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Criminal - Jury - 'Air of Reality' (2). 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. . R. v. Bhogal
In R. v. Bhogal (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from a jury conviction for first degree murder.
The court considers the 'air of reality' required to send an issue to the jury, here the defence of 'extreme intoxication' which has been held akin to automatism:[57] Trial judges are required to instruct juries on all defences that have an “air of reality”. A defence will have an air of reality when there is “evidence upon which a reasonable trier of fact, properly instructed in law and acting judicially, could conclude that the defence succeeds”: R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at paras. 57, 70. For most defences, where the Crown bears the onus of disproving the defence on the criminal standard of proof, the defence will succeed if the Crown cannot disprove at least one of its essential elements beyond a reasonable doubt. However, for reverse onus defences, including the defence of extreme intoxication akin to automatism, the defence will only succeed if the accused affirmatively establishes the defence’s essential elements on a balance of probabilities.
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[60] .... While some people who experience drug-induced psychosis may become so impaired that their actions can no longer be seen as volitional, not everyone who experiences psychotic symptoms – that is, delusions, hallucinations, or disordered thinking – will be affected so severely. The question of whether drug-induced psychotic symptoms caused a particular accused to enter an impaired mental state akin to automatism will depend on the circumstances and the evidence in that case. For instance, in R. v. Chan, the companion case that was decided together with Sullivan, this court ordered a new trial rather than entering an acquittal on the grounds that even though the trial judge had made a finding that the accused was experiencing “psychosis induced by intoxication”, he had “made no finding that Mr. Chan was not acting voluntarily” or that he had “reached the stage of automatism”: Sullivan (C.A.), at paras. 164, 166.[1]
[61] The same is true of the related question of whether the defence of extreme intoxication akin to automatism has an air of reality. For instance, in R. v. Morris, 2024 SKCA 36, 435 C.C.C. (3d) 490, where the Saskatchewan Court of Appeal found that it was an error for the trial judge not to have left the defence with the jury, the accused had adduced psychiatric opinion evidence that he had been acting in an automatistic state when he committed two robberies and sexually assaulted one of the robbery victims. If the jury had accepted this evidence, it would have permitted the jurors to find that the accused had met his burden of establishing the defence of extreme intoxication akin to automatism.
[62] There are some factual parallels between Morris and the appellant’s case. Like the appellant, the accused in Morris had no prior criminal record, and “some of [his] actions surrounding the criminal acts in question were bizarre”: Morris, at para. 101. However, the accused in Morris also had a history of unusual behaviour when he drank heavily, and “[t]here was also medical evidence of a past incident of a dissociative experience”: Morris, at para. 101. The most critical difference is that Dr. Rootenberg, unlike the forensic psychiatrist who testified for the defence in Morris, was never asked to give an opinion about whether the appellant’s possible cocaine-induced psychosis rose to the level where he was in a state akin to automatism. The appellant’s experienced trial counsel appears to have made a considered decision not to raise this issue with Dr. Rootenberg, and Crown counsel unsurprisingly did not do so herself in cross-examination.
[63] Absent any expert opinion evidence that the appellant’s cocaine consumption had caused him to act non-volitionally, as opposed to merely acting bizarrely or irrationally, perhaps because he was experiencing hallucinations, delusional beliefs or disordered thinking, there was in my view no air of reality to the defence of extreme intoxication akin to automatism.
[64] While I agree with Mr. Lockyer that there was considerable other evidence in the trial record that the appellant had acted bizarrely and irrationally that night, and that his conduct was seemingly out of character, this evidence was not capable, considered along with the appellant’s testimony about his lack of memory, of establishing on a balance of probabilities that his actions that night were non-volitional, rather than merely caused by his drug-impaired thought processes. Without expert evidence that the specific drugs the appellant had consumed that night (that is, cocaine and alcohol) were capable of causing extreme intoxication akin to automatism, it would have been speculative for the jury to jump to the conclusion that the appellant’s intoxication was so severe that he was no longer acting of his own volition.
[65] In my view, the appellant’s experienced trial counsel, despite initially indicating that the appellant would be seeking to advance the defence of extreme intoxication akin to automatism, correctly recognized at the end of the trial that the evidence that had been presented to the jury did not support this defence. This is why he took the position that this defence should not go to the jury. On the evidential record, the trial judge likewise made no error by not instructing the jury on this defence. . R. v. Othman
In R. v. Othman (Ont CA, 2025) the Ontario Court of Appeal considered the 'air of reality' test for issues to be put before the jury:(ii) The Air of Reality Test
[44] The air of reality test screens what defences are put to the jury. A trial judge must put to the jury all defences which have an air of reality and must keep from the jury any that do not: Cinous, at para. 51.
[45] The test requires the trial judge to determine whether there is an evidential foundation for the defence, without usurping the jury’s role. In determining whether a defence has an air of reality, the trial judge is to consider “whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue”. The question is whether there is evidence on which a reasonable jury, properly charged, could – if they believed that evidence – have acquitted the accused: Cinous, at paras. 54, 60.
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(v) The Air of Reality Test and the Defence of Mistaken Belief in Consent in Cases of Conflicting Narratives
[53] The same air of reality test applies to the defence of mistaken belief in consent as to any other defence: Cinous, at para. 57. The defence will be left with the jury only if it has an air of reality. There must be an evidential foundation that, if accepted by the jury, can satisfy the requirements of the defence in light of the legal limitations on its availability. This necessarily requires that the trial judge consider whether there is any evidence upon which a reasonable trier of fact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed the complainant communicated consent: Barton, at para. 121; Davis, at para. 81.
[54] Deciding on which side of the air of reality line a particular case falls is important. For both practical and policy reasons, judges have been cautioned against being too eager to put the defence of mistaken belief in consent to the jury because it is the rare exception, rather than the general rule, that a sexual assault will have been committed by accident: Park, at para. 21.
[55] The defence may arise in cases where the complainant and the accused have given similar versions of the facts, and the only material contradiction is in their interpretation of what happened. In such cases “the defence of honest but mistaken belief in consent should generally be put to the jury, except in cases where the accused's conduct demonstrates recklessness or wilful blindness to the absence of consent”: Park, at para. 26.
[56] In other cases, the events that occurred are described in diametrically different terms by the complainant and the accused. In some of those cases, the issue will simply be one of consent or no consent and the trial becomes, essentially, a pure question of credibility as between the complainant’s version and that of the accused with no third possibility of a mistaken belief in consent arising: Davis, at paras. 84-85. As the Supreme Court noted in Park, at para. 26:[C]ourts have generally refused to put the defence of honest but mistaken belief in consent to the jury when the accused clearly bases his defence on voluntary consent, and he also testifies that the complainant was an active, eager or willing partner, whereas the complainant testifies that she vigorously resisted. In such cases, the question is generally simply one of credibility, of consent or no consent. [57] But the existence of diametrically opposed versions does not, in and of itself preclude the possibility of there being an air of reality to the defence of mistaken belief in consent, where “a reasonable jury could cobble together some of the complainant's evidence and some of the accused's evidence to produce a sufficient basis for such a defence” or, put differently, where it is “realistically possible for a properly instructed jury, acting judiciously, to splice some of each person's evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent”: Park, at para. 25. One important consideration in deciding whether splicing or cobbling together is realistically possible is whether “the acceptance of one version [would] necessarily involve the rejection of the other”: Park, at para. 25.
[58] An example of when “cobbling” can occur is when the accused testifies to having taken reasonable steps to ascertain consent and the complainant has no memory of what transpired. In such a case, the cobbled together version does not include mutually excusive strands. In R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777, at para. 19, the majority explained:The absence of memory by the complainant as to what happened in the bedroom makes it easier to “cobble together” parts of both the accused and complainant’s evidence to reach a reasonable conclusion of honest but mistaken belief. Any number of things may have happened during the period in which she had no memory. The evidence of the accused combined with the lack of memory of the complainant and, as previously noted, the absence of violence, struggle or force, when taken together makes plausible and gives an air of reality to the defence of mistaken belief. [59] In Davis, at paras. 85-86, the court highlighted another consideration relevant to deciding whether it is realistically possible to “splice together the evidence [from two diametrically opposed versions of what occurred] to create a third version of events in which the accused honestly but mistakenly believed the complainant consented”. The nature of the evidence must go beyond the mere assertion that the accused believed the complainant consented and include evidence of a “situation of ambiguity”. The court endorsed the statement of McLachlin J. (as she then was) in Esau, at para. 63 (although made in dissent) that:There must be evidence not only of non-consent and belief in consent, but in addition evidence capable of explaining how the accused could honestly have mistaken the complainant’s lack of consent as consent. Otherwise, the defence cannot reasonably arise. There must, in short, be evidence of a situation of ambiguity in which the accused could honestly have misapprehended that the complainant was consenting to the sexual activity in question. [Emphasis added.] [60] The requirement that a version of events, spliced together from different and contrasting sources of evidence, present a situation of ambiguity before the defence of mistaken belief in consent will reasonably arise has been explained in some cases as the equivalent of a situation where the parties versions differ not about what happened, but how to interpret what happened: R. v. Gilbert, 2024 BCCA 310, at para. 36, quoting with approval R. v. Hoffman, 2024 BCCA 98, at para. 148, adopting the statement in R. v. Comin, 2022 BCSC 530, at para. 34; R. v. Sheikh, 2025 ONCJ 10, at para. 99.
[61] To summarize, the mistaken belief in consent defence may have an air of reality even in a case which primarily presents as one of consent or no consent based on diametrically opposed narratives. But in the words of Park, at para. 25, it will only have an air of reality if it is “realistically possible for a properly instructed jury, acting judiciously, to splice some of each person's evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent”. That will not be the case where the cobbled together scenario consists of strands of evidence that are mutually exclusive in the sense that acceptance of one would involve the rejection of the other. Further, the cobbled together scenario must be a “situation of ambiguity” – one in which there is both no consent and evidence that explains how the accused took reasonable steps but nonetheless could honestly have mistaken the complainant to have communicated consent of a nature required by the Code.
[62] If cobbling or splicing together of evidence from diametrically opposed versions in a manner that respects these parameters cannot be achieved, there is no air of reality to the defence. “If the stories cannot realistically be spliced in such a manner, then the issue really is purely one of credibility – of consent or no consent – and the defence of mistaken belief in consent should not be put to the jury”: Park, at para. 25. . R. v. Richer
In R. v. Richer (Ont CA, 2025) the Ontario Court of Appeal considered the 'air of reality' standard in order for an issue to be put to the jury:[16] .... The air of reality test is whether there is evidence on which, if believed, a properly instructed jury acting reasonably could acquit: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 49, 60. Whether or not there is an air of reality to a defence such as duress is a question of law, subject to appellate review on the standard of correctness: Cinous, at para. 55; Pan, at para. 35. The air of reality test “requires the trial judge to consider whether the inferences required to be established for the defence to succeed can reasonably be supported by the evidence”: Cinous, at para. 86. However, the trial judge does not determine the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinative factual inferences: Cinous, at paras. 54, 87. That is the role of the jury. . R. v. Copeland
In R. v. Copeland (Ont CA, 2025) the Ontario Court of Appeal considers the recently amended murder defence of 'provocation' (which is described as a partial defence as it can reduce murder to manslaughter) and the 'air of reality' standard which must apply before an issue is put to a jury:(1) The Defence of Provocation
[33] The Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29, s.7, amended s. 232(2) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, or the statutory partial defence of provocation. The amended provision applies to cases where the alleged murder occurred after July 15, 2015.
[34] The legislation as amended narrowed the defence of provocation by replacing the phrase “wrongful act or insult” with “conduct of the victim that would constitute an indictable offence under [the Criminal Code] that is punishable by five or more years of imprisonment”: R. v. Brar, 2024 ONCA 254, 171 O.R. (3d) 321, at paras. 26-30.
[35] The offence date in this case was October 27, 2014. Therefore, the predecessor provision applied. Accordingly, these reasons correspond to the state of the statute prior to amendment, which included reference to a “wrongful act or insult”. In these reasons, I will use the term “wrongful act”, which in today’s terms would be an indictable offence punishable by five years or more of imprisonment.
[36] Provocation has been referred to as an “allowance made for human frailty”: R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 17 O.R. (2d) 673 (C.A.), at p. 682; R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 22. It is by its very nature, predicated on a loss of self-control arising from a wrongful act. It has four constituent elements. The first two are the objective elements and the second two are the subjective elements:. There must be a wrongful act (objective element);
. The wrongful act must be sufficient to deprive an ordinary person of the power of self-control (objective element);
. The accused must have acted in response to the wrongful act (subjective element); and
. The accused must have “acted on the sudden” before there was time for the accused’s passion to cool (subjective element). R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at paras. 28, 34.
[37] If there is an air of reality to provocation, then the onus rests on the Crown to disprove the partial defence. Disproving any of the elements beyond a reasonable doubt will cause the defence to fail: Tran, at para. 41.
[38] As with any defence, provocation must be left for the jury’s consideration if there exists a sufficient evidentiary foundation to permit a properly instructed jury, acting reasonably, to give effect to the defence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 49; R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at para. 23. Although the accused’s evidence is often an important factor when considering whether a defence (or partial defence) has an air of reality, there can be an evidentiary foundation for a defence even in circumstances where the accused specifically disavows the evidence or contradicts its legitimacy: R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 33; R. v. Gill, 2009 ONCA 124, 241 C.C.C. (3d) 1, at paras. 18-21; and R. v. Barrett, 2022 ONCA 355, 162 O.R. (3d) 425, at para. 69. At paras 42-86 the court considers the 'air of reality' provocation issue on the facts and in light of relevant case law.
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