Reasons for Judgment

Court File No.: CR-20-10000141-0000
Date: 2025-04-24
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Ibrahim Khiar

Appearances:
Elizabeth Jackson and Mary Humphrey, for the Crown
Andrea Vanderheyden, for the Defendant/Respondent

Heard: September 18 and October 2, 2024
Judge: Peter Bawden

Introduction

[1] Ibrahim Khiar fired eight shots from a 40-calibre handgun at Marcel Teme, an unarmed and defenceless 19-year-old. He hit him twice in the lower abdomen, causing his death. Mr. Khiar was charged with second degree murder, but the jury returned a verdict of manslaughter. The jury also convicted Mr. Khiar of three counts of aggravated assault arising from injuries suffered by three bystanders who were struck by stray bullets.

[2] The Crown submitted that Mr. Khiar should be sentenced to life imprisonment or, in the alternative, 20 years’ incarceration with an accompanying order that he serve half of that sentence before becoming eligible for parole. Defence counsel sought a sentence of 15 years’ incarceration and no order regarding parole eligibility.

[3] On October 2, 2024, I imposed a sentence of 18 years’ incarceration to be served concurrently to a 9 ½ year sentence imposed by Justice McMahon in March 2022. I declined to order that Mr. Khiar serve one-half of his sentence before becoming eligible for parole. These are my reasons for those decisions.

The Facts of the Offence

[4] On July 1, 2018, Ibrahim Khiar came to Kensington Market to take part in Canada Day celebrations. He met a friend, Abdullahi Osman, shortly after arriving. The two men spent a quiet night in a cafe with Mr. Osman’s fiancée and another woman.

[5] Marcel Teme arrived in Kensington Market with three other young men. He attended a party at the Socialite bar where he consumed a significant amount of alcohol.

[6] At about 10:15 pm, Mr. Khiar and his friends left the cafe and began to walk south on Augusta Avenue towards their cars. Mr. Teme left the Socialite bar at roughly the same time. He was alone, drunk, and possibly in a belligerent mood. He also walked south on Augusta Avenue.

[7] At 10:20 pm, Mr. Teme saw Mr. Khiar and Mr. Osman and crossed the street to speak to them. There is no evidence that Mr. Teme had previously met either of the two men. Mr. Teme approached the group from behind and said something which caused Mr. Osman and Mr. Khiar to stop. The three men stood talking for approximately 30 seconds before Mr. Osman became agitated. Mr. Khiar put his arm between Mr. Osman and Mr. Teme, apparently attempting to prevent a physical altercation. Mr. Osman stepped around Mr. Khiar and began to walk towards Mr. Teme in an aggressive manner. Mr. Teme initially backed away, but then suddenly punched Mr. Osman in the face. The force of the punch snapped Mr. Osman’s head back. What happened next almost defies belief.

[8] Mr. Khiar reached into his waistband and pulled out a .40 calibre handgun. He fired eight shots at Mr. Teme in less than two seconds. The last four shots were fired as Mr. Teme lay on the ground with both hands in the air, instinctively trying to shield himself from the shots and quite possibly begging for his life.

[9] Three young men were walking south on Augusta Avenue when the shooting occurred. All three were struck by either bullets or bullet fragments. A bullet grazed the back of one victim’s head.

[10] Mr. Khiar and Mr. Osman fled to Mr. Osman’s car. Mr. Khiar quickly discarded the gun and his clothing, but police were able to identify him as the shooter. A warrant was issued for his arrest two weeks after the homicide.

[11] Mr. Khiar managed to evade arrest for almost eight months. When he was finally apprehended, he was holding 300 grams of fentanyl, 200 grams of carfentanyl, three handguns and the equipment necessary to convert 39 semi-automatic handguns into fully automatic guns. Mr. Khiar pleaded guilty to various offences arising from his arrest and received a 14-year sentence which was reduced to 9 ½ years based on pretrial custody served.

[12] Mr. Khiar testified at trial that Mr. Teme was carrying a handgun, and he was acting in self defence when he fired the eight shots. The jury rejected that testimony and convicted Mr. Khiar of manslaughter. The parties agree that the verdict could only have been based on the defense of provocation rather than any uncertainty regarding Mr. Khiar’s intent to kill. I agree with that submission.

Additional Facts Alleged by the Crown

[13] The Crown asks the court to make the following additional findings pursuant to section 724(2)(b) of the Code:

a. Mr. Teme was not carrying a firearm when he encountered Mr. Khiar;
b. Mr. Khiar did not believe that Mr. Teme was carrying a firearm; and
c. Mr. Khiar’s attack on Mr. Teme was not connected to having been shot himself one year earlier.

(a) Mr. Teme was not armed

[14] Mr. Khiar testified at trial that Mr. Teme threatened him by saying “you want smoke, eh?” while putting his hand on the butt of a gun which he held at his waist. Mr. Khiar turned to Mr. Osman to tell him that Mr. Teme was armed when he heard Mr. Osman scream. Believing that Mr. Osman had been shot, Mr. Khiar pulled out his own gun to defend himself and his friend. The jury rejected this testimony, as do I.

[15] I am certain that Mr. Teme was not armed for the following reasons:

a. No gun was found at the scene and there was no opportunity for any civilian to have removed a firearm after the shooting without being observed by other civilians.
b. Two civilian witnesses, E.B. and T.G., had an unobstructed view of the shooting and both testified that Mr. Teme was unarmed.
c. Mr. Osman was moving aggressively towards Mr. Teme at the point that Mr. Khiar claims to have seen Mr. Teme gripping the handle of a gun in his waistband. It is highly unlikely that Mr. Osman would have attacked a man who was gripping a firearm.
d. Mr. Teme did not have any history of possessing weapons or acting violently. The only entry on CPIC for Mr. Teme was a 2017 discharge for the offence of possessing a Schedule I substance.
e. Mr. Khiar has evidently reconsidered his claim at trial that he saw Mr. Teme holding a gun. He told the author of the EPSR that Mr. Teme “lobbed threats and motioned in a fashion that led (him) to believe he had a gun.” Ms. Vanderheyden submitted that this change in Mr. Khiar’s recollection may be the result of self-reflection since his conviction.

(b) Did Mr. Khiar believe that the victim was armed?

[16] The Crown asks me to find that Mr. Khiar knew that Mr. Teme was unarmed. This fact is not a necessary implication of the jury’s verdict since it was open to the jury to find that Mr. Khiar believed that Mr. Teme was armed but rejected self-defence as unreasonable in all the circumstances.

[17] Determining what Mr. Khiar believed requires some consideration of his unusual circumstances. Mr. Khiar has been engaged in a high-risk lifestyle since he was 20 years old. On his own evidence, carrying a gun was routine to him. Mr. Khiar testified that he believed Mr. Teme was carrying a gun because nothing else could explain his provocative behavior towards two older, larger men. It may be that from Mr. Khiar's singular perspective, carrying a gun is so commonplace that it is natural to expect that any opposing party in a street confrontation would also be armed. While I do not believe that evidence, I find that it might reasonably be true from Mr. Khiar’s skewed perspective.

[18] I am fully satisfied, however, that Mr. Khiar knew that Mr. Teme could not defend himself when he fired the last four shots. Mr. Teme was lying prone on the ground with his hands extended upwards in the universal gesture of surrender when those shots were fired. Mr. Khiar absolutely knew at that point Mr. Teme was defenseless, whether he believed him to be armed or not.

(c) The Impact of the Thompson Hotel Shooting

[19] In May 2016, Mr. Khiar was shot during an altercation at the Thompson Hotel. He suffered a serious injury and was hospitalized for several weeks. He testified that he began to carry a handgun in October 2016 because he feared being shot again and did not believe that the police would protect someone like him. The Crown challenged this testimony by pointing to the many occasions when he had been found in possession of firearms both before and after the Thompson Hotel shooting:

a. In July 2011, Khiar received either guns or ammunition from a known gun-trafficker who was under police surveillance. He was narrowly acquitted by Justice Morgan of conspiracy to traffic in firearms: see R. v. Khiar, 2015 ONSC 352, para 48.
b. In May 2013, Mr. Khiar was arrested while holding two handguns, two oversized magazines and ammunition.
c. Seven months after killing Mr. Teme, Mr. Khiar shot and killed Jaunoi Christian with a handgun.
d. When Mr. Khiar was finally arrested for the murders of Marcel Teme and Jaunoi Christian, he was carrying a loaded .357-calibre handgun in his jacket pocket. The gun had been modified with a side switch plate which converted it from a semi-automatic to a fully automatic firearm. He had two more loaded handguns in the trunk of his car, as well as over 350 grams of fentanyl mixed with carfentanyl and 57 grams of heroin. Police searched his residence and seized 39 side switch plates, a vast amount of ammunition, and ½ kilogram of fentanyl and heroin.

[20] The Crown maintains that Mr. Khiar was a gun and drug trafficker, and it was for that reason that he habitually carried a gun, not the shooting at the Thompson Hotel. I agree.

[21] Justice Morgan observed in 2015 that Mr. Khiar was engaged in high-risk lifestyle and cautioned him to change his ways. Mr. Khiar ignored that advice. He continued in his criminal activity even after he had been shot himself and had killed Marcel Teme. There are undoubtedly many reasons why Mr. Khiar habitually carried a firearm, but they all emanate from his criminal lifestyle. The fact that he was once shot himself was a foreseeable manifestation of that lifestyle, but it was not the reason that he was carrying a gun on July 1, 2018.

Marcel Teme - The Victim of the Manslaughter

[22] The evidence discloses very little about the life of Marcel Teme. His family did not attend the trial and declined to provide victim impact statements. Mr. Teme’s mother told a victim witness worker that it was simply too painful for her to participate in this trial.

[23] Mr. Teme did not have any criminal record and he had no history of violent behaviour. He was not armed on the night of July 1st and apart from being intoxicated in public, he was not engaged in any unlawful activity. Marcel Teme was a drunken 19-year-old who unwisely provoked two older, larger men. When he punched Mr. Osman, he could not possibly have known that Mr. Osman’s companion was carrying a loaded handgun and was prepared to use it, even in a highly public setting.

The Background of the Defendant

[24] Much of the evidence concerning Mr. Khiar’s background was introduced through an Enhanced Presentence Report prepared by Ms. Michelle Richards, an experienced social worker with the Sentencing and Parole Project. Ms. Richards’ report includes a thoughtful investigation of the effects of systemic racism on Mr. Khiar’s upbringing and offers some explanation of how racism has influenced his offending behaviour.

Early Life

[25] Mr. Khiar was born in Saudi Arabia in October 1985. His parents were of Eritrean and Somalian descent, and neither were citizens of Saudi Arabia. Due to their lack of citizenship, Mr. Khiar’s parents were unable to purchase a home or own a business. The family moved to Canada when Mr. Khiar was nine years old to seek a better life.

[26] After arriving in Canada, Mr. Khiar’s father opened a restaurant, and his mother found a job in retail sales. They purchased a home and enrolled their five children in nearby schools. Mr. Khiar did well in school and excelled in mathematics.

[27] Mr. Khiar acknowledges that his behaviour began to deteriorate in middle school and by the time he was in high school, he was frequently suspended for poor behavior. He dropped out of school in grade 11 and has never continued his education.

Experiences with Racism

[28] Mr. Khiar reported that he first experienced racism in Saudi Arabia. The parents of his friends told them to stay away from him because he was black, and this often led to physical fights. His teachers were openly hostile to black students and especially so towards him because he would break the rules.

[29] When the family moved to Toronto, they purchased a home in a predominantly white neighbourhood. Mr. Khiar claimed that the family’s white neighbours “hated” him because he was black and started a petition to have him removed from the area.

[30] Mr. Khiar reported that his family’s finances in Canada were extremely poor. They did not have any luxuries and sometimes had no heat during the winters.

[31] Mr. Khiar did well in school until arriving at Runnymede Collegiate. He told Ms. Richards that white teachers at Runnymede accused him of being a gang member because of his clothing and musical tastes. He dropped out of the school because he hated the teachers and the principal.

[32] Mr. Khiar told Ms. Richards that he was first targeted by the TAVIS squad when he was only nine years old. He described having been harassed by Police frequently during his teenage years and having once almost been shot by Police. He feels that he will be harassed by police no matter where he is. This sentiment was confirmed by his friend, Ayisha Upshaw, who he has known since 2015.

[33] Mr. Khiar told Ms. Richards that the only employment that he was ever able to find was paid under the table. He claimed to have worked as a courier, a construction worker, and as a volunteer for the For Youth Initiative and Toronto Community Housing. Ms. Richards did not attempt to confirm any of this information.

[34] Mr. Khiar told Ms. Richards that he did not want to hurt anybody on the night that he shot Mr. Teme. He said that Mr. Teme “and his friends” taunted himself and Mr. Osman and then “motioned in a fashion that led Mr. Khiar to believe he had a gun”. Mr. Khiar told Ms. Richards about the Thompson Hotel shooting and discussed the murder of a local rapper whom he considered to be a friend. He described himself as hypervigilant because of these events and said that it is better to defend himself and pay the consequences then ignore a threat and risk death. Ms. Richards concluded “the exploration of his social history revealed that his exposure to violence and fear of harm motivated his decision to carry a gun that he ultimately used to take a life.”

Conclusions Regarding the Social Context Evidence

[35] I have great difficulty in accepting much of what Mr. Khiar told Ms. Richards. My difficulties include the following:

a. Mr. Khiar described problems arising from the overt racism of teachers both in Saudi Arabia and Toronto, but his mother told Ms. Richards that she was unaware of any difficulties in either country. On the contrary, she recalled that Mr. Khiar was a smart student and was always well-liked by his teachers.
b. Mr. Khiar described crippling financial problems at home, but his mother said that her husband provided well for the family in Saudi Arabia, and both parents were employed shortly after arriving in Canada.
c. Mr. Khiar told Ms. Richards that Mr. Teme and his friends taunted himself and Mr. Osman, and that Mr. Teme made a motion which caused him to believe that he was armed. Mr. Khiar’s evidence at trial was quite different. He testified at trial that he saw Mr. Teme holding a gun in his waistband. There was no evidence at trial that Mr. Teme taunted Mr. Khiar and it was undisputed that Mr. Teme was alone when he was shot. Mr. Khiar’s statement that he never intended to hurt anybody cannot be reconciled with the fact that he shot at Mr. Teme eight times at point-blank range.

[36] Ms. Richards was cross-examined regarding her failure to investigate the information provided by Mr. Khiar. She responded that her funding was insufficient to conduct investigations and if the information provided by Mr. Khiar or his references was to be fact-checked, that work would have to be done by the police and the Crown Attorney.

[37] The Crown pointed out to Ms. Richards that Mr. Khiar had provided very few collateral sources for the report and had not asked her to speak to any of his siblings. Ms. Richards explained that Mr. Khiar was entitled to approve who she would consult in preparing the EPSR and she would not speak to any source without his permission. She did not view it as her role to check the antecedents of his collateral sources or assess whether more reliable information could be obtained elsewhere. When it was observed that one of the sources provided by Mr. Khiar had served a 10-year sentence for armed robbery, Ms. Richards indicated that she was not aware of this but it would have made no difference to her assessment of the reliability of the source’s information.

[38] Ms. Richards concluded that Mr. Khiar’s exposure to violence and fear of harm motivated him to carry a gun. She acknowledged that she did not question Mr. Khiar regarding his arrest in February 2019 when he was found in possession of three handguns, as well as large amounts of fentanyl. Ms. Richards rejected the suggestion that the most likely explanation for why he was carrying a gun on the day that he killed Mr. Teme was that he is a drug and gun trafficker.

[39] Ms. Richards emphasized that her role as the author of the EPSR was to provide insight into the social history which contributed to the offending behaviour of the defendant. She observed that others are better placed to comment on the facts of the case and the court will consider all the evidence in determining the facts for sentencing.

[40] The jury rejected Mr. Khiar's claim to self defence, and I have found that Mr. Khiar was carrying a gun on July 1 because he was a habitual criminal. Ms. Richard's opinion on these points was based on an incomplete record and was solely dependent on the word of Mr. Khiar. I respectfully reject her conclusions on these points.

[41] There are other aspects of Ms. Richards’ conclusions which I do accept:

a. Black people are disproportionately stopped by police and are far more commonly subjected to the use of force: see R. v. Morris, 2018 ONSC 5186 at Appendix A, pages 15-17.
b. Black people have significantly fewer employment opportunities than people of other races and this is especially true of black people who have criminal records. Systemic racism results in fewer opportunities for programming, education, rehabilitation and social activities: Morris, Appendix A, pages 11-13.
c. Black offenders are far more likely to be viewed in the correctional system as high-risk offenders which leads to more restrictive treatment and fewer privileges: Morris, Appendix A, pages 18-20; and R. v. Williams, 2024 ONSC 109 at para. 43-44, 50.

[42] All these conclusions apply to Mr. Khiar. He faced significant obstacles when he arrived in Canada as a nine-year old boy and his opportunities to succeed were limited. His moral culpability for entering the drug trade must be viewed in that context.

[43] I cannot find any connection between Mr. Khiar’s experiences with systemic racism and the killing of Marcel Teme. Mr. Khiar was larger than Mr. Teme and could easily have responded with physical force to whatever provocation Mr. Teme offered. There was simply no cause to use a firearm. In my view, the social context evidence has little mitigating value for this offence.

Criminal Record

[44] Mr. Khiar was convicted of break and enter, assault with a weapon, and failure to comply with bail in 2005 when he was 20 years old. He served over four months of pretrial custody on those charges before receiving a suspended sentence and two years of probation. The court imposed a 10-year weapons prohibition order.

[45] In 2011, Mr. Khiar was intercepted discussing the purchase of firearms. A warrant was issued but he was not arrested until May 2013. He was found on arrest to be in possession of two handguns, two high-capacity magazines, and 25 cartridges of live ammunition. Mr. Khiar received a sentence of just under 18 months incarceration in addition to almost 2 ½ years of pretrial custody. He was barred for life from possessing a firearm.

[46] These were Mr. Khiar’s only convictions at the time of this offence. In considering his rehabilitative prospects, I note that he has since been convicted of possession of fentanyl for the purpose of trafficking and possession of firearms for the purpose of trafficking. At the time of sentencing, he was awaiting trial on the charge of first-degree murder. He has since been convicted of that offence.

Aggravating Facts

[47] Mr. Khiar has a significant criminal record which includes convictions for possession of loaded handguns and a lifetime firearms prohibition order. He admitted at trial that he was undeterred by that order and routinely carried a loaded firearm. That conduct is closely connected to the killing of Mr. Teme, and there is no unfairness to Mr. Khiar in relying on it as an aggravating fact on sentence: see section 725(1)(c) of the Criminal Code and R. v. Hoang, 2024 ONCA 361, at para. 65.

[48] Mr. Khiar showed no remorse for the killing. He remained at large for almost eight months after the offence during which time he continued to traffic in guns and drugs.

[49] Mr. Khiar knew that firing a powerful handgun eight times in a crowded marketplace would endanger bystanders. That likelihood was realized when he injured three young men.

[50] Mr. Khiar is not a youthful offender. He was 31 years of age on the day that he killed Mr. Teme and his prospects for rehabilitation appear to be negligible.

Mitigating Facts

[51] Mr. Khiar did not seek out an encounter with Mr. Teme. He had spent a quiet night with friends and was on his way home when he was approached by Mr. Teme. Mr. Khiar initially acted as a peacemaker between Mr. Osman and Mr. Teme and he did not withdraw his firearm until Mr. Teme ill-advisedly punched Mr. Osman. While I find the provocation in this case to be underwhelming, I am bound by the jury’s finding that it was sufficient to cause an ordinary person to lose self-control. Provocation is a mitigating factor which must be considered on sentence: see R. v. Stone, [1999] 2 S.C.R. 290 at para. 237.

[52] Mr. Khiar’s only criminal record for violence prior to the shooting of Mr. Teme was a 2005 conviction for assault with a weapon. He received a suspended sentence for that offence.

Analysis

Is this an appropriate case for a life sentence?

[53] The Crown submits that Mr. Khiar should be sentenced to life imprisonment for the unlawful killing of Mr. Teme. Ms. Jackson relies on the decision of the Court of Appeal in R. v. Husbands, 2024 ONCA 115.

[54] Husbands was an unusual case. In February 2012, Mr. Husbands had been forcibly confined and repeatedly stabbed by a group of men. He survived the attack but was badly injured. He did not cooperate with the police investigation and claimed he could not identify any of his attackers. Four months later, Husbands was in the food court at the Eaton Centre when he saw two of the men who had attacked him. The men walked past Husbands. After they passed, Husbands pulled a fully loaded handgun from his satchel and fired 14 shots towards them. Two people were killed (only one of whom had been involved in the earlier attack) and six innocent bystanders were injured. One of the bystanders was a 13-year-old boy who was shot in the head and suffered catastrophic injuries. At the time of the shooting, Husbands was on bail with a condition not to possess any weapons.

[55] The jury acquitted Husbands of two counts of murder and convicted him instead of two counts of manslaughter, five counts of aggravated assault, one count of criminal negligence causing bodily harm, and one count of recklessly discharging a firearm.

[56] The Crown submits that Mr. Khiar's offence is more serious than the offence committed by Husbands. Ms. Jackson points to the following:

a. The jury's verdict in Husbands arose from a doubt regarding the offender’s intention to kill. There is no doubt that Mr. Khiar intended to kill Mr. Teme.
b. Husbands had previously been attacked by at least one of the victims and there was evidence that he suffered from PTSD. There is no comparable mitigating circumstance in Mr. Khiar's case.
c. Husbands was only 23 years old at the time of the offence and had a far more difficult upbringing than Khiar.
d. Husbands had engaged in prosocial activities in the years preceding the shooting. He surrendered to police. Mr. Khiar has no history of prosocial behavior and committed further serious offences while evading police for eight months.
e. Both shootings occurred in a public space and caused injuries to innocent bystanders.
f. Both offenders were subject to court orders not to possess firearms.

[57] The Crown submits that an intentional killing must be more serious than an unintentional one and hence, Mr. Khiar's sentence should be no less than that of Mr. Husbands. I generally agree with that submission, but it is not a hard rule. In some cases, the provocation may be so great that it has enormous mitigating value despite the intentional nature of the killing. The basis for a finding of manslaughter is always an important consideration in sentencing, but I do not find that it is as determinative as the Crown suggests.

[58] Another important consideration in Husbands was the fact that the offender had served the equivalent of a ten-year sentence by the time that he was finally sentenced to life imprisonment. The trial judge declined to order that Husbands serve ten years prior to becoming eligible for parole and as a result, he was immediately eligible despite the imposition of a life sentence. The Court of Appeal cited this as an important factor in assessing the proportionality of the life sentence: see Husbands at paras 48, 96, and 116.

[59] It is uncommon for offenders convicted of manslaughter to be sentenced to life. The only other precedent provided by the Crown is R. v. Cheddesingh. The trial judge in Cheddesingh described the offence as one of “stark horror” and that characterization was endorsed by the Court of Appeal in upholding the sentence.

[60] There have been many cases in which courts have passed determinant sentences for offenders convicted of manslaughter involving firearms:

a. In R. v. Cheveldayoff, 2018 ONSC 6154, the defendant was accosted by the deceased and two other men. After escaping his assailants, the accused produced a handgun and fired six shots into the back of the deceased. The shooting occurred at a busy downtown Toronto intersection. The jury acquitted the accused of murder and convicted of manslaughter based on provocation. Mr. Cheveldayoff had a significant criminal record for violent offences, was on bail with a condition not to possess weapons and was subject to a firearms prohibition order. Justice Akhtar imposed a 16-year sentence.
b. In R. v. Gill, 2011 ONSC 2598, the accused was acquitted of murder based on provocation. He had a significant criminal record which included a prior conviction for possessing a loaded handgun. At the time of the killing, he was subject to three court orders not to possess weapons. The primary mitigating factor was that the offence was unplanned. He was sentenced to 10 years incarceration.
c. In R. v. Woodcock, 2010 ONSC 3752, the accused engaged in a gun battle on a crowded public street which resulted in the death of a 15-year-old bystander. The accused was 18 years old at the time of the offence and was subject to two firearms prohibition orders. He received a 12-year sentence.

[61] Comparing the cases of Mr. Khiar and Mr. Husbands, I find that Mr. Husbands’ offence was more serious. Husbands was as close to murder as a manslaughter can be: see Husbands at para. 125. The sentences for such offences are typically at the highest end of the range: see R. v. Almaktari, 2010 ONCA 802; and R. v. Higham, 2009 ONCA 147.

[62] There were more than 700 people in the Eaton’s Centre food court when Husbands opened fire. He killed two people and caused catastrophic injuries to a child. It was an extraordinarily public crime which had wide-ranging effects on the entire city of Toronto: see Husbands at para. 42. The need for denunciation in Husbands was enormous.

[63] Although there are significant similarities between Mr. Khiar’s offence and that of Husbands, I cannot find that the maximum sentence of life imprisonment is proportionate in this case.

The Appropriate Determinant Sentence

[64] The sentencing of Mr. Khiar is complicated by the fact that he is presently serving a lengthy sentence for offences which he committed after killing Mr. Teme. This raises the question of whether his sentence for manslaughter should be concurrent or consecutive to that sentence.

[65] Mr. Khiar has served the first 7 years of the 14-year sentence imposed by Justice McMahon on March 3, 2022. If he receives a consecutive sentence of 16 years for the killing of Mr. Teme, the total sentence would effectively be 30 years. There is little precedent for such a lengthy sentence, and some would describe it as a crushing sentence which could extinguish any hope for rehabilitation: see R. v. Parry, 2012 ONCA 171 at para. 20 and 23. If I impose the same sentence but order that it be served concurrently, Mr. Khiar would not suffer any further punishment for his earlier convictions. This would leave the impression that he benefited from his additional criminal behaviour and has been described as “the free ride error”: see R. v. P.K., 2012 MBCA 69 at para. 23.

[66] The Ontario Court of Appeal addressed an analogous situation in R. v. Johnson, 2012 ONCA 339. The accused was released on day parole while serving a 12-year sentence for robbery. He did not return to custody and instead committed nine more robberies. The sentencing judge imposed a 14-year sentence to be served consecutively to the 9-year remnant of the initial sentence. The Court of Appeal granted the defendant’s appeal and reduced the sentence from 23 years to 20 years. Justice Blair acknowledged the difficulty of determining a fit sentence for additional offences when an offender is already serving sentence. The offender must not be seen to benefit from his additional criminal activities, yet there must be a balance between passing a fit sentence and not imposing an unduly punitive one. The court provided the following guidance:

25 In Sentencing: The Practitioner's Guide, the authors suggest that "the court will balance the length of the unexpired term of the offender's sentence against the aggravating effect of the commission of an offence while on parole [or other form of temporary release]": Gary R. Clewley, Paul G. McDermott and Rachel E. Young, Sentencing: The Practitioner's Guide (Toronto: Canada Law Book, 2011), at para. 1.570(d). I agree to the extent that, at the end of the day, the subsequent sentencing judge will determine how much weight to give to the existing remaining sentence by assessing whether the length of the proposed sentence plus the existing sentence will result in a "just and appropriate" disposition that reflects as aptly as possible the relevant principles and goals of sentencing in the circumstances.

[67] The Crown and defence both submit that Mr. Khiar’s sentence for manslaughter should be served concurrently to his outstanding sentence. The Crown acknowledges that this will provide Mr. Khiar with a “free ride” but observes that if the sentence was ordered to be served consecutively and then adjusted to reflect totality, the result would be the same: see R. v. P.K., 2012 MBCA 69 at para. 27. Imposing a concurrent sentence has the benefit of clarity and avoids passing an unpalatably low sentence for the offence of manslaughter. The Crown seeks a 20-year concurrent sentence.

[68] Ms. Vanderheyden submits that a 15-year sentence would be fit. She notes that Mr. Khiar has served the first seven years of his sentence in very difficult circumstances which included the entirety of the COVID-19 pandemic. A sentence of 15 years in addition to the 7 years already served amounts to a total sentence of 22 years which is sufficiently punitive to satisfy all concerns regarding denunciation and deterrence.

[69] This offence falls into the “near murder” category. The last four shots were fired at point-blank range at a defenceless victim who appears to have been begging for his life. The provocation offered by Mr. Teme was slight and directed towards Mr. Osman, not Mr. Khiar. The accused is a mature offender who had previous gun convictions and was subject to a firearms prohibition order. Based solely on these considerations, I would impose a sentence of 16 years’ incarceration.

[70] The sentence must be adjusted, however, to accommodate the fact that Mr. Khiar is already serving sentence and will be able to serve the last seven years of that sentence concurrently with this one. This can be accomplished by increasing the sentence on the manslaughter conviction to 18 years. An 18-year sentence in addition to the 7-year sentence which Mr. Khiar has already served does reflect the gravity of the offence but leaves open the possibility of rehabilitation.

[71] As a litmus test of the proportionality of this sentence, I have considered whether Mr. Khiar could have resolved all his charges prior to trial for a joint submission of 25 years’ incarceration. In my view, that resolution would have been satisfactory if the Crown had been willing to accept it. The Crown understandably would not have accepted a plea to manslaughter, but that is the jury’s verdict. If Mr. Khiar had pleaded guilty to manslaughter, trafficking in firearms, and trafficking in fentanyl shortly after his arrest, I am certain that a global sentence of 25 years’ incarceration would have been considered an appropriate resolution. Mr. Khiar had to win his trial to reach that outcome, but that does not make the sentence any less proportionate.

The Application to Delay Mr. Khiar’s Eligibility for Parole

[72] The Crown seeks an order pursuant to section 743.6(1) of the Code that Mr. Khiar serve one-half of his 18-year sentence before becoming eligible for parole. That section reads in part as follows:

…the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.

[73] The Supreme Court of Canada provided guidance regarding the application of the section in R. v. Zinck, 2003 SCC 6. I draw the following from that decision:

a. A sentencing judge must apply the sentencing factors in deciding whether to restrict eligibility for parole with the emphasis being placed on deterrence and denunciation: para. 30.
b. The Crown bears the burden of demonstrating that additional punishment is necessary: para. 31.
c. The decision to delay parole is exceptional and should only be made when it is required to arrive at an appropriate sentence: para. 33; see also R. v. Wu, 2017 ONCA 620 at para. 34.

[74] Mr. Khiar's rehabilitative prospects are obviously very dim, but they cannot be described as negligible. He had a relatively modest criminal record prior to this offence and only one dated conviction for an offence of violence. He has never had the benefit of any rehabilitative treatment, and it is possible that he could make significant strides after receiving the intensive treatment which is available in federal correctional facilities. There is no evidence that he suffers from a psychological condition which would preclude him from benefiting from such treatment, particularly while serving a very long sentence.

[75] I find that the evidence does not justify the additional punishment of delaying eligibility for parole. The possibility of gaining release on parole is one of the few incentives which drive serious offenders like Mr. Khiar to take part in treatment. If that incentive is delayed, it could impede or extinguish any chance of rehabilitation. When Mr. Khiar becomes eligible for parole, the National Parole Board will have a fulsome record to consider whether he can safely be released into the community.

[76] For these reasons, the application pursuant to section 743.6(1) is dismissed.

The Sentence for the Aggravated Assault Convictions

[77] The jury also convicted Mr. Khiar of three counts of discharging a firearm while being reckless as to the life of another person and three counts of aggravated assault. These convictions arose from the injuries inflicted upon S.Y., T.G., and E.B. The Crown elected to provisionally stay the discharge firearms convictions and submitted that the sentences for the aggravated assault convictions be served concurrently with the manslaughter sentence.

[78] All three of the victims testified at trial and it was apparent that they were profoundly affected by the offences committed by Mr. Khiar. They were enjoying a quiet night in a peaceful public venue when they suddenly found themselves caught in a shooting zone. Although none of the three have submitted a victim impact statement, it can safely be said that they will never forget running for their lives as eight shots were fired in their direction.

[79] I will impose a seven-year concurrent sentence on count number five, the aggravated assault on E.B. He was hit in the left leg by a bullet or bullet fragment which caused a significant amount of bleeding. E.B. required five stitches to close the wound.

[80] I will impose a 10-year concurrent sentence on count number six, the aggravated assault on S.Y. He received a significant injury to the back of his head. Metallic fragments were removed from S.Y.’s head, and he was in hospital for five days recovering from bruising to his brain.

[81] I will impose a two-year concurrent sentence on count seven, the aggravated assault on T.G. He received an injury to his knee which he described as “a scratch”.

[82] There will be an order that Mr. Khiar provide a DNA sample for the National Databank and a section 109 Order for life.

Released: April 24, 2025

[1] Imposing a life sentence on Mr. Khiar would have a similar result. Mr. Khiar will become eligible for parole on the sentence passed by Justice McMahon in May 2025. If Mr. Khiar were to receive a life sentence for the killing of Mr. Teme, his sentence would be deemed to have commenced on the date of his arrest. He would be eligible for parole as early as February 19, 2026 (absent an order under section 743.6 of the Code.) Although it is unlikely that Mr. Khiar would receive early parole, the fact that he could become eligible so soon would detract from the denunciatory value of the sentence.