided an address. Officers attended that address on September 26 and spoke to the landlord. The landlord indicated that Mr. Dyer and his mother had moved out one month prior, and there was an associated TPS occurrence. DC Yang learned of a third address where it was believed Mr. Dyer and his mother were staying with a relative.

[11] Officer Crisp attended this third address on September 30. Officer Crisp told the person who answered the door, Shannon McGraw, that they were looking to serve a subpoena on Mr. Dyer. Ms. McGraw told Officer Crisp that Mr. Dyer was inside and would go check. She then returned and said that he had left. Mr. Dyer’s mother, Christine Watkins, came to the door and said that Mr. Dyer was out of the country for a family emergency with no return date. Officer Crisp obtained Ms. Watkins’ phone number and attempted to serve her with the subpoena for Mr. Dyer which she refused to accept. Police determined that there was no record of Mr. Dyer leaving the country.

[12] On October 1, Officer Yang again made efforts to contact Mr. Dyer’s mother with no response. Messages were left for Ms. Watkins telling her that if police were not able to reach Mr. Dyer a material witness warrant would be sought. Officer Akeson followed up again as recently as October 28, 2019, by calling the number for Mr. Dyer’s mother. He also left her messages on WhatsApp. He never received a response.

[13] Ms. McGraw testified on the application and was clearly very agitated and upset that she had been subpoenaed for a murder trial for which she had no knowledge. Ms. McGraw has known Mr. Dyer and his mother for several years through her boyfriend who she was living with at the time. She acknowledged that Ms. Watkins had been staying with them for a few days. In her evidence she denied telling Officer Crisp that Mr. Dyer was in the residence. She denied that Mr. Dyer was at the residence. She then testified that she might have said he was there but had no idea why she would have said that. When asked again if Mr. Dyer was at her house on September 30, she said she had no idea. She overheard Ms. Watkins say that Mr. Dyer was out of the country, and this was news to her.

[14] Based on this record I am satisfied that the evidence establishes a “pattern of avoidance” by Mr. Dyer to be served. Numerous contacts were made with people known to Mr. Dyer including his mother. According to the landlord that police spoke to on September 26, Mr. Dyer and his mother had been living together. I accept that on September 30, Officer Crisp was initially told that Mr. Dyer was inside the residence. Ms. McGraw’s testimony about whether Mr. Dyer had been at her place on September 30 was inconsistent, evasive, and not credible.

[15] I am also satisfied that the information that Mr. Dyer was out of the country was likely false and was being used as an excuse to avoid him being served. Ms. Watkins persistence in refusing to respond to phone calls from the police is also suspicious.

[16] While this evidence establishes that Mr. Dyer had not been served, as opposed to “failing to respond to a subpoena”, I agree that it is a “distinction without a difference” for the purposes of s. 715(1): R. v. Atkinson, 2018 MBCA 136, 371 C.C.C. (3d) 1, at para. 38. It should not be the case that witness efforts to resist being served can result in technical non-compliance with the requirements of s. 715(1).

[17] While I appreciate the argument that the cross-examination might have been different or more fulsome, that simply is not the test. Counsel for Mr. Khiar had a full opportunity to cross-examine Mr. Dyer at the preliminary hearing and did so. I am not persuaded that the admission of Mr. Dyer’s preliminary hearing evidence would operate unfairly to Mr. Khiar.

[18] I am satisfied that the requirements under s. 715(1) are met. The application is granted.

C Directed Verdict Application

[19] Counsel for Mr. Khiar argued that there was insufficient evidence of planning and deliberation and that there should be a directed verdict of acquittal on first degree murder.

[20] The test for a directed verdict is well settled and is the same test applied by a judge at a preliminary inquiry in determining whether there is sufficient evidence to commit an accused for trial. The question is "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty": United States of America v. Sheppard, [1977] 2 S.C.R. 1607, at p. 1080; R. v. Monteleone, [1987] 2 S.C.R. 154, at pp. 160-161.

[21] In a circumstantial case the judge must weigh the evidence only to the extent of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at pp. 840-841. On a directed verdict application, it is for the jury to determine and weigh any competing inferences, not the trial judge. When it is possible for the trier of fact to draw more than one inference, a circumstantial case should go to the jury: R. v. Jama, 2017 ONSC 471, at para. 30.

[22] There is no dispute that planning requires the plan having been “weighed and considered”. Deliberation requires finding that there has been time taken to “weigh the advantages and disadvantages of the intended action”: R. v. Nygaard, [1989] 2 S.C.R. 1074, at para. 18. Planning and deliberation must be distinguished from intention to kill.

[23] The evidence as to planning and deliberation in this case is circumstantial. The Crown theory was that Mr. Khiar left the Club to retrieve a firearm and then laid in wait for Mr. Christian to leave the Club. They relied on the following to support an inference of both planning and deliberation:

• The testimony of the Vault security guard, Olivia Chau, that she searched each person entering the Club for weapons, lighters, matches and marijuana;
• The video footage of Ms. Chau searching Mr. Khiar which included his jacket and pants’ pockets, his waist, arms, and legs;
• The video footage of Ms. Chau searching the males that entered the Club with Mr. Khiar;
• The video footage showing Mr. Christian walking from the back of the Club to the front entrance with Mr. Khiar following closely behind;
• The video footage of Mr. Khiar leaving the Club, and he and Denton McKenzie going off screen and returning 43 seconds later, to an area just outside the Club;
• The video footage of the deceased leaving the Club and Mr. Khiar immediately approaching Mr. Christian from behind and firing; and
• The time frame of 4 minutes and 15 seconds between when Mr. Christian was followed by Mr. Khiar to when Mr. Christian left the Club and was shot.

[24] Counsel for Mr. Khiar argued no reasonable inference can be drawn that Mr. Khiar knew that Mr. Christian was coming to the Club that night and had brought a weapon into the Club with a plan to kill. Or, that Mr. Khiar left the Club, went to a vehicle, armed himself and then laid in wait for Mr. Christian.

[25] While I agree there was no evidence that Mr. Khiar knew Mr. Christian was coming to the Club that evening, that is not necessary to establish planning and deliberation. In my view the evidence that relates to planning and deliberation began when Mr. Khiar followed directly behind Mr. Christian as he walked toward the front entrance.

[26] Mr. Bottomley argued that the search of Mr. Khiar by Ms. Chau was not “airtight”, and that it is speculative to suggest that Mr. Khiar left the Club to arm himself. He relied on the fact that THC packets were found in Mr. Christian’s pockets on autopsy, and evidence that people were smoking in the Club notwithstanding the directive that Ms. Chau remove lighters, matches, and marijuana from the patrons.

[27] This is an inference that the jury is entitled to draw. But it is also a reasonable inference that the search of Mr. Khiar was sufficient and that he was unarmed while in the Club. A firearm is considerably larger than a packet of THC. The search of Mr. Khiar is on video and shows his coat and pants’ pockets, legs, back, and waistband being searched. The jury will have the video footage which shows Mr. Khiar with the firearm in his hand after the first shooting. They can assess the reasonableness of the suggestion that Mr. Khiar had the firearm secreted on his person in such a way that it was missed by Ms. Chau.

[28] When Mr. Khiar left the Club, he went off screen for a period of approximately 43 seconds. While I agree that this leaves a very short window for Mr. Khiar to have gone to a car parked across the street, it does not have to be the case that Mr. Khiar retrieved the firearm from the car. It does not matter where, when or how Mr. Khiar armed himself. What matters is that somehow once leaving the Club, Mr. Khiar armed himself and then waited outside the Club. This is analogous to R. v. Adam, 2011 ONSC 7294, at para. 40, where Molloy J. stated that the point was not where, when, or how Mr. Adam came into possession of the knife. The Crown was not required to prove any of those things, simply that there was an inference that the accused had brought the knife into the office where he stabbed the victim.

[29] Mr. Khiar made the decision to follow Mr. Christian to the front of the Club although Mr. Christian remained in the Club for almost four minutes before he left. A reasonable inference is available that when Mr. Khiar left the Club, he retrieved the firearm and waited outside. Once Mr. Christian left the Club, there was no hesitation, scuffle, argument, or words spoken. Mr. Khiar moved up behind Mr. Christian as he was stepping onto the snowbank and roadway and shot him. The time elapsed between Mr. Khiar leaving the Club and Mr. Christian being shot was 4 minutes and 15 seconds.

[30] Mr. Bottomley did not suggest that the time frame of 4 minutes and 15 seconds was not enough time to planning and deliberate. The thrust of Mr. Bottomley’s argument was that it was speculative to suggest that Mr. Khiar was not armed in the Club, and that given it was only 43 seconds he was off screen, it was mathematically impossible for Mr. Khiar to have armed himself.

[31] In my view, when looking at the inferences most favourable to the Crown, I am satisfied that there is a reasonable inference that Mr. Khiar was unarmed while in the Club. It is also an available, reasonable inference that he then left the Club having followed Mr. Christian to the front and went and retrieved a firearm. It is open to the jury to find that Mr. Khiar then waited outside the Club for Mr. Christian to leave for the purposes of executing a plan to kill Mr. Christian.

[32] In my view, when considering the time frame of 4 minutes and 15 seconds between Mr. Christian being followed by Mr. Khiar and being shot outside, in conjunction with the evidence of Olivia Chau and the surveillance footage, an inference of planning and deliberation is available.

[33] The application for directed verdict on first-degree murder is dismissed.

D Is there an Air of Reality for Self-Defence to be Left to the Jury?

[34] Counsel for Mr. Khiar argued that if the jury were to find Mr. Khiar was the shooter, when he shot Mr. Christian in the entranceway, he did so in self-defence. The Crown argued that there was no air of reality to self-defence and that the second shooting 20 seconds after the first was simply a continuation of Mr. Khiar’s intention to kill Mr. Christian.

[35] The relevant portions of the self-defence provisions are outlined in s. 34 of the Criminal Code. First, the accused must believe on reasonable grounds that force, or a threat of force is being used against them. Second, the subjective purpose for responding to the threat must be to defend or protect oneself. Third, the accused's acts must be reasonable in the circumstances. In R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 51, the Supreme Court of Canada conceptualized these three elements as the catalyst, the motive, and the response. The first and third element “blend objective and subjective considerations” while the second element is subjective: R. v. Paul, 2020 ONCA 259, at para. 24.

[36] A defence may only be put to the jury if there is an air of reality to that defence which is only made out where a properly instructed jury, acting reasonably, could acquit the accused on the basis of the defence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 51 and 86. This requires a consideration of the totality of the evidence, assuming the evidence relied upon by the accused to be true: Cinous, at para. 52. In the case of self-defence specifically, there must be an air of reality on each of the three inquiries for the defence to be put before the jury: R. v. King, 2022 ONCA 665, at para. 29, leave to appeal dismissed, 2023 S.C.C.A, 40467, citing Cinous, at para. 88; Paul, at para. 24.

[37] As the defence did not call evidence and Mr. Khiar did not testify, there was no evidence of his state of mind to explain why the shooting was necessary for self-defence. It is not disputed that the accused's belief that this force was necessary must be based on reasonable grounds. In some cases, an air of reality and reasonable inferences about the accused's intentions and conduct may arise from the Crown's case – “there is no requirement that the evidence be adduced by the accused”: Cinous, at para. 53. In this case the evidence comes almost entirely from the video footage of the two shootings.

[38] The evidence is that when Mr. Christian left the Club and was on the roadway, he was approached from behind by Mr. Khiar, who shot him in the neck/head area. Mr. Khiar ran off and made his way back to the Club. Mr. Christian fell to the ground but remarkably a few seconds later got up and also made his way back into the Club. Mr. Christian then encountered Mr. Khiar in the entranceway to the Club. Four more shots were fired by Mr. Khiar, three of which hit Mr. Christian including the fatal shot to the top of his head.

[39] This second sequence of events in the entranceway broken down frame by frame reveals the following. As Mr. Khiar approached the entranceway, Mr. Christian reached for the door from the outside. As Mr. Christian began opening the door, Mr. Khiar continued to approach with the gun still in his hand. Mr. Christian and Mr. Khiar came together, and the gun was pointed at Mr. Christian’s face. Mr. Christian then grabbed at or pushed Mr. Khiar’s arm away. Mr. Christian’s hand came close to the gun. Mr. Khiar managed to move the gun down and away from Mr. Christian while at the same time backing himself up against the wall. Mr. Christian kept reaching for the gun. Mr. Khiar got the gun up and shot Mr. Christian twice in the head. This entire sequence of events took 4 seconds.

[40] Mr. Bottomley argued that when Mr. Khiar retreated into the Club the two shootings were no longer a single transaction. Counsel argued that the second shooting was a surprise encounter between Mr. Khiar and Mr. Christian and that the mens rea for murder had exhausted itself. If that is the case, and there is an air of reality to self-defence, the defence should be put to the jury.

[41] The Supreme Court in R. v. Cooper, [1993] 1 S.C.R. 146, dealt with the issue of what degree of concurrency is required between a wrongful act and the requisite mens rea. While there needs to be concurrence, the court made clear that the guilty act and the guilty mind do not need to be completely concurrent. For example, if the accused shot the victim in the head with the requisite intent, with death ensuing a few minutes later, it would be relatively easy to infer that the requisite intent or mens rea coincided with the unlawful act of shooting: at pp. 157-158.

[42] In the video footage when Mr. Khiar ran back into the Club, he appeared to be looking for someone. His behaviour could be described as frantic. When he encountered Mr. Christian in the entranceway, it appears to have been unexpected for both parties. It is open to the jury to infer that when Mr. Khiar made his way into the Club, he no longer had the intent for murder at the time he encountered Mr. Christian in the entranceway. While I appreciate the time frame between the two shootings is only 20 seconds, there is an inference available to the jury, that Mr. Khiar’s intent for murder had extinguished itself.

[43] On this basis it is also open to the jury to find that when Mr. Christian and Mr. Khiar encountered each other in the entranceway and Mr. Christian repeatedly grabbed at or pushed the gun away, Mr. Khiar reasonably believed Mr. Christian was reaching for the gun for the purpose of using it to inflict harm on Mr. Khiar. It is open to the jury to find that Mr. Khiar, having shot Mr. Christian a short time earlier, would reasonably believe that if Mr. Christian were able to get the gun, he would then have used it to hurt Mr. Khiar. I am satisfied there is an air of reality to this element of self-defence that the Supreme Court in Khill describes as the “catalyst”.

[44] On the facts of this case, it follows that Mr. Khiar could have believed he needed to shoot Mr. Christian to defend himself. As the Supreme Court stated in Khill, “an accused’s purpose for acting may evolve as an incident progress or escalates”: at para. 61. In my view it is open to the jury to find that as the encounter in the entranceway evolved, Mr. Khiar found himself in a situation, that I appreciate he caused, where he needed to shoot Mr. Christian to defend himself from the threat of being shot himself. There is an air of reality to this element of self-defence described by the Supreme Court in Khill as the “motive”.

[45] The third inquiry looks to the reasonableness of Mr. Khiar’s response, through the lens of “conduct expected of a reasonable person in the circumstances”: Khill, at para. 62. While the belief on Mr. Khiar’s part that Mr. Christian’s conduct was aggressive in nature might have been mistaken, his belief is still relevant to the inquiry as to the reasonableness of his response. This inquiry, however, is primarily focused on the reasonableness of Mr. Khiar’s actions, not his mental state: Khill, at para. 66.

[46] In my view it is open to the jury to find that Mr. Khiar’s response in shooting Mr. Christian was reasonable when considering the factors enumerated in section 34(2) paragraphs (a) to (h), including that Mr. Christian at the time of his death was 6ft 5.5 and weighed 307lbs. Mr. Khiar was 6ft and 200lbs. Mr. Christian and Mr. Khiar were in a small entranceway with Mr. Khiar pressed up against the wall, and the possibility that Mr. Christian may have succeeded in grabbing the firearm out of Mr. Khiar’s hand. This corresponds with the third element of self-defence, described by the Supreme Court in Khill, as the “response”. In assessing this element – the reasonableness of the act – “the trier of fact must be mindful that people using defensive force in stressful and dangerous situations are not expected to weigh their response to a nicety”: Paul, at para. 25, citing R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 7.

[47] It is not a question of whether the defence is “likely, unlikely, somewhat likely, or very likely to succeed at the end of the day”: Cinous, at para. 54. That is a question for the jury. But rather, the question is whether the evidence discloses a real issue to be decided by the jury. In my view this evidence establishes an issue as to whether Mr. Khiar was acting in self-defence during the events in the entranceway to the Club.

[48] While this is a close call, I am satisfied in the unusual circumstances of this case that there is an air of reality to the three elements of self-defence in relation to the shooting in the entranceway. Self-defence will be left with the jury.

J.K. Penman J. Released: November 21, 2024

Court File No.: CR-21-70000068 Date: 2024-11-21 Ontario Superior Court of Justice

Between: His Majesty The King And: Ibrahim Khiar

Reasons for Judgment J.K. Penman J. Released: November 21, 2024