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Criminal - Attempted Murder. R. v. Osman [jury charges re included offence]
In R. v. Osman (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal, here "from a directed verdict of acquittal on a charge of being an accessory after the fact to murder".
The court considers jury charges, air of reality and included offences - here in an attempted murder context:(iv) There is no air of reality to the offence of being an accessory after the fact to attempted murder in this case
[95] Even if, as a matter of law, an offence is included in a charged offence, a trial judge is not required to instruct a jury on the included offence unless there is an air of reality to the included offence. The evidence adduced at trial must be such that it permits a reasonable jury, properly instructed, to conclude that the essential elements of the included offence have been established, but not those of the charged offence: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 75. See also Doxtator, at paras. 25-32; R. v. Chacon-Perez, 2022 ONCA 3, 410 C.C.C. (3d) 1, at paras. 161-67, 171; R. v. Ronald, 2019 ONCA 971, at paras. 42, 46-47; R. v. Durant, 2019 ONCA 74, 372 C.C.C. (3d) 66, at paras. 174-75; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 50-55; Sarrazin CA, at para. 62.
[96] In this case, whether there was an air of reality to the offence of being an accessory after the fact to attempted murder ultimately turns on the fact that there was no live issue at trial that the acts of the principal, Mr. Khiar, caused the death of the victim, Mr. Teme.
[97] The acts of the principal, Mr. Khiar, killed the victim. It was not in dispute that the shots he fired caused the death of Mr. Teme. There was only an air of reality to Mr. Khiar having committed murder or manslaughter. There was no air of reality to Mr. Khiar having committed attempted murder. This case is unlike Sarrazin and Forcillo because there was no live issue about causation of death.
[98] The same evidence was before the jury on the issue of causation of the victim’s death for Mr. Khiar on the murder charge and for the respondent on the accessory charge. Just as there was no air of reality to attempted murder for Mr. Khiar, there was no air of reality to accessory after the fact to attempted murder for the respondent.
[99] In this respect, I agree with the third point in the analysis of the same issue by Nordheimer J., as he then was, in Knott, at p. 10: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 Andred 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. [100] The trial judge’s ultimate conclusion in this case that there was no air of reality to accessory after the fact to attempted murder was based on similar reasoning: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.
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 [of] reality to Osman being found guilty of accessory after the fact to attempt murder.
....
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. [101] Duong 1998 is clear that in order to prove an accessory after the fact offence, the Crown needs to prove that the principal committed the specified offence or an included offence, and that, at the time the alleged accessory did the acts to assist the principal to escape, the accessory knew that the principal had committed the specified offence or an offence included in the specified offence. These requirements are found in the first two elements of the accessory offence. If there is no air of reality in the evidence at the accessory’s trial that the principal committed an included offence to the specified offence, the trial judge is not required to instruct the jury on being an accessory to an included offence. In this case, because there is no dispute that the acts of Mr. Khiar killed Mr. Teme, there was no air of reality to Mr. Khiar having committed attempted murder and therefore no requirement to instruct the jury on accessory after the fact to attempted murder.
[102] The Crown argues that this analysis is flawed because it does not account for s. 23.1 of the Criminal Code. In my view, this argument confuses the verdict against the principal with the need for evidence in the accessory’s trial about the specific offence committed by the principal and the accessory’s knowledge of the commission of the specific offence (or an included offence).
[103] I do not accept that s. 23.1 of the Criminal Code permits conviction of a person for being an accessory after the fact to attempted murder where there is no air of reality to the principal being guilty of attempted murder on the evidence in the trial of the accessory. Although s. 23.1 provides that the accessory can be convicted notwithstanding the fact that the principal cannot be convicted, it does not remove as elements of the accessory offence the requirement that the Crown prove that the principal committed the specified offence (or an included offence), and that the alleged accessory knew, at the time the accessory provided assistance to the principal, that the principal committed the specified offence (or an included offence): Watt’s Manual of Criminal Jury Instructions, Final 103; Duong 1998; Watt, “Accessoryship after the Fact”, at pp. 324-25; Stuart, Canadian Criminal Law, 8th ed., at p. 698; D. Murray Brown, “Accessory After the Fact”, at pp. 6-9. Nor does it remove the requirement that there be an air of reality before an included offence is put to the jury.
[104] The conclusion that there was no air of reality to the offence of being an accessory after the fact to attempted murder for the respondent is not dictated by the verdict entered against Mr. Khiar. As noted above, s. 23.1 of the Criminal Code makes whether Mr. Khiar was convicted and what he was convicted of irrelevant to whether the respondent is liable as an accessory. Rather, the conclusion is based on the evidence available in the respondent’s trial to satisfy the first two elements of the accessory offence.
[105] Those elements required the Crown to prove that Mr. Khiar committed either the specified offence of murder or an included offence to murder, and also that the respondent knew, at the time he assisted Mr. Khiar to escape, that Mr. Khiar had committed murder or an included offence to murder. Because the trial evidence did not raise a live issue as to causation of Mr. Teme’s death, the only available basis on the evidence for the Crown to satisfy the first two elements was that Mr. Khiar committed either murder or manslaughter. Attempted murder and being an accessory after the fact to attempted murder were not available offences to leave to the jury because, given the lack of dispute that Mr. Khiar caused the victim’s death, there was no air of reality to attempted murder.
[106] For the sake of completeness, I briefly address the Crown’s argument that s. 661 of the Criminal Code supports its argument in this case. I reject this argument. Section 661 has no application in the circumstances of this case and does not assist in interpreting the scope of ss. 660 and 662(1).
[107] Section 661[11] applies in circumstances where an accused is charged with an attempt to commit an offence, but the evidence establishes the commission of the complete offence.[12] That s. 661 applies only in circumstances where an accused is charged with an attempt offence is clear from its opening words: “Where an attempt to commit an offence is charged…”
[108] Because the respondent was not charged with an attempt to commit an offence, s. 661 has no application in this case. Nor does it apply indirectly through the specified offence of the principal as an element of the accessory offence charged against the respondent. The specified offence in the accessory count laid against the respondent was the complete offence of murder.
[109] Section 661 does not apply beyond its terms and does not stand for the general proposition that a person who has committed a complete offence can be convicted of an attempt to commit the offence. . R. v. Osman
In R. v. Osman (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal, here "from a directed verdict of acquittal on a charge of being an accessory after the fact to murder".
Here the court considers the tricky issue of whether "attempted murder [is] an included offence to murder" and whether "being an accessory after the fact to attempted murder [is] an included offence to being an accessory after the fact to murder":(iii) Is attempted murder an included offence to murder and is being an accessory after the fact to attempted murder an included offence to being an accessory after the fact to murder?
[71] A central focus of the Crown’s argument in this appeal is the contention that, because Duong 1998 holds that a person charged with being an accessory after the fact to murder can be convicted of being an accessory after the fact to an included offence to murder, if attempted murder is an included offence to murder, then being an accessory after the fact to attempted murder must be an included offence to being an accessory after the fact to murder.
[72] The Crown’s argument relies on two submissions about the relationship between a charge of murder and attempted murder. First, the Crown argues that attempted murder is an included offence to murder pursuant to both s. 660 and s. 662(1) of the Criminal Code. Second, the Crown argues that a conviction for attempted murder is possible even where the victim dies, relying on Sarrazin and Forcillo.
[73] As I will explain, I accept that the offence of attempted murder is included in a count charging murder, in circumstances where s. 660 of the Criminal Code applies. I am also prepared to assume, but do not decide, that attempted murder is an included offence under s. 662(1) by the enactment creating the offence of murder following the analysis in Tenthorey and Simpson (No. 2) for offences that are defined as including multiple means of commission. I also accept that in some cases where the victim dies, there may be an air of reality to an attempted murder verdict in relation to the principal. Where I part company with the Crown is that the jurisprudence is clear that cases in which attempted murder has an air of reality as a verdict for the principal despite the death of the victim are rare. This appeal is not one of those rare cases.
[74] In my view, the Crown seeks to extend the decisions in Sarrazin and Forcillo beyond their holdings and in a manner that is inconsistent with the requirement that an included offence have an air of reality before it is left to the jury.
[75] In both Sarrazin and Forcillo, attempted murder was available as a verdict for the principal because there was a triable issue about whether the causation of the victim’s death by the principal’s acts, an element of murder, was proven beyond a reasonable doubt. As I will explain, such cases are rare.
[76] The same caution extends to the offence of being an accessory after the fact to attempted murder as an included offence to being an accessory after the fact to murder. Pursuant to Duong 1998, as an included offence to murder, attempted murder can be considered as an included offence to the specified offence in a charge of being an accessory after the fact to murder. However, whether there is an air of reality to accessory after the fact to attempted murder will depend on the trial evidence. In practice, such cases will be rare. If there is no dispute on the trial evidence that the actions of the principal caused the death of the victim, there will be no air of reality to the offence of being an accessory after the fact to attempted murder.
(a) Attempted murder as an included offence to murder
[77] Sarrazin holds that s. 660 of the Criminal Code permits a conviction for attempted murder of a person charged with murder.[9] In other words, attempted murder can be an included offence to murder under s. 660.
[78] In Sarrazin, two accused were convicted of second-degree murder. The victim died after being shot by the accused, but there was a live issue on the trial evidence about whether the shooting caused the victim’s death. The accused argued on appeal that the trial judge erred in declining to instruct the jury on attempted murder as an included offence. This court and the Supreme Court of Canada agreed.
[79] Adopting the analysis of Doherty J.A. in this court on the included offence issue, the Supreme Court held that in the circumstances of Sarrazin, attempted murder should have been left to the jury as an included offence because there was medical evidence which could have allowed the jury to have a reasonable doubt about whether the accused caused the victim’s death: at paras. 20-21; Sarrazin CA, at paras. 26-29.
[80] Thus, it is clear from Sarrazin that where a count charges murder, attempted murder is an available verdict under s. 660 of the Criminal Code, and should be left to the jury, if the evidence raises an air of reality to a verdict of attempted murder. Importantly, however, s. 660 permits a conviction for attempted murder only when murder is charged “where the complete commission of the offence charged is not proved”.
[81] I turn then to whether attempted murder is an included offence to murder under s. 662(1) of the Criminal Code. Because of the holding in Sarrazin that attempted murder can, in appropriate cases, be an included offence to murder pursuant to s. 660 of the Criminal Code, it is not necessary to decide whether attempted murder is also an included offence to murder under s. 662(1) by virtue of being included in the enactment that creates the offence of murder.
[82] But I observe that there is force to the Crown’s argument that attempted murder is an included offence by the wording of the enactment creating the offence of a count charging murder, even though not every person who commits murder has the specific intent required for attempted murder. The argument to the contrary rests on the following steps of argument: (i) attempted murder requires the specific intent to kill according to R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225; (ii) murder as defined in s. 229 of the Criminal Code can be committed either with specific intent to kill or with the intent to cause bodily harm knowing that it is likely to cause death and being reckless as to whether death ensues; (iii) it is thus possible to commit murder without having specific intent to kill, a necessary element to attempted murder; (iv) this means that attempted murder is not “necessarily included” in the enactment creating murder.
[83] However, this chain of reasoning appears to be inconsistent with this court’s explanations in Tenthorey and Simpson (No. 2) of how included offences by the enactment creating the charged offence apply to offences that are defined in the enactment with multiple modes of commission. In the case of murder, a person charged with murder is on notice that the Crown can prove the required intent by proving either specific intent to kill or intent to cause bodily harm knowing that it is likely to cause death and being reckless as to whether death ensues.[10] Thus, where murder is charged, the accused is on notice that the intent required for attempted murder is in issue.
(b) Caution about when an air of reality will exist for attempted murder despite the death of the victim
[84] The fact that attempted murder is available as a verdict where murder is charged under s. 660, and assuming but not deciding that the same is true under s. 662(1), does not mean that attempted murder is available as an included offence in every case where murder is charged. In Sarrazin CA, after holding that s. 660 makes attempted murder an available verdict where murder is charged, Doherty J.A. added the following caution, at para. 62:In summary, s. 660 applies to murder charges. Section 660 puts an accused charged with murder on notice that he or she is in jeopardy of being convicted of attempted murder if the Crown fails to prove the completed offence. I would think that in most murder cases there will be no air of reality to the possibility of a conviction for attempted murder as causation will not be in dispute. In those cases, it will be unnecessary to instruct the jury on the accused’s potential liability for attempted murder. [Emphasis added.] [85] Thus, while attempted murder is available as a verdict where murder is charged, there must be an air of reality on the trial evidence for a trial judge to be required to instruct the jury on it. It is clear from the caution of Doherty J.A. expressed above that where causation of death is not a live issue, it will not be appropriate to leave attempted murder to the jury as an included offence because there will be no air of reality to attempted murder as a verdict. Sarrazin is one of the rare cases where there was an air of reality to an attempted murder verdict despite the death of the victim. That was because causation of death was a live issue on the trial evidence.
[86] I turn next to this court’s decision in Forcillo, which in my view stands for a similarly limited proposition. Forcillo was not a case about included offences. In Forcillo, the Crown laid two counts, one of murder and one of attempted murder. The Crown’s theory in Forcillo was that the accused fired shots at the victim in two volleys, which could be viewed for purposes of liability as separate transactions. The medical evidence supported that the first volley of shots caused the victim’s death, although not immediately. The jury found the accused not guilty of second-degree murder, but guilty of attempted murder. The jury’s verdict indicated that they accepted the accused’s claim of self-defence for the first volley of shots. Based on the medical evidence, the second volley of shots did not cause death. The jury’s verdict indicated that it found the Crown had disproved self-defence beyond a reasonable doubt for the second volley of shots, which were fired when the victim was already lying on the ground after the first volley of shots.
[87] The accused in Forcillo appealed, arguing that the conviction for attempted murder was inconsistent with the acquittal for second-degree murder. The issues on appeal focused on whether the two volleys were properly viewed as separate transactions and the principle of self-defence law that an accused is not required to judge defensive force to a nicety. Those issues are not relevant to this appeal. This court held that the differing verdicts on the two counts were not inconsistent. Implicit in this court’s analysis in Forcillo was an acceptance that attempted murder was available as a verdict despite the fact that the victim died. This was because there was evidence that the victim was still alive at the time of the second volley of shots, and the second volley of shots did not cause the death of the victim, who was fatally injured by one of the shots in the first volley: Forcillo, at para. 3.
[88] As in Sarrazin CA, the court in Forcillo commented on the uniqueness of the factual situation that allowed this result, at para. 8:The combination of verdicts returned by the jury presents an unusual, if not unique, result. The appellant stands acquitted of murdering Mr. Yatim and he stands convicted of attempting to murder Mr. Yatim, some 5.5 seconds later. In effect, the appellant has been convicted of attempting to murder the very same person he was found to have justifiably fatally shot just 5.5 seconds earlier. [89] What is common to Sarrazin and Forcillo is that in both cases, despite the fact that the victim died, the evidence – in particular as it related to cause of death – raised an air of reality with respect to the offence of attempted murder. As Doherty J.A. observed in Sarrazin CA, that is a rare situation in a murder trial.
[90] I would observe that the conclusion in Sarrazin CA that it will be a rare case where there is an air of reality to attempted murder as an included offence to murder is not only consistent with common sense and experience, but also consistent with the limitations in the text of ss. 660 and 662(1) of the Criminal Code with respect to attempts as included offences and included offences more generally. As outlined above, both s. 660 and s. 662(1) contain the limitation that they only apply to create included offences where the offence charged “is not proved”. In Sarrazin, because of the evidence that made causation of death a live issue, it was an error for the trial judge not to leave attempted murder to the jury as an included offence because there was an air of reality to the jury having a reasonable doubt that the acts of the accused caused the death of the victim and thus, a realistic possibility that the jury could find the offence charged (murder) was “not proved”.
(c) Accessory after the fact to attempted murder as an included offence to accessory after the fact to murder
[91] I return to the principle from Duong 1998 that a person charged with being an accessory after the fact to murder can be convicted of being an accessory after the fact to an included offence to murder. The example given in Duong 1998 is that a person charged with being an accessory after the fact to murder can be found liable for being an accessory after the fact to manslaughter. The issue in this appeal is whether the offence of being an accessory after the fact to attempted murder is an included offence to a charge of being an accessory after the fact to murder, where there is no dispute that the principal’s act caused the death of the victim.
[92] In light of my conclusion that attempted murder is an included offence to murder, it follows from Duong 1998 that a person charged with being an accessory after the fact to murder can be liable to be convicted of being an accessory after the fact to attempted murder on the basis that attempted murder is an included offence to murder, at least in circumstances where the evidence would support finding the principal guilty of attempted murder.
[93] The conclusion that attempted murder can be an included offence to murder, and, for that reason, the offence of being an accessory after the fact to attempted murder can be an included offence when the charge is being an accessory after the fact to murder, does not lead to the conclusion that in every case where an accused is charged with being an accessory after the fact to murder, a trial judge must instruct the jury on accessory after the fact to attempted murder as an included offence. A trial judge will be required to instruct a jury on accessory after the fact to attempted murder as an included offence only if there is an air of reality to that offence. The next section of these reasons addresses that issue.
[94] I flag one issue, which I return to below. As noted above, the offence of being an accessory after the fact to murder requires that the acts by the accessory to assist the principal to escape be committed after the victim dies. Consistent with this requirement, a count charging accessory after the fact to murder typically particularizes the count to acts committed by the accessory after the victim has died. This temporal particularization may raise issues of notice to the accused of the actions which are the subject of the charge (i.e., whether the particularization excludes actions before the death of the victim). I address that issue in the last section of these reasons. . R. v. Collins
In R. v. Collins (Ont CA, 2023) the Court of Appeal considered an appeal from murder and an attempted murder convictions. In these quotes the court considers the mens rea for attempted murder:[54] It has long been settled law in Canada that the mens rea for attempted murder is a specific intention to kill: see The Queen v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225, at pp. 250-251; and R. v. Cunningham, 2023 ONCA 36, at para. 36. This corresponds with the direct intent for murder in s. 229(b) – “meaning to cause death to a human being”. However, the secondary or oblique intent in s. 229(a)(ii),(b) – “meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not” – is not an available pathway to a conviction for attempted murder: see R. v. Boone, 2019 ONCA 652, 56 C.R. (7th) 432, at para. 51; R. v. Tyrell, 2021 ONCA 15, at para. 14; and R. v. Weng, 2022 BCCA 332, 418 C.C.C. (3d) 338, at para. 82. In short, nothing but a specific intent to kill will suffice.
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