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Criminal - Included Offences (3). 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.
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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.
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